author: SHAW, Senior Justice. PARIENTE, J.,

text:
    Thomas PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-1013.
    Supreme Court of Florida.
    March 27, 2003.

      Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Seventeenth Judicial Circuit, Fort Lauderdale, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and Maria J. Patullo, Joseph A. Tringali, and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   SHAW, Senior Justice.

We have for review Parker v. State, 780 So.2d 210 (Fla. 4th DCA 2001), wherein the district court expressly declared valid a state statute. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We affirm.

I. FACTS

Parker was arrested June 27, 2000, and charged with aggravated fleeing and eluding, resisting arrest without violence, and driving with a suspended license. He posted a $2700 bond and was released. He subsequently was arrested on August 24, 2000, for possession of cocaine with intent to sell and possession of marijuana. He posted a $2500 bond and was released. At the status conference on the June 27 case, the State notified the court of the second arrest and asked the court to revoke Parker’s bond in the first case. Defense counsel objected and the following colloquy took place:

MR. KIRSCH: I’m asking you to revoke his bond on this case.
MS. ESTRUMSA: Judge, I received absolutely no notice of this. I believe the State’s required as your Honor is aware to give at least three hours notice so that I can prepare something.
THE COURT: Not with — the statutes. Reading the statute the Court can do it on its own based on reading it in chambers. I don’t have to receive any motion; I don’t have to receive any offer, just finding there is probable cause.
I’m finding there is probable cause for the new arrest. I have read the probable cause affidavit. The Court finds there is probable cause. The Court is revoking the bond. He can file any motion to set bond.
THE DEFENDANT: Your Honor, I won’t be able to re-bond out.
THE COURT: You’re being held on a no bond hold on the case once I revoke that bond.
THE DEFENDANT: What?
MS. ESTRUMSA: Judge, at this time for the record I would object. The State has provided absolutely no notice prior to doing this ore tenus motion, has not filed any written motion.
They have not given me an opportunity to have any heads up about this revoking of bonds, nor am I able to provide a written motion myself.
At this time Mr. Parker has employment. He is going to lose his job if your Honor should revoke his bond. He has made it to today’s court date. There is absolutely no reason to revoke his bond at this time other than the fact he picked up a new charge.
As your Honor knows he is presumed innocent of these charges until proven by the State that he is guilty beyond a reasonable doubt. I ask that you reconsider your revoking of the bond at this time, your Honor.
THE COURT: The reason why the bond is being revoked is because the court finds there is probable cause for the new arrest. The State gives the Court the authority to do that. That’s what I’m doing. On this case the calendar call is November 9th. The trial date is November 13th.

Parker was remanded into custody without bond. He later filed a motion to reconsider the bond revocation, contending that section 903.0471, Florida Statutes (2000), is unconstitutional. The court on October 12 and 17, 2000, conducted hearings on the motion, held the statute constitutional, and denied the motion. Parker filed a petition for a writ of habeas corpus in the district court; the court denied the petition. Parker sought review before this Court.

The issue posed in the present case is whether section 903.0471, Florida Statutes (2000), is constitutional. At the hearing on October 17, 2000, the trial court heard argument of counsel concerning the constitutionality of section 903.0471 and declared the statute constitutional. No evidence was adduced and the trial court made no findings of fact. Its ruling thus constitutes a pure question of law, subject to de novo review.

II. THE CONSTITUTIONAL AND STATUTORY SCHEMES

The presumption of innocence is a basic tenet of our criminal justice system and attaches to each person charged with a crime. Article I, section 14, Florida Constitution, gives effect to this presumption. Prior to 1983, that section read as follows:

SECTION 14. Bail. — Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.

Art. I, § 14, Fla. Const. (1968).

Effective January 1, 1983, the section was amended to broaden the group of persons who could be denied bail and later was modified in other ways:

SECTION 14. Pretrial release and detention. — Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Art. I, § 14, Fla. Const, (emphasis added). To implement the 1983 amendment, the Legislature enacted statutory sections 903.046 and 907.041, which set forth criteria for bail determinations and pretrial release.

III. CHANGES IN THE STATUTORY SCHEME

Subsequent to the above constitutional amendment and statutory enactments, a conflict arose among Florida’s district courts. The courts agreed that under the then-current statutory scheme a trial court could revoke bond when a defendant violated a condition of pretrial release, but the courts differed as to what should happen if the defendant then reapplied for pretrial release. The Third District Court of Appeal held that the matter fell squarely within the discretion of the court, whereas the Fourth District Court of Appeal held that the issue was governed by the provisions of section 907.041. This Court, in order to consider the issue, granted review in Paul v. Jenne, 728 So.2d 1167 (Fla. 4th DCA 1999).

While Paul was pending, the Legislature addressed the issue by enacting several statutory provisions. First, the Legislature amended section 907.041(4) to read as follows:

(c) The court may order pretrial detention if it finds a substantial probability ... that any of the following circumstances exists:
1. The defendant has previously violated conditions of release and that no further conditions of release are reasonably likely to assure the defendant’s appearance at subsequent proceedings;
2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process;
3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal proceedings; or
4. The defendant is charged with DUI manslaughter, as defined by s. 316.193, and that there is a substantial probability that the defendant committed the crime and that the defendant poses a threat of harm to the community
5.The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.
6. The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed; or
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.

§ 907.041(4), Fla. Stat. (2000) (emphasis added).

Second, the Legislature amended section 903.046 to read as follows in relevant part:

(2) When determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court shall consider:
(j) Whether there is probable cause to believe that the defendant committed a new crime while on pretrial release.

§ 903.046, Fla. Stat. (2000) (emphasis added).

And finally, the Legislature enacted section 903.0471, which provides as follows:

903.0471 Violation of condition of pretrial release. — Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.

§ 903.0471, Fla. Stat. (2000).

This Court subsequently issued its decision in State v. Paul, 783 So.2d 1042 (Fla.2001), holding that the above enactments did not apply retroactively and were inapplicable to Paul. Unlike the situation in Paul, however, the crimes in the present case took place after the effective dates of the above enactments and are governed by the enactments.

IV. THE CONSTITUTIONALITY OF SECTION 903.0471

Parker claims that section 903.0471 is unconstitutional for three reasons: it violates the plain language of article I, section 14, Florida Constitution; it violates substantive due process; and it violates procedural due process.

A. The Plain Language of Section U

Parker’s main claim is that section 903.0471 violates the plain language of article I, section 14, because it fails to require specific findings. We disagree. The district court below addressed this claim as follows:

Parker argues that section 903.0471 is unconstitutional as violating Article I, section 14 of the Florida Constitution which allows pretrial detention if “no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.” In Bams, however, Judge Gross explained in regard to the new legislation:
The statutory changes plainly implement the trial court’s discretion to impose pretrial detention within the limits of Article I, Section 14 of the Florida Constitution, which affords the trial judge wide latitude in the decision to deny bond.... The legislative intent behind section 907.041 was not to narrow the breadth of the trial court’s discretion under the state constitution, but to be coextensive with it.
Barns [v. State], 768 So.2d [529] at 532-33 [ (Fla. 4th DCA 2000) ]. Bams, as we said earlier, involved a violation of a condition which was not a new crime, and thus was analyzed under 907.041, not section 903.0471. Our conclusion, however, that the trial judge’s decision to deny pretrial release was still circumscribed by the Florida Constitution, would be equally applicable where the defendant committed a new crime and was being detained under section 903.0471. The statute does not, accordingly, violate the Constitution. As we noted earlier, the trial court not only found probable cause that Parker had committed the new crime while on pretrial release, but also found, consistent with Article I, section 14, that detention was necessary to protect the community from the risk of physical harm.

Parker, 780 So.2d at 212. The district court properly applied the law on this claim, as explained below.

As noted above, article I, section 14, was amended in 1983 to broaden the scope of persons who could be denied bail:

SECTION 14. Pretrial release and detention. — Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Art. I, § 14, Fla. Const, (emphasis added). Contrary to Parker’s claim, this section contains no requirement that a court articulate findings prior to denying pretrial release.

Subsequent to the above amendment, the Legislature in 1984 enacted section 903.047, which provided in relevant part:

903.047 Conditions of pretrial release.—
(1) As a condition of pretrial release, whether such release is by surety bail bond or recognizance bond or in some other form, the court shall require that:
(a) The defendant refrain from criminal activity of any kind ....

§ 903.047, Fla. Stat. (Supp.1984) (emphasis added). This section reasonably may be viewed as implementing the third criterion for detention in amended article I, section 14 (i.e., where no conditions of release can “assure the integrity of the judicial process”), for the commission of a crime by a pretrial releasee unquestionably impugns the integrity of the judicial process — the defendant in effect is “thumbing his nose” at the court.

After section 903.047 was enacted, the Legislature later gave “teeth” to that section’s proscription by enacting section 903.0471. As noted earlier, section 903.0471 provides:

903.0471 Violation of condition of pretrial release.—
Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.

§ 903.0471, Fla. Stat. (2000). Under this provision, a court may summarily revoke pretrial release and order detention upon a finding of probable cause that the releasee committed a new crime. Contrary to violating the plain language of article I, section 14, this statutory section works hand-in-hand with section 14 to “assure the integrity of the judicial process.”

B. Substantive Due Process

Parker contends that section 903.0471 violates substantive due process because the “probable cause” burden of proof is too low a burden on which to base pretrial detention. We disagree. The district court below addressed this claim thusly:

Parker also argues that section 903.0471 violates substantive due process because it authorizes a court to deny a second pretrial release upon finding probable cause that a defendant committed a new crime, which is less than the burden on the state when pretrial detention is sought under section 907.041. The cases cited by Parker, however, do not involve pretrial detention, but rather the standard of proof in criminal cases. In light of our conclusion that the statute is to be interpreted consistent with Article I, section 14 of the Florida Constitution, we do not agree with Parker that probable cause, which is a sufficient basis on which to make an arrest, is too low a standard to be constitutional.

Parker, 780 So.2d at 212-13. The district court properly applied the law relative to this claim, as explained below.

Various standards of proof are used in criminal proceedings wherein a defendant may be deprived of his or her liberty. For instance, “probable cause” is required for an arrest; “substantial probability” is required for an initial order of pretrial detention; “in the discretion of the court” is required for denial of probation; “in the conscience of the court” is required for the revocation of probation; and “beyond a reasonable doubt” is required for a criminal conviction.

The type of proceeding that is at issue in the present case, i.e., a revocation of pretrial release, is similar in nature to a revocation of probation, for both proceedings involve the revocation of a significant form of legal restraint. Similarly, the “probable cause” standard that is called for in section 908.0471 is no more onerous for a defendant than the “in the conscience of the court” standard that traditionally has been used in revocation of probation proceedings. Further, in light of the fact that a court may initially order pretrial detention based on the “substantial probability” standard, it is logical for a court to apply a less forgiving standard (i.e., “probable cause”) when a detainee seeks release following a subsequent violation.

C. Procedural Due Process

Finally, Parker contends that section 903.0471 violates procedural due process because it does not require an adversarial hearing prior to revocation of pretrial release. Again, we disagree. The district court below addressed this claim thusly:

Nor do we agree with Parker that his procedural due process rights were violated because he did not receive the procedural safeguards contained in section 907.041, which is applicable to initial pretrial release hearings. Parker cites no authority for the proposition that he is entitled to more due process than is guaranteed by Article I, section 14 of the Florida Constitution. Having received those safeguards, his due process rights were not violated.

Parker, 780 So.2d at 213. The district court properly applied the law on this claim, as explained below.

The United States Supreme Court in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), held that a probable cause determination may be rendered by a judicial officer without an adversarial hearing:

These adversary safeguards are not essential for the probable cause determination required by the [constitution]. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for an arrest. That standard — probable cause to believe that the suspect has committed a crime— traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof....
The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.

Gerstein, 420 U.S. at 120-22, 95 S.Ct. 854 (footnotes and citations omitted). In light of the fact that a Florida defendant is accorded a full adversarial hearing under section 907.041 upon his or her initial application for pretrial release, the requirements of article I, section 14, Florida Constitution, are satisfied by the dictates of section 903.0471 upon subsequent violation.

V. CONCLUSION

Based on the foregoing, we approve Parker v. State, 780 So.2d 210 (Fla. 4th DCA 2001), and hold that section 903.0471, Florida Statutes (2000), comports with article I, section 14, Florida Constitution, and with the Due Process Clauses of the state and federal constitutions as explained herein.

It is so ordered.

WELLS, LEWIS and QUINCE, JJ, and HARDING, Senior Justice, concur.

PARIENTE, J., concurs in result only with an opinion, in which ANSTEAD, C.J., concurs.

PARIENTE, J.,

concurring in result only.

Although I agree that the revocation of Parker’s pretrial release did not violate his constitutional rights, I believe that the majority has gone further than necessary to reach this conclusion.

In this case, the trial court denied pretrial release under section 903.0471, Florida Statutes, finding probable cause to believe that Parker had committed a crime while on pretrial release, and also finding, in a subsequent hearing, “consistent with Article I, Section 14, that detention was necessary to protect the community from the risk of physical harm.” Parker v. State, 780 So.2d 210, 212 (Fla. 4th DCA 2001). Based on the trial court’s findings as to both probable cause and the existence of one of the criteria of article I, section 14, the Fourth District rejected Parker’s constitutional challenges to section 903.0471. Regarding the claim that the statute violates article I, section 14, the Fourth District stated that the trial judge’s decision to deny pretrial release under section 903.0471 is “circumscribed by the Florida Constitution.” Id. The Fourth District rejected the assertion that the “probable cause” standard in the statute violates substantive due process “[i]n light of our conclusion that the statute is to be interpreted consistent with Article I, section 14.” Id. at 213. Regarding Parker’s procedural due process claim that he did not receive adequate procedural safeguards, the Fourth District found that “[h]aving received those safeguards [in article I, section 14], his due process rights were not violated.” Id. Thus, the Fourth District expressly declared section 903.0471 valid, and we exercised our discretion to review this decision under article V, section 3(b)(3) of the Florida Constitution.

The majority now approves the decision of the Fourth District, but, departing from the Fourth District’s rationale, suggests that in order to deny pretrial release under section 903.0471, the trial court need not make findings consistent with the requirements of article I, section 14. The majority states: “Contrary to Parker’s claim, [article I, section 14] contains no requirement that a court articulate findings prior to denying pretrial release.” Majority op. at 878. The majority essentially concludes that a probable cause determination that a defendant has committed a new crime while on pretrial release equates to a finding that pretrial detention is necessary to assure the integrity of the judicial system, satisfying article I, section 14.

The conclusion that an article I, section 14 finding is not required is, in my view, not necessary to our assessment of the constitutionality of section 903.0471 in a case in which the trial court did in fact articulate an article I, section 14 finding. Had the trial court not made the additional finding in this case, I would be reluctant to conclude that a trial court’s determination in a nonadversarial hearing that there is probable cause to believe that the accused committed a crime while on pretrial release comports with either article I, section 14, or due process of law. I discuss these concerns in greater detail below.

ARTICLE I, SECTION 14

As amended in 1983, article I, section 14 provides, in pertinent part: “If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.” The initial constitutional question posed by section 903.0471, as construed by the majority, is whether a finding of probable cause that the defendant has committed a new crime while on pretrial release, without any additional findings, satisfies the language in article I, section 14 authorizing pretrial detention of an accused if no conditions of release can assure the integrity of the judicial process.

This question should be answered in the negative, because section 903.0471 creates an irrebuttable presumption. I do not agree that the mere fact of an arrest for another crime, without regard for the nature of the crime or adequate testing of the level of proof, conclusively demonstrates that “no conditions of release can ... assure the integrity of the judicial process.” Contrary to the conclusion of the majority, commission of a new crime does not necessarily impugn the integrity of the judicial process and thereby obviate the need for an explicit finding to that effect in order to comport with article I, section 14. Under section 903.0471, the crime for which the defendant might be arrested could range from driving with a suspended license to possession of drug paraphernalia, misdemeanors that do not inherently undermine the integrity of the judicial process when allegedly committed by a person on pretrial release.

In some situations, the violation of a condition of release not involving criminal conduct impugns the integrity of the judicial process more than the commission of a new crime. For example, a defendant who leaves the county, state, or country, contrary to the conditions of release, or one who makes contact with an alleged victim in violation of the mandatory condition of pretrial release under section 903.047(2), is — in the majority’s phrase — “thumbing his nose” at the court to a greater degree than one arrested for a drug or traffic misdemeanor unrelated to the original charges. These violations may also put the community or persons at risk of physical harm or place the defendant’s appearance at trial in doubt. However, section 903.0471, as construed by the majority, does not require a finding of any of the three constitutional criteria for pretrial detention.

I am concerned that this construction leaves the statute fraught with potential for abuse. The irrebuttable presumption that a second alleged offense impugns the integrity of the judicial process may result in the detention of a presumably innocent defendant until trial, often months in the future, even where the evidence supporting the second offense is weak. Illustrating this concern are the facts in State v. Paul, 783 So.2d 1042 (Fla.2001), in which we held that the defendant had been improperly detained based solely on the fact of the second arrest. Although the defendant in Paul was arrested for drug and firearm offenses, the State subsequently filed an information only on a misdemean- or cannabis charge and a “no information” on the remaining charges. Id. at 1043 n. 2.

Therefore, I believe that section 903.0471 as construed by the majority is on precarious constitutional footing under article I, section 14. To avoid unconstitutional application of this statute in future cases, I would require the trial court to not only make the probable cause determination explicitly required by the statute, but also to find that based on this finding, no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process. Without a requirement of this latter finding, I cannot conclude that section 903.0471 comports with article I, section 14 under all conceivable circumstances.

SUBSTANTIVE DUE PROCESS

In the absence of a required finding of one of the article I, section 14 criteria, I am further concerned with the standard for determining whether a new crime has been committed. The majority observes that the “probable cause” standard in section 903.0471 is no higher than the traditional “in the conscience of the court” standard to establish a violation of probation, and that it is an appropriately less forgiving standard than “substantial probability,” used for an initial order of pretrial detention under section 907.041(4)(c), Florida Statutes. See majority op. at 879. There are several problems with this analysis. Initially, revocation of pretrial detention and probation revocation are not analogous, in that the first occurs while the accused retains his presumption of innocence and the second takes place after that presumption has been removed via a plea or guilty verdict. We expressly recognized this distinction in Bernhardt v. State, 288 So.2d 490 (Fla.1974), in which we upheld a statute providing that a subsequent felony arrest of a person on probation is prima facie evidence of a violation of probation. As we explained in Bernhardt:

Probation revocation is an entirely different stage of the criminal-correctional process. The probationer has been convicted of a crime, subjected to the sanctions prescribed by law, and has been granted conditional release in order to serve the interests of society. The interests which the government may protect at this stage of the process are properly much broader than before trial. Since a conviction has been obtained, for example, it is hardly unreasonable to use incarceration pending the revocation hearing to protect society against the possible commission of additional crimes by the probationer. There is no presumption of innocence in the probation revocation process, at least not in the sense in which the phrase is used with reference to the criminal process. Hence, when a probationer is incarcerated pending a hearing, the balance of interests is not the same as that involved in confining an accused who has not been found guilty. This is a fundamental distinction from the pre-trial stage....

Id. at 498 (quoting In re Whitney, 421 F.2d 387, 338 (1st Cir.1970)).

Next, in stating that it is logical to apply a less forgiving standard than the “substantial probability” standard contained in section 907.041(4)(c), the majority does not identify several important distinctions between that statute and section 903.0471. First, section 907.041(4)(c) links the “substantial probability” standard to the “defendant’s past and present patterns of behavior,” and requires evaluation of the criteria for bail determination in section 903.046, which include the likelihood of appearance in future proceedings and unreasonable danger to the community. Second, all but one of the subsections in section 907.041(4)(c) require findings consistent with article I, section 14 concerning the prospects for appearance at trial, threat of harm to the community or obstruction of the judicial process.

In comparison to the “comprehensive and specific framework” of section 907.041, see Paul, 783 So.2d at 1052, the probable cause standard of section 903.0471 is tied only to the commission of an offense while on pretrial release. Section 903.0471 thus makes a novel use of the venerable concept of probable cause. Probable cause has been employed in American jurisprudence to justify Fourth Amendment searches and seizures (including detentions), but has not been utilized to revoke pretrial release, to which a defendant has a constitutional right under article I, section 14, solely on the possibility that the accused has committed another crime. See Gerstein v. Pugh, 420 U.S. 103, 122, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (discussing “Fourth Amendment determination of probable cause” in the context of a determination of grounds to detain). Accordingly, I cannot conclude that the “probable cause” standard, rather than the substantial probability standard used in section 907.041(4)(c), comports with the requirements of substantive due process for denial of the constitutional right to pretrial release on reasonable conditions.

PROCEDURAL DUE PROCESS

As stated by the majority, Gerstein does not require an adversarial hearing for a probable cause determination. See majority op. at 879-80. However, this holding applies only to the initial determination of the validity of a detention under the Fourth Amendment. The Supreme Court in Gerstein observed that the sole issue in an initial probable cause hearing is “whether there is probable cause for detaining the arrested person pending further proceedings,” which, the Court concluded, “can be determined reliably without an adversary hearing.” 420 U.S. at 120, 95 S.Ct. 854. Article I, section 14 brings additional considerations to bear on the complete denial of bail, triggering the need for an adversarial hearing. The absence of an adversarial hearing makes the probable cause determination under section 903.0471 an irrebuttable presumption that the article I, section 14 criteria for pretrial detention are satisfied, resulting in an indefinite deprivation of liberty and offending due process. Cf. Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (conclusive presumption would conflict with overriding presumption of innocence).

CONCLUSION

Although I have deep reservations as to whether section 903.0471 as construed by the majority comports with article I, section 14 of the Florida Constitution or affords procedural or substantive due process, I conclude that the provision was not unconstitutionally applied to Parker. In this case, the lower courts applied section 903.0471 as if the article I, section 14 findings were required. Additionally, the October 12 and 17, 2000, proceedings on Parker’s motion to reconsider the bond revocation were in effect an adversarial hearing on the statutory and constitutional criteria, satisfying procedural due process. Finally, because the trial court also made the finding required by article I, section 14 that no conditions of release could protect the community from harm, I cannot conclude that the use of the constitutionally suspect “probable cause” standard for denial of the right to pretrial release resulted in a prejudicial denial of substantive due process. Accordingly, I join in the majority’s approval of the Fourth District decision, but do so based on the reasoning of the Fourth District rather than that of the majority of this Court.

ANSTEAD, C.J., concurs.

      . At the October 12 hearing, the assistant state attorney noted that Parker’s August 24 arrest netted thirty-five to forty-five rocks of crack cocaine and that Parker had numerous prior convictions. In denying the motion to reconsider the revocation of bond, the court ruled as follows:
      I have considered his prior record of convictions. There is no evidence as to failures to appear at court, and I have also considered the nature and probability of danger that the Defendant’s release poses to the community. Including the fact that I have read the Probable Cause Affidavit.
      I find that there was probable cause for the new arrest even as recent as last night. This gentleman, Mr. Parker, according to the Probable Cause Affidavit, he ran two stop signs. Unfortunately, examples of that — as of last night I think in Broward County a little boy was killed just under the same incidents or the same similar facts, but in any event his failure — and the last item is the Court has also considered the fact that he was on bond in another case when he was arrested for this matter.
      The motion to set bond is denied on Mr. Parker, and I know that you have arguments that you want to put on the record with Ms. Cuddihy. When she comes in we’ll take care of that if we still have time.

      . See, e.g., State v. Glatzmayer, 789 So.2d 297, 301-02 n. 7 (Fla.2001) ("If the ruling consists of a pure question of law, the ruling is subject to de novo review.”).

      . See, e.g., Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”).

      . This section, entitled "Purpose of and criteria for bail determination,” provided in relevant part:
      (2) When determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider:
      (a) The nature and circumstances of the offense charged.
      (b) The weight of the evidence against the defendant.
      (c) The defendant’s family ties, length of residence in the community, his employment history, his financial resources, and his mental condition.
      (d) The defendant's past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings.
      (e) The nature and probability of danger which the defendant’s release poses to the community.
      (f) The source of funds used to post bail.
      (g) Whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of a sentence.
      (h) Any other facts the court considers relevant.
      § 903.046, Fla. Stat. (Supp.1982).

      . This section, entitled "Pretrial detention and release,” provided in relevant part:
      (b) The court may order pretrial detention if it finds a substantial probability ... that:
      1. The defendant has previously violated conditions of release and that no further conditions of release are reasonably likely to assure the defendant’s appearance at subsequent proceedings;
      2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process;
      3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal proceedings; or
      4. The defendant poses the threat of harm to the community. The court may so conclude if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.
      § 907.041(4), Fla. Stat. (Supp.1982).

        . See State v. Paul, 783 So.2d 1042, 1044-45 (Fla.2001).

      . This Court in State v. Paul, 783 So.2d 1042 (Fla.2001), stated as follows:

        We agree with the reasoning of [the Fourth District in] Paul. The Florida Constitution guarantees the right to bail with limited exceptions, and in accordance with this guaranty, the Legislature has created a comprehensive and carefully crafted scheme for setting forth the circumstances under which a defendant may be held in pretrial detention. Accordingly, although the breach of a bond condition provides the basis for revocation of the original bond, the trial court’s discretion to deny a subsequent application for new bond is limited by the terms of [section 907.041].

        Paul, 783 So.2d at 1051 (footnote omitted).

      . See, e.g., § 901.15(6), Fla. Stat. (2000) ("A law enforcement officer may arrest a person without a warrant when ... [t]here is probable cause to believe that the person has committed a criminal act....").

      . See § 907.04 l(4)(c), Fla. Stat. (2000) (“The court may order pretrial detention if it finds a substantial probability ... that any of the following circumstances exists....”).

      . See, e.g., Bernhardt v. State, 288 So.2d 490, 494 (Fla.1974) ("Initially, we must remark that the grant of probation rests within the broad discretion of the trial judge

      . See, e.g., Bernhardt, 288 So.2d at 495 (“[T]he evidence upon which to predicate a revocation [of probation] introduced at the hearing must be sufficient to satisfy the conscience of the court that a condition of probation has been violated.”).

      . See, e.g., Nixon v. Singletary, 758 So.2d 618, 621 (Fla.2000) ("[T]he Due Process Clause ... protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).

      . See, e.g., Bernhardt v. State, 288 So.2d at 495.

      . See § 907.041(4)(c), Fla. Stat. (2000).

      . This Court has previously adopted similar prophylactic measures to ensure that a statute is constitutionally applied. See, e.g., State v. Townsend, 635 So.2d 949, 957 (Fla.1994) (to clarify possible inconsistencies between statute and United States Supreme Court precedent, initial determination of reliability of child abuse hearsay statement under section 90.803(23), Florida Statutes, must be made without regard to corroborating circumstances); Dep’t of Law Enforcement v. Real Property, 588 So.2d 957, 968 (Fla.1991) (civil forfeiture statute containing "multitude of procedural deficiencies” construed to comport with requirements of due process of law).

      . As a collateral matter, I question the reference to the “conscience of the court” standard for evaluating alleged probation violations. In our recent decision in State v. Carter, 835 So.2d 259 (Fla.2002), this Court stated:
      Trial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence....

      ... The trial court has broad discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence. See Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996); Harris v. State, 610 So.2d 36 (Fla. 2d DCA 1992).

        Id. at 261-62. As suggested by the citation to the First and Second District decisions, our repeated reference to the “greater weight of the evidence” and "willful and substantial” standards in Carter is consistent with the bulk of recent precedent in the district courts reviewing probation revocations. See also Tobias v. State, 828 So.2d 1066, 1068 (Fla. 4th DCA 2002); Lane v. State, 761 So.2d 476, 477 (Fla. 3d DCA 2000); Thomas v. State, 760 So.2d 1138, 1139 (Fla. 5th DCA 2000). These standards are more reliable gauges both for the trial court’s determination and appellate review than the less precise "conscience of the court” language of Bernhardt v. State, 288 So.2d 490, 495 (Fla.1974).

      . The exception is contained in section 907.04 l(4)(c)6., Florida Statutes, which authorizes pretrial detention if: "The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed....” This Court has not been called upon to determine the validity of this subsection.


source: Caselaw Access Project

author: QUINCE, J. WELLS, J.,

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Keely KAKLAMANOS, Respondent. Veron Caravakis, Petitioner, v. Allstate Indemnity Company, Respondent.
    Nos. SC01-2444, SC02-198.
    Supreme Court of Florida.
    April 3, 2003.

      Yancey F. Langston and Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, FL, and Peter J. Valeta of Ross & Hardies, Chicago, IL, on behalf of Allstate Insurance Company; and Tony Griffith and Timothy M. Ingram of Tanney Eno, Tanney, Griffith & Ingram, P.A., Clearwater, FL, on behalf of Veron Cara-vakis, Petitioners.
    David Lee Sellers, Pensacola, FL, on behalf of Keely Kaklamanos; and Anthony J. Parrino of Reynolds & Stowell, P.A., and Peter J. Valeta of Ross & Hardies, Chicago, IL, on behalf of Allstate Indemnity Company, Respondents.
    David B. Shelton and Candy L. Mes-sersmith of Rumberger, Kirk & Caldwell, Orlando, FL, for National Association of Independent Insurers, Amicus Curiae.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae.
   QUINCE, J.

We have for review Kaklamanos v. Allstate Insurance Co., 796 So.2d 555 (Fla. 1st DCA 2001), and Caravakis v. Allstate Indemnity Co., 806 So.2d 548 (Fla. 2d DCA 2001), which expressly and directly conflict with each other on the issue of whether certiorari review by the district court of appeal was proper. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we approve the decision by the First District Court of Appeal in Kaklamanos and quash the decision by the Second District Court of Appeal in Caravakis.

Both of these cases involve the ability of an insured party to maintain an action against the insurer for nonpayment of personal injury protection (PIP) automotive insurance benefits when the insured has not paid the medical bills in question and the medical provider has not instituted legal action against the insured for nonpayment. The factual circumstances of the cases are very similar. Both cases involve individuals who filed complaints in county court against their insurance company after the company refused to pay PIP benefits for the medical services on the basis that the treatments were not medically necessary or reasonable. In both cases, the insurance company moved for summary judgment, asserting that the insureds had not suffered any damages because they had not paid the medical bills and had not been sued for payment by the medical provider. A provision in the insurance contracts provided that the insurance company would defend and indemnify the insureds should the medical provider sue for payment. In each case, the county courts granted the insurance company’s motion for summary judgment and entered final judgment in favor of the insurance company. On appeal, the circuit courts affirmed the final judgments. The insureds then sought certiorari review in the district court of appeal. In Kaklamanos the First District found certiorari review to be proper; the Second District reached the opposite conclusion in Caravakis. The insureds then sought review by this Court on the basis of the conflicting decisions on whether certiorari review was proper under the factual circumstances presented. For purposes of clarity, we describe the factual circumstances of each case below.

FACTUAL AND PROCEDURAL BACKGROUND

Keely Kaklamanos sought medical treatment from Nu-Best Diagnostics for injuries she sustained in an automobile accident that occurred approximately one year earlier. Kaklamanos’s insurance company, Allstate Insurance Company (Allstate), refused to pay for the medical services on the basis that the treatment was not medically necessary. Kaklamanos then filed a complaint against Allstate in Escambia County Court on the theory that failure to pay a medical bill that Kaklamanos had forwarded to Allstate breached the PIP and medpay provisions of her motor vehicle insurance policy.

Allstate filed a motion for summary judgment, asserting that Kaklamanos had not suffered any damages because she had not paid the medical bill and had not been sued for payment by Nu-Best Diagnostics. A provision in Kaklamanos’s insurance contract with Allstate provided for indemnification should the medical provider sue the insured for payment. The county court granted Allstate’s motion for summary judgment, ruling that there were “no damages to pursue in this action nor can any result in the future” and entered final judgment in favor of Allstate. On appeal, the First Judicial Circuit Court affirmed the final judgment.

Kaklamanos then sought certiorari review by the First District Court of Appeal. The district court first concluded that cer-tiorari jurisdiction could be properly exercised because “[examination of the record, including the briefs filed in circuit court, persuades us that the circuit court applied the incorrect law in the present case. We reach and decide the merits of the petition because the court’s purely legal error was ‘sufficiently egregious or fundamental.’ ” Kaklamanos, 796 So.2d at 557-58 (footnote omitted) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 531 (Fla.1995)). The district court then addressed the merits of the petition and quashed the circuit court’s order, holding that the complaint sufficiently alleged damages and that Kak-lamanos could sue Allstate for benefits without paying the medical bills herself or being sued by the medical provider. See id. at 561.

Veron Caravakis sought medical care from an orthopedic surgeon for injuries he sustained in a motor vehicle accident. The bills from that physician were submitted to Caravakis’s automobile insurer, Allstate Indemnity Company (Allstate). Caravakis filed a complaint against Allstate in Pinel-las County Court, alleging that Allstate failed to pay PIP payments that were due. Allstate had paid some of Caravakis’s medical expenses, but only the amount it deemed reasonable and necessary. The policy provided that Allstate may refuse to pay for medical expenses that it deemed to be “unreasonable or unnecessary” but would defend and indemnify Caravakis if he was sued by a medical provider for the amount Allstate refused to pay. The county court granted summary judgment in favor of Alstate. On appeal, the Sixth Judicial Circuit Court affirmed, concluding that Caravakis suffered no damages until sued by a medical provider.

Caravakis then sought certiorari review by the Second District Court of Appeal. The district court denied Caravakis’s petition, finding that his argument presented “a matter of statutory interpretation unsuitable for the limited standard of review in a certiorari proceeding.” Caravakis, 806 So.2d at 550. The Second District concluded that there are no appellate cases repudiating the policy endorsement at issue and thus “the circuit court cannot be said to have violated a clearly established principle of law.” Id. at 549-50.

With this factual background, we first address the conflict issue of whether cer-tiorari review was proper under the factual circumstances presented.

CERTIORARI REVIEW

The nature and scope of certiorari review in Florida has been refined over the years. As this Court recently explained, certiorari review is “appellate in character in the sense that it involves a limited review of the proceedings of an inferior jurisdiction.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995). However, certiorari should not be used to grant a second appeal, but instead is limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of law. See id. at 526.

As explained in Ivey v. Allstate Insurance Co., 774 So.2d 679, 682 (Fla.2000), the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. See id.; Heggs, 658 So.2d at 528.

Ivey involved the standard that the district courts must follow in determining whether to grant certiorari review of a circuit court’s appellate decision. This Court reiterated the standard from Heggs (whether the circuit court afforded procedural due process and applied the correct law) and Combs v. State, 436 So.2d 93, 95 (Fla.1983) (explaining that district courts should exercise certiorari discretion only when there has been a violation of clearly established principles of law resulting in a miscarriage of justice). We concluded that the Third District Court of Appeal inappropriately exercised certiorari review in Ivey where the district court merely disagreed with the circuit court’s interpretation of the applicable PIP law. The Third District found “an erroneous interpreta tion of [PIP] law to be important enough for certiorari” based on “the pervasiveness of automobiles and PIP coverage in this state.” Allstate Ins. Co. v. Ivey, 728 So.2d 282, 283 n. 2. (Fla. 3d DCA 1999) (emphasis added). Thus, the Ivey court explicitly-stated that it based its certiorari review on disagreement with the result of the circuit court sitting in its appellate capacity. As this Court noted in its review of Ivey, the district court’s decision “did not even purport to consider why the circuit court’s decision constituted a denial of procedural due process, application of incorrect law, or a miscarriage of justice, as required by this Court’s precedents.” Ivey, 774 So.2d at 683.

In the instant cases, the two district courts applied the proper standard of certiorari review as outlined in Ivey and Heggs, yet reached opposite conclusions regarding the appropriateness of certiorari jurisdiction to review the circuit courts’ appellate decisions holding that an insured has no standing to bring a breach of contract action against an insurer based on the refusal to pay medical expenses if the insured has incurred no out-of-pocket expenses, the medical provider has not brought a collection action against the insured, and the policy contains a defend and indemnify provision should such action ensue. In Caravakis, the Second District denied the petition for certiorari, finding that the circuit court had afforded procedural due process and applied the correct law in its appellate review. See Caravakis, 806 So.2d at 549. The Second District noted that there were no appellate cases repudiating the policy endorsement at issue and thus Caravakis could not meet the threshold requirements for certiorari relief. See id. at 550. In Kaklamanos, the First District applied the same certiorari standard, but concluded that the circuit court had applied the incorrect law and that it was sufficiently egregious or fundamental to require certiorari review. See Kaklamanos, 796 So.2d at 557-558.

After reviewing a number of cases involving certiorari review, we conclude that the Second District has too narrowly interpreted what constitutes “clearly established law” for purposes of certiorari review. See, e.g., Rader v. Allstate Ins. Co., 789 So.2d 1045 (Fla. 4th DCA 2001), review dismissed, 816 So.2d 128 (Fla.2001); Progressive Express Ins. Co. v. MTM Diagnostics, Inc., 754 So.2d 150 (Fla. 2d DCA 2000); Globe Life & Accident Ins. Co. v. Preferred Risk Mut. Ins. Co., 539 So.2d 1192 (Fla. 1st DCA 1989). These cases illustrate that “clearly established law” can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certio-rari review.

In Kaklamanos, the First District concluded that the circuit court’s appellate decision was in conflict with the PIP statute, which provides that PIP benefits are due and payable as the loss accrues and such benefits are overdue if not paid within thirty days after written notification of the covered loss. The district court also concluded that the circuit court’s decision conflicted with a number of cases interpreting this thirty-day pay requirement. See Kaklamanos, 796 So.2d at 558-61. The First District was “persuade[d]” that “the circuit court applied the incorrect law” and that this legal error was “sufficiently egregious or fundamental” to fall within the limited scope of the district court’s certiorari jurisdiction. Id. at 557-58.

As explained more fully below, we agree with the First District that the lower courts’ interpretation of damages is too narrow and is inconsistent with both the intent and language of the PIP statute and the general principles governing contracts. Thus, we find that the First District properly exercised its certiorari jurisdiction to address the merits of Kaklamanos’s petition. Conversely, we conclude that the Second District should have granted cer-tiorari review in Caravakis.

FLORIDA’S NO-FAULT INSURANCE LAW

We turn now to the merits of the underlying issue, namely whether an insured has standing to bring a breach of contract action against an insurer where the insurer refuses to pay medical expenses but the insured has incurred no out-of-pocket expenses, the medical provider has not brought a collection action against the insured, and the policy contains a defend and indemnify provision should such action ensue. We begin our discussion by examining the background and general principles of Florida’s no-fault insurance law.

The Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes (2001), which was enacted in 1971, was intended to provide a minimum level of insurance benefits without regard to fault. See § 627.731, Fla. Stat. (2001); United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001). Under this statutory scheme, each driver collects certain statutorily required medical, disability, or death benefits regardless of fault. See Mansfield v. Rivero, 620 So.2d 987, 988 (Fla.1993). As this Court has explained, the general policy underlying the no-fault insurance law includes

a lessening of the congestion of the court system, a reduction in concomitant delays in court calendars, a reduction of automobile insurance premiums and an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.

Lasky v. State Farm Ins. Co., 296 So.2d 9, 16 (Fla.1974).

The statutory provision at issue in the instant case is section 627.736(4), which describes when personal injury protection (PIP) benefits are due and the method by which notice must be given. The intent of this provision is to promote the prompt resolution of PIP claims. See Rodriguez, 808 So.2d at 86. Under section 627.736(4), PIP benefits “shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy.” An insured may seek the payment of benefits for a covered loss by submitting “reasonable proof’ of such loss to the insurer; if the benefits are not paid within thirty days and the insurer does not have reasonable proof that it is not responsible for the payment, the payment is “overdue.” See § 627.736(4)(b), Fla. Stat. (2001); Rodriguez, 808 So.2d at 86. However, even where written notice is furnished to the insurer as provided by the statute, a payment is not deemed overdue “when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” § 627.736(4)(b), Fla. Stat. (2001). Moreover, the insurer is not barred from contesting the claim just because a payment becomes overdue. See Rodriguez, 808 So.2d at 86; AIU Ins. Co. v. Daidone, 760 So.2d 1110, 1111 (Fla. 4th DCA 2000). If the insurer is ultimately found hable for a contested claim, then the statutory penalties of interest and attorney’s fees would be applicable. See § 627.736(4)(c), (8), Fla. Stat. (2001); Rodriguez, 808 So.2d at 89 (Pariente, J., concurring).

Allstate argues that an insured does not have standing to bring an action for PIP benefits if he or she has not paid the unpaid medical expenses or the medical provider has not instituted a collection action against the insured. The county and circuit courts agreed with Allstate’s argument and granted summary judgment in Allstate’s favor in each case. In Kaklamco-nos, the county court concluded that there were “no damages to pursue in this action nor can any result in the future,” and the circuit court affirmed this judgment. 796 So.2d at 557. These courts concluded that the defend and indemnify provision in the insurance policy precluded any possible damages to the insured for unpaid medical expenses. See id. In Caravakis, the circuit court affirmed the county court’s summary judgment because “Caravakis suffered no damages until sued by a medical provider.” 806 So.2d at 549.

This Court has not specifically addressed the effect of such a defend and indemnify provision in an automobile insurance policy. However, we have noted that an insured’s cause of action against the PIP insurer “is a first party claim in contract for failure to pay the contractual obligation for personal injuries sustained, regardless of fault.” State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 820 (Fla.1996) (emphasis added) (concluding that the statute of limitations runs from time the insurer denies the PIP claim because this is the date that the contract is breached) (quoting Levy v. Travelers Ins. Co., 580 So.2d 190, 191 (Fla. 4th DCA 1991)). The Second District has similarly explained that actions for PIP benefits “are to be governed by the general principles of contract law.” Donovan v. State Farm Fire & Cas. Co., 574 So.2d 285, 286 (Fla. 2d DCA 1991) (finding that statute of limitations began to run when insurer declined to make further payments after initially accepting a PIP claim, making payments thereon for three years, and then refusing further benefits).

While these discussions were in the context of the statute of limitations, it is clear that actions for PIP benefits are based on the insurance contract and thus are governed by contract principles. As the Second District explained in Donovan, “[wjheri parties are voluntarily acting pursuant to a contract, there is no cause of action upon that contract until a breach occurs. In regard to insurance contracts, a specific refusal to pay a claim is the breach which triggers the cause of ac-tion_” Id. (citation omitted). The county and circuit courts in the instant cases erred by evaluating the insureds’ actions for PIP benefits in terms of damages, rather than looking at the actions in terms of a breach of contract.

As the First District explained in Kaklamanos, an insured is under no obligation to assign PIP benefits to his or her medical providers and may not be able to pay such bills without first receiving PIP or medpay benefits. 796 So.2d at 560. Thus, “[a]n insured may be damaged by an insurance company’s failure to pay a claim even if the insured has not already paid or been sued by the medical provider,” and should be entitled to sue a defaulting insurer for PIP and medpay benefits. Id. at 561; see also Burgess v. Allstate Indem. Co., 823 So.2d 130, 132 (Fla. 2d DCA 2002) (concluding that “an insured’s right of action against the PIP and medpay insurer arises thirty days after written notice to the insurer that reasonable and necessary medical treatment covered by the insurance has resulted in a debt”).

Moreover, the county and circuit courts in the instant cases looked only at economic losses in assessing the insureds’ damages. In the context of PIP benefits, we note that an insured can suffer noneco-nomic injuries even before he or she pays a medical bill or faces a collection: action by a medical provider. For example, in denying Allstate’s motion for summary judgment on the same grounds in a different case, an Escambia County Court judge noted that the indemnification provision “effectively drives a wedge between the medical care provider and the patient by forcing them into adversarial positions,” “imposes additional expense and delay in payment of contested medical benefits by requiring the medical provider to file suit against the insured,” and “ignores the harmful consequences to an insured’s credit history and financial future caused by the mere filing of a credit driven law suit.” Jones v. Allstate Ins. Co., 7 Fla. L. Weekly Supp. 541, 542 (Fla. Escambia Cty. Ct. Mar. 26, 2000); see also Andrews v. Allstate Ins. Co., 7 Fla. L. Weekly Supp. 613 (Fla. Escambia Cty. Ct. June 21, 2000) (finding that insurer’s promised defense was not unqualified and that insured’s responsibility for attorney’s fees in a law suit with the medical provider where PIP coverage was exceeded was a sufficient injury for standing purposes); Decker v. Allstate Prop. Cas. Ins. Co., 7 Fla. L. Weekly Supp. 145 (Fla. Broward Cty. Ct. Oct. 22, 1999) (finding that PIP payments are first-party benefits and insured need not be sued by medical provider prior to filing suit against insurer).

In addressing a similar argument that the insured lacked standing to bring an action against the insurer based on a similar defend and indemnify provision, an Illinois appellate court also noted that such an approach “threatens irreparable injury to the doctor-patient relationship” and “invites the filing of lawsuits in an already congested court system.” Puritt v. Allstate Ins. Co., 284 Ill.App.3d 442, 219 Ill.Dec. 845, 672 N.E.2d 353, 355-56 (1996). Thus, the Illinois court concluded that insureds need not “wait until lawsuits against them were filed [by medical providers] or collection agents began harassing them or their credit files were red-flagged” to have standing. Id. at 356.

Other jurisdictions have also concluded that an insured “incurs” medical expenses for purposes of PIP benefits when he or she accepts medical treatment. See, e.g., Dutta v. State Farm Ins. Co., 363 Md. 540, 769 A.2d 948, 961 (2001) (holding that insured incurred medical expenses when he was admitted to the hospital, received medical treatment, and signed an agreement to pay expenses and that granting of PIP benefits was both appropriate and mandatory); Shanafelt v. Allstate Ins. Co., 217 Mich.App. 625, 552 N.W.2d 671, 676 (1996) (concluding that insured incurs expenses when medical treatment is accepted and thus medical bills are allowable expenses under no-fault insurance, even though a health insurer actually pays the bills).

Allstate cites a number of cases from other jurisdictions in support of its lack-of-standing argument. Most of the cases cited are distinguishable from the instant cases. For example, in Huntt v. State Farm Mutual Automobile Insurance Co., 72 Md.App. 189, 527 A.2d 1333 (1987), the court affirmed the dismissal of the insured’s action because the insured refused to comply with the condition precedent of submitting to an independent medical examination by the insurer’s physician. In Ostrof v. State Farm Mutual Auto. Insurance Co., 200 F.R.D. 521 (D.Md.2001), the district court did not dismiss the case for lack of standing. Instead, the court denied the insureds’ motion for class certification because they did not meet the class requirements of numerosity, commonality, typicality, and adequacy of representation. In Ny v. Metropolitan Property & Casualty Insurance Co., 1998 Mass.App. Div. 179, 1998 WL 603138 (Mass.Dist.Ct.1998), aff'd, 51 Mass.App.Ct. 471, 746 N.E.2d 578 (2001), a Massachusetts appellate court concluded that summary judgment was proper because the insured was not an “unpaid party” under the Massachusetts statute because the insurer had obtained releases from the medical providers agreeing to accept as full payment what the providers had already received from the insurer. Finally, in Kinnard v. Allstate Insurance Co., No. 992-00812 (Mo.Cir.Ct. Nov. 15, 1999), a Missouri circuit court dismissed a breach of contract claim against Allstate because the plaintiff failed to state facts indicating how his submission of damages and Allstate’s refusal to pay the claim in full gave rise to the plaintiffs alleged damages of thirteen dollars. While the Missouri court order mentions that there was no allegation that the plaintiff incurred any out-of-pocket expenses or had paid the bill in full, it does not specifically state that these were the determining factors in the court’s dismissal. See id., slip op. at 5. Instead, the court states that “[t]he mere conclusion that [the plaintiff] had damages of $13.00 does not show how that sum relates in anyway to Allstate’s alleged actions.” Id., slip op. at 6. Thus, had the plaintiff more clearly stated the connection between the refusal to pay and his alleged damages, the claim might not have been dismissed for failure to state a claim.

While Michigan courts have dismissed actions by insureds for lack of injury, Michigan law provides that defend and indemnify provisions must protect the insured from a variety of noneconomic injuries. The Michigan Commissioner of Insurance has issued a directive requiring all auto insurers to “act at all times to assure that the insured or claimant is not exposed to harassment, dunning, disparagement of credit, or lawsuit as a result of a dispute between the health care provider and the insurer.” McGill v. Automobile Ass’n of Michigan, 207 Mich.App. 402, 526 N.W.2d 12, 14 (1994) (emphasis added). Thus, Michigan law already provides protection from the type of injuries noted by the Florida courts in Kaklamanos, Burgess, and Jones.

It appears that Texas is the only jurisdiction where a court has clearly held that an insured lacks standing to bring a breach of contract action against the insurer under the circumstances presented here. See Gloria v. Allstate County Mut. Ins. Co., No. SA-99-CA-676-PM (W.D. Tex. Sept. 29, 2000) (finding that alleged injuries are too speculative to be the basis of an injury in fact for purposes of federal standing requirement); Noah v. Government Employees Ins. Co., No. SA-00-CA-018 (W.D.Tex. Apr. 9, 2001) (same). However, those cases involved federal claims relating to insurance policies. The federal court determined that the plaintiffs could not meet the federal standing requirements for their federal claims and thus dismissed the actions. In one of the cases, the district court specifically dismissed the state claims without prejudice to the plaintiff to refile them in state court. See Gloria, slip op. at 26.

As this Court explained in Department of Revenue v. Kuhnlein, 646 So.2d 717, 720 (Fla.1994), the doctrine of standing does not exist in Florida “in the rigid sense employed in the federal system.” In Kuhnlein, the State argued that various plaintiffs lacked standing to challenge the constitutionality of an automobile impact fee because the plaintiffs either had not paid the fee or had not requested a refund of any fee paid. This Court explained that “[ujnlike the federal courts, Florida’s circuit courts are tribunals of plenary jurisdiction” and “have authority over any matter not expressly denied them by the constitution or applicable statutes.” Id. Consequently, we concluded that there was no “requirement that the plaintiff must pay the fee or request a refund” in order to have standing under Florida law. Id. Thus, the Texas federal standing cases cited by Allstate are not applicable to the instant cases.

Finally, Allstate argues that the First District has improperly interpreted the insurance policy as an indemnification against liability and that it is actually an indemnification against loss. Further, Allstate contends that even if the policy is interpreted as indemnifying against loss, Kaklamanos cannot meet the injury requirement for standing in light of the defend and indemnify provision contained in the insurance policy. Kaklamanos and Ca-ravakis contend that it would violate both Florida’s no-fault law and public policy to interpret the indemnify and defend provision in the manner Allstate urges.

The contract provision at issue in both cases provides:

Unreasonable or Unnecessary Medical Expenses
If an insured person incurs medical expenses which we deem to be unreasonable or unnecessary, we may refuse to pay for those medical expenses and contest them.
If the insured person is sued by a medical services provider because we refuse to pay medical expenses which we deem to be unreasonable or unnecessary, we will pay resulting defense costs and any resulting judgment against the insured person. We will choose the counsel. The insured person must cooperate with us in the defense of any claim or lawsuit. If we ask an insured person to attend hearings or trials, we will pay up to $50.00 per day for loss of wages or salary. We will also pay other reasonable expenses incurred at our request.

The lower courts interpreted this provision as limiting the insured’s right to bring a cause of action against the insurer. The First District found no such limitation in the provision and concluded that Allstate’s argument “blurs important distinctions between contracts of indemnity requiring reimbursement of moneys actually paid and liability contracts like the Allstate policy at issue here.” Kaklamanos, 796 So.2d at 561. The First District reasoned that Kaklamanos’s right of action under the contract arose with Kaklamanos’s accrual of liability for medical treatment and Allstate’s failure to discharge the debt thirty days after notice. See id. In Burgess, the Second District agreed that Allstate’s automobile insurance contract is a contract of indemnity against liability and thus accrual of liability and the failure to discharge it creates a cause of action for the insured under the contract. See Burgess, 823 So.2d at 132.

The policy provision at issue in the instant cases provides that Allstate may refuse to pay medical expenses that it deems to be unreasonable or unnecessary and contest those expenses. It further provides that if the insured is sued by the medical provider for those expenses, Allstate will pay the insured’s defense costs and any resulting judgment against the insured. Thus, Allstate agrees to indemnify and defend the insured under these circumstances. We agree with the district courts in Kaklamanos and Burgess that the policy should be interpreted as a contract of indemnity against liability, not as an indemnity against loss.

Indeed, the plain language of the policy provision does not restrict the insured’s right to sue if PIP benefits are not paid, nor does the provision contain a requirement of payment by the insured. See Classic Concepts, Inc. v. Poland, 570 So.2d 311, 312 (Fla. 4th DCA 1990) (concluding that indemnification provision in an insurance contract covering the transportation of merchandise was an indemnity against loss based on language of provision indemnifying “only to the amount which [insured] are obligated to pay and do pay on such merchandise by reason of losses caused”). As interpreted by the county and circuit courts in the instant cases, this provision means that an insured has suffered no injury if he or she has not already paid a claim that the insurer denied or has not been sued by the medical provider for the unpaid services and thus has no standing to bring a claim against the insurer. The lower courts in Kaklamanos went even further, ruling that no damages were possible in the future based on the defend and indemnify provision in the policy. See Kaklamanos, 796 So.2d at 557.

Moreover, even if the county and circuit courts’ interpretation was supported by the plain language of the policy provision, such a provision would be inconsistent with the purposes of the PIP statute and would have to be construed and applied to be in full compliance with the code. See § 627.418(1), Fla. Stat. (2001) (“Any insurance policy, rider, or endorsement otherwise valid which contains any condition or provision not in compliance with the requirements of this code shall not be thereby rendered invalid, ... but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy, rider, or endorsement been in full compliance with this code.”); see also State Farm Mut. Auto. Ins. Co. v. Swearingen, 590 So.2d 506, 507 (Fla. 4th DCA 1991) (finding that the policy’s three-year limitation on med pay coverage was invalid because in conflict with the statute). Cf. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80, 83 (Fla.2000) (holding that provisions in uninsured motorist policies which provide less coverage than required by the statute are void as contrary to public policy).

Under the interpretation of the defend and indemnify provision advocated by Allstate, an insurer could avoid payment of PIP benefits for medical expenses in many instances by simply contesting the expenses. Under Allstate’s interpretation of the provision, the insured would lack standing to question the insurer’s determination that the medical expense was unreasonable and unnecessary unless the insured paid the medical bill or was sued by the medical provider. However, it may be economically prohibitive for many insureds to pay their medical bills out of their own pockets. Further, this is inconsistent with the intent of no-fault insurance, namely to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So.2d at 683-84. Additionally, medical providers may be loath to pursue patients for expenses which the insurance company refuses to pay, and such actions against a patient could harm the doctor-patient relationship. Thus, what should be a determination for the trier of fact — whether a medical expense is reasonable and necessary — would be determined as a matter of law through the insurance company’s motion for summary judgment based on the insured’s lack of standing. The insurance company could effectively prevail on its contest of a claim, while the person who has paid for the contract of insurance would not be able to even challenge the contested claim. Under this interpretation, there would be no incentive for the insurer to promptly pay claims as there would be no risk of a legal action by the insured. The insurer’s risk of legal action would only arise after the medical provider has sued the insured or the insured has assigned benefits to the medical provider. Cf. Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266, 1268 (Fla. 3d DCA 1995) (finding insurer only paid bills that unquestionably qualified for benefits under the policy after the insured initiated underlying suit over three months after the insurer had been properly notified of the claims).

CONCLUSION

For all the reasons discussed above, we agree with the First District Court of Appeal that certiorari review was proper under the circumstances of this case and that “[a]n insured who incurs reasonable and necessary medical expenses on account of an automobile accident sustains losses and incurs liability for PIP and medpay benefits, whether or not the medical bills have been paid.” Kaklamanos, 796 So.2d at 560. Further, the recipient of such bills is entitled to sue the defaulting insurer for PIP and medpay benefits when the benefits have not been “paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” § 627.736(4)(b), Fla. Stat. (2001). Accordingly, we approve the decision of the First District Court of Appeal in Kaklamanos and quash the decision of the Second District Court of Appeal in Caravakis, to the extent that it is inconsistent with this opinion.

It is so ordered.

ANSTEAD, C.J., PARIENTE and LEWIS, JJ„ and SHAW, Senior Justice, concur.

WELLS, J., dissents with an opinion.

CANTERO, J., recused.

WELLS, J.,

dissenting.

I dissent because there is simply no way I can reconcile the approval of the First District’s certiorari jurisdiction in Kaklamanos v. Allstate Insurance Co., 796 So.2d 555 (Fla. 1st DCA 2001), with this Court’s majority decision quashing certiorari jurisdiction by the Third District in Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla.2000). In this case, the majority holds:

Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.

Majority op. at 890. In Ivey, this Court stated the opposite:

In this case, it is clear that the Third District merely disagreed with the circuit court’s interpretation of the applicable law, which, as explained in [Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995) ], is an improper basis for common law certiorari.

774 So.2d at 683.

I recognize that in its opinion, the First District did say, “We reach and decide the merits of the petition because the court’s purely legal error was ‘sufficiently egregious or fundamental.’ ” Kaklamanos, 796 So.2d at 557-58. However, neither the First District nor this Court’s decision has supplied any basis upon which it can be reasonably concluded that these cases are anything more than garden-variety statutory and contract interpretations. Clearly, the mere recitation of the words “egregious or fundamental” should be insufficient; otherwise, certiorari review becomes standardless and subject to the particular views of different appellate court panels as to which decisions meet an amorphous criterion.

I conclude that the Second District, in Caravakis v. Allstate Indemnity Co., 806 So.2d 548 (Fla. 2d DCA 2001), did follow this Court’s precedent and is indisputably logical in stating, “When established law provides no controlling precedent, the circuit court cannot be said to have violated a clearly established principle of law.” Id. at 549-50. That there is no established law on the controlling issue in this case is acknowledged as a fact by this Court’s majority opinion. Majority op. at 892.

This Court should abide by its own admonition stated in Ivey:

If a problem is occurring in our current appellate system because a large number of circuit court decisions are unreported, then perhaps that issue should be addressed and resolved. The solution is not, however, a second level of appellate review when a district court simply disagrees with the decision of a circuit court sitting in its appellate capacity. The concept of certiorari review should have a recognized uniformity of application. Thus, we conclude that the district court below inappropriately exercised certiorari review.

774 So.2d at 683. Certiorari review by a district court plainly should not be on the basis of whether the district court agrees or disagrees with the circuit court’s decision. Likewise, neither can this Court’s analysis of certiorari review be on that basis.

      . In Kaklamanos, Keely Kaklamanos signed an authorization for Nu-Best Diagnostic Labs to recover personal injury protection/medical payment benefits on her behalf. The authorization "irrevocably” appointed Nu-Best as her special attorney-in-fact and agent and gave Nu-Best full power to bring an action against the insurance company to recover any unpaid PIP or medpay benefits and "to do any and all things in the name of the undersigned patient to recover any and all unpaid personal injury protection/medical payment benefits as a result of fees claimed by NU-BEST Diagnostic Labs.” Based on this authority, Dr. Daniel Bontrager of Nu-Best retained an attorney to represent Nu-Best and patient Kaklamanos with a claim against Allstate for unpaid medical bills. The attorney filed a PIP action against Allstate for failure to pay Kaklamanos's medical bill for treatment by Nu-Best. The attorney informed Kaklamanos of this action by letter and subsequently informed Kaklamanos by letter of the progress of the case. Thus, even though Keely Kaklamanos is the named party to this action, she was not personally involved and was represented by her attorney in fact.

      . The Second District recognized in Caravakis that it "might agree that the PIP statute is violated by a policy provision that requires an injured person to be sued by his medical provider before he can contest the reasonableness and necessity of medical expenses.” 806 So.2d at 550. In fact, the court subsequently made such a ruling on the merits in Burgess v. Allstate Indemnity Co., 823 So.2d 130 (Fla. 2d DCA 2002).

      . In fact, where an insured does assign PIP benefits to the medical provider, it has been ruled an unqualified assignment which removes the insured’s standing to bring a direct action against the insurer, even though the insured remains liable for any medical bills not paid by the insurer. See, e.g., Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001); Livingston v. State Farm Mut. Auto. Ins. Co., 774 So.2d 716, 717 (Fla. 2d DCA 2000) ("As a general rule, if an insured has assigned her right to receive personal injury protection (PIP) benefits to a health care provider, the insured may not file a lawsuit to collect the assigned benefits.”).