source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Warren R. TRAZENFELD, Respondent.
    No. SC00-2571.
    Supreme Court of Florida.
    Nov. 14, 2002.

      John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Randolph Max Brombacher, Bar Counsel, Miami, FL, for Complainant.
    Robert M. Klein and Marlene S. Reiss of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, Miami, FL; and Patricia S. Etkin of Weiss and Etkin, Plantation, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report and order dismissing the Florida Bar’s complaint against Warren R. Trazenfeld. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we disapprove the referee’s order and remand this case to the referee for further proceedings consistent with this opinion.

FACTS

On December 13, 2000, the Bar filed a complaint against Trazenfeld alleging that he violated Rules Regulating the Florida Bar 4 — 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation) and 4-8.4(d) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice) in the context of Trazen-feld’s representation of Monika Lent. Trazenfeld responded by filing a “motion for summary resolution” arguing that the Bar, having issued a no probable cause finding in a 1998 case addressing the Lent litigation, is now precluded by the res judi-cata doctrine from pursuing further disciplinary actions against him in a case involving the same underlying facts. The Bar filed a response, arguing that the res judicata doctrine does not apply to griev-anee committee proceedings because the grievance committee is without authority to adjudicate Trazenfeld guilty of rule violations ' or issue a final judgment. This Court appointed a referee who held a hearing on Trazenfeld’s motion. The referee entered an order wherein she made the following'findings of fact.

In 1998, under Florida Bar number 98-71,747(llf), a Florida Bar grievance committee conducted an investigation into Trazenfeld’s conduct during the Lent litigation. That investigation addressed allegations that Trazenfeld violated Rules Regulating the Florida Bar 4-3.4 (fairness to opposing party and counsel), 4-4.4 (respect for rights of third persons), and 4-8.4 (a lawyer shall not engage in conduct that is prejudicial to the administration of justice). On or about July 9, 1999, the grievance committee issued a “notice of no probable cause and letter of advice” to Trazenfeld advising him that it had found no probable cause in the case against him and that the complaint was dismissed.

Based on the foregoing facts and consideration of the parties’ oral arguments and briefs, the referee entered an order granting Trazenfeld’s motion for summary resolution and dismissing the Bar’s complaint. In reaching her conclusion, the referee noted that rule 3-7.4(j)(3) states that “a finding of no probable cause by a grievance committee shall not preclude the reopening of the case and further proceedings therein.” See R. Regulating Fla. Bar 3-7.4(j)(3). However, the referee found that there is no case law specifically addressing the issue of whether the res judi-cata doctrine applies in Bar grievance committee proceedings. The referee relied on this Court’s decision in Florida Bar v. Gentry, 447 So.2d 1342 (Fla.1984), to reach her conclusion that Bar grievance committee findings are in fact subject to the res judicata doctrine when the subsequent proceedings are based on the same underlying facts. The referee also found that there was nothing in this case which indicated that the Bar did not have a full and fair opportunity to both investigate and litigate all possible disciplinary matters involved in the Lent litigation in 1998. Finally, the Bar did not allege any facts before the 2000 grievance committee which were not known or which could not have been known by the 1998 committee. Thus, the referee found that the res judicata doctrine required dismissal of the entire action and granted Trazenfeld’s motion for summary resolution and dismissed the Bar’s complaint.

The Bar has petitioned for review of the referee’s order granting Trazenfeld’s motion.

ANALYSIS

A referee’s conclusions of law are not given the same presumption of correctness afforded to a referee’s findings of fact. See Florida Bar re Inglis, 471 So.2d 38, 41 (Fla.1985). In the instant case, the Bar argues the referee erred in finding that the res judicata doctrine applies to grievance committee proceedings and in dismissing the Bar’s complaint. The Bar claims the res judicata doctrine is not applicable to Bar grievance committee proceedings because grievance committees do not make final determinations of guilt and rule 3-7.4(j)(3) permits the Bar’s filing of the instant complaint against Trazenfeld. On the other hand, Trazenfeld argues the referee’s order should be approved because the Bar should have sought review of the 1998 grievance committee finding of no probable cause under rule 3-7.5. Traz-enfeld argues that the Bar should not be allowed to disregard its own rules and then rely on inaction to bring further proceedings based on the same set of facts.

Rule 3-7.4 discusses grievance committees, which can be described as investigatory panels that conduct proceedings, which may be informal, wherein the panels make recommendations on the alleged misconduct in the Bar’s complaints. See R. Regulating Fla. Bar 3-7.4. One of the recommendations the grievance committee can make is a finding of no probable cause. Rule Regulating Florida Bar 3-7.4(j) states in pertinent part:

(j) Finding of No Probable Cause.
(1) Authority of Grievance Committee. A grievance committee may terminate an investigation by finding that no probable cause exists to believe that the respondent has violated these rules. The committee may issue a letter of advice to the respondent in connection with the finding of no probable cause.
(3) Effect of No Probable Cause Finding. A finding of no probable cause by a grievance committee shall not preclude the reopening of another case and further proceedings therein.

Although we may agree with the referee’s conclusion that there is no determinative case which expressly and specifically addresses the issue of whether the res judicata doctrine applies in Bar grievance committee proceedings, this Court has previously commented sufficiently on the nature of grievance committee proceedings to provide insight for the present issue. In Florida Bar v. Swickle, 589 So.2d 901, 904 (Fla.1991), the respondent alleged that numerous due process errors had occurred during the grievance committee proceedings. In rejecting the respondent’s due process claims, this Court stated that grievance committee proceedings are principally investigatory and are comparable to proceedings before a grand jury because the proceedings are nonadversarial. See id.

Likewise, in Florida Bar v. Wagner, 175 So.2d 33, 34 (Fla.1965), this Court held that the respondent was not entitled to a bill of particulars at the grievance committee stage because the only function of a grievance committee was to determine whether there was sufficient evidence to recommend to the Board of Governors of the Bar a finding that probable cause for discipline existed. This Court further noted that a grievance committee does not render the determining judgment that probable cause exists; it merely recommends its findings to the Board. See id. at 34-35.

In the instant case, the referee relied on this Court’s decision in Florida Bar v. Gentry, 447 So.2d 1342 (Fla.1984), to support the conclusion that the res judicata doctrine is applicable to grievance committee proceedings. We conclude that the referee’s reliance on Gentry was misplaced. In Gentry, the respondent argued that the res judicata doctrine barred a finding of guilt on count one charged in the complaint because the transaction in question had already been the subject of a previous disciplinary proceeding in which the respondent was found guilty of misconduct and given a private reprimand. See Gentry, 447 So.2d at 1343. This Court did a brief res judicata analysis and found that the doctrine was not applicable because the two proceedings in question did not possess the requisite identity of facts. See id.

Gentry is clearly distinguishable from the instant case because the issue of the res judicata doctrine being applicable to grievance committee proceedings was never even addressed in that case. Moreover, the facts of Gentry are distinguishable because the previous full disciplinary proceeding against Gentry had resulted in a finding of guilt of misconduct and the imposition of a private reprimand. Therefore, a final determination on the merits was made within the context of a full adversarial proceeding. In the instant case, the 1998 proceedings against Trazenfeld only reached the stage of the grievance committee which issued a no probable cause finding. The Board of Governors did not take any action on these earlier proceedings and there certainly was never any type of adversarial proceeding.

Additionally, despite Trazenfeld’s argument that the Bar failed to seek review of the 1998 grievance committee’s finding of no probable cause, nothing in the rules requires or even suggests that the Bar must seek review of a grievance committee finding. Rule 3-7.5 details the procedures before the Board of Governors. Specifically, rule 3-7.5(b) states a designated reviewer may review the actions of the grievance committee. See R. Regulating Fla. Bar 3-7.5(b). The word “may” when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word “shall.” See Harper v. State, 217 So.2d 591, 592 (Fla. 4th DCA 1968). We reject Trazenfeld’s argument because the language of rule 3-7.5(b) is permissive rather than mandatory.

Finally, case law from other jurisdictions supports the Bar’s argument that the doctrine of res judicata is not applicable to Bar grievance committee proceedings. In State v. Sewell, 487 S.W.2d 716, 717 (Tex.1972), the members of a local grievance committee sought mandamus to command a district judge to vacate an order that temporarily enjoined the grievance committee from concluding a hearing on matters before the committee which had been previously considered by the committee at two earlier hearings. The Supreme Court of Texas vacated the circuit court’s injunction and held that the committee’s prior decisions did not rise to the level of a final determination on the merits of the complaints before them. See id. at 718. Therefore, the matters before the grievance committee were not barred by the doctrine of res judicata. See id.; see also State v. Russell, 227 Kan. 897, 610 P.2d 1122, 1130 (1980) (holding that a review committee of the Kansas Board for Discipline of Attorneys had the authority to dismiss a complaint against an attorney with or without prejudice and when dismissal was ordered without specifying the nature of the dismissal the dismissal was without prejudice to the filing of later proceedings on the same matter); Mississippi State Bar v. Young, 509 So.2d 210, 214 (Miss.1987) (proceedings under complaint were not precluded by dismissal of former complaint where there was no final judgment entered on merits of former complaint); State ex rel. Nebraska State Bar Ass’n v. Kirshen, 232 Neb. 445, 441 N.W.2d 161, 177 (1989) (holding res judica-ta doctrine did not apply to bar proceedings where the committee’s dismissal of the first complaint occurred at a preliminary inquiry stage).

CONCLUSION

Based on the foregoing reasons, we conclude that the referee erred in concluding that res judicata applied to bar these proceedings. Accordingly, we disapprove the referee’s order granting Trazenfeld’s motion for summary resolution and dismissing the Bar’s complaint and remand this case to the referee for further proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, LEWIS, and QUINCE, JJ., and HARDING, Senior Justice, concur.

      . The Third District Court of Appeal's decision in Lent v. Baur, Miller & Webner, P.A., 710 So.2d 156 (Fla. 3d DCA 1998), details the facts of Trazenfeld's representation of Lent in 1996 during a legal malpractice action against her former attorney. In that case, the trial court entered an order instructing Lent to execute a consent to allow a potential witness to be deposed. Trazenfeld, without notifying opposing counsel or the trial court, wrote a letter to the witness stating that Lent's consent was not voluntary, and if the witness testified, Lent would pursue all relief available to her against the witness. After becoming aware of Trazenfeld’s letter, opposing counsel filed a motion for sanctions seeking dismissal of Lent's complaint with prejudice. After a hearing, at which Lent testified that she knew of and consented to Trazen-feld's actions, the trial court entered an order dismissing Lent’s complaint with prejudice. Lent appealed the order arguing that the trial court abused its discretion. The Third District Court of Appeal affirmed the trial court's dismissal order, finding that Lent and Trazen-feld willfully disregarded the trial court’s order instructing Lent to execute a consent and also acted in bad faith in attempting to assure noncompliance with the court’s order by intimidating a key defense witness. See id. at 158.

      . The referee incorporated the order granting summary resolution into the referee's report filed in this case.

      . Rule 3-7.5(a)(l) states the disciplinary review committee shall review those grievance committee matters referred to it by a designated reviewer. See R. Regulating Fla. Bar 3-7.5(a)(1).


author: SHAW, J. PARIENTE, J.,

text:
    Clyde Timothy BUNKLEY, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-297.
    Supreme Court of Florida.
    Nov. 21, 2002.

      R. John Cole, II, Sarasota, FL, for Petitioner.
    Richard E. Doran, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   SHAW, J.

We have for review Bunkley v. State, 768 So.2d 510 (Fla. 2d DCA 2000), wherein the district court certified the following question:

Should the decision in L.B. v. State, 700 So.2d 370 (Fla.1997), that a folding pocketknife with a blade of four inches or less falls within the statutory exception to the definition of a “weapon” found in § 790.001(13), be applied retroactively?

Bunkley, 768 So.2d at 511. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer in the negative, as explained herein.

I. FACTS

Bunkley burglarized an unoccupied Western Sizzlin’ Restaurant on April 23, 1987. He was arrested at the scene and later charged with and convicted of armed burglary, possession of burglary tools, and resisting arrest without violence. In light of his fifteen prior convictions, he was sentenced to life imprisonment on the armed burglary count, five years’ imprisonment on the possession of burglary tools count, and six months’ imprisonment on the resisting arrest count. His convictions and sentences were affirmed.

Bunkley subsequently sought postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850 and the relevant facts are set forth in the district court opinion below:

Bunkley was convicted of armed burglary after a jury trial on April 23, 1987. The arresting officer testified as to the following facts: Bunkley broke into a closed, unoccupied Western Sizzlin’ Restaurant in the early morning hours, and was apprehended after leaving the structure with a common pocketknife in his pocket. At the time of Bunkley’s arrest, the pocketknife, with a blade of 2$ to 3 inches in length, was folded and in his pocket. There is no evidence indicating Bunkley ever used the pocketknife during the burglary, nor that he threatened anyone with the pocketknife at any time.
In his rule 3.850 motion, Bunkley contends the trial court erroneously allowed the jury to determine whether the pocketknife found in his possession could be considered a deadly weapon, rather than concluding it was not as a matter of law. Bunkley concedes that his motion was filed more than two years after his convictions on April 23, 1987, became final. He contends, however, that the arguments raised in his motion were not supported by case law until the supreme court decided L.B. v. State, 700 So.2d 370 (Fla.1997), and that he filed his motion within two years from the date of that decision.
In L.B., the Florida Supreme Court reversed this court’s decision finding section 790.001(13), Florida Statutes (1995), unconstitutionally vague. At issue was the exclusion of a “common pocketknife” from the definition of “weapon” in section 790.001(13). The Florida Supreme Court found that the statutory term was not so vague as to fail to put people of ordinary intelligence on notice of what constitutes forbidden conduct under the statute. To define the term, the court relied upon an Attorney General’s opinion that a common pocketknife was one with a blade of four inches or less.

Bunkley, 768 So.2d at 510 (citations omitted). The district court declined to apply L.B. retroactively, affirmed the denial of rule 3.850 relief, and certified the above question.

The issue presented in this case, 1.e., whether a decision of this Court must be applied retroactively, is a pure question of law, subject to de novo review.

II. L.B. v. STATE

The petitioner in L.B. v. State, 700 So.2d 370 (Fla.1997), was charged with and convicted of possessing a “weapon” on school grounds based on her possession of a folding knife with a 3%-inch blade:

At trial, the court considered whether petitioner’s knife fit within the “common pocketknife” exception to the definition of “weapon” contained in section 790.001(13), Florida Statutes (1995). Section 790.001(13) provides:
“Weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.
The trial court found that petitioner’s knife was too large to be considered a “common pocketknife,” and was therefore a “weapon” within the meaning of sections 790.001(13) and 790.115(2). Accordingly, the trial court found appellant guilty of the violation.
On appeal, the Second District vacated the trial court’s order and remanded the case for a new trial. The district court held that section 790.001(13) is unconstitutionally vague insofar as it excludes “common pocketknives” from the definition of “weapon.”

L.B., 700 So.2d at 371 (footnote and citations omitted).

This Court disagreed that the phrase “common pocketknife” was unconstitutionally vague:

The legislature’s failure to define the term “common pocketknife” in section 790.001(13) does not render that term unconstitutionally vague. Moreover, a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term.
[The Court then set forth dictionary definitions of the terms “common” and “pocketknife.”] From these definitions, we can infer that the legislature’s intended definition of “common pocketknife” was: “A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” We believe that in the vast majority of cases, it will be evident to citizens and fact-finders whether one’s pocketknife is a “common” pocketknife under any intended definition of that term.

L.B., 700 So.2d at 372 (citations omitted).

The Court concluded that the petitioner’s knife plainly fell within the meaning of “common pocketknife” but added the following caveat:

We note that neither the Attorney General nor this Court maintains that four inches is a bright line cutoff for determining whether a particular knife is a “common pocketknife.” We merely hold that appellant’s knife fits within the exception to the definition of weapon found in section 790.001(13).

L.B., 700 So.2d at 373 n. 4.

III. THE APPLICABLE STATUTES

The burglary statute, which differentiates between simple and armed burglary, provides in relevant part:

810.02 Burglary.—
(1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment ... if, in the course of committing the offense, the offender:
(b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon.
(3) ... Otherwise, burglary is a felony of the third degree, punishable [by a term of imprisonment not exceeding five years].

§ 810.02, Fla. Stat. (1985) (emphasis added).

The phrase “dangerous weapon” has appeared in the above statute since it was enacted in 1895 and is not defined therein. To determine the meaning of that phrase, courts traditionally have turned to chapter 790, Florida Statutes, entitled “Weapons and Firearms.” Section 790.001 defines the term “weapon” and expressly excepts a “common pocketknife”:

(13) “Weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

§ 790.001(13), Fla. Stat. (1985) (emphasis added). This definition was based on the description of “weapon” found in the precursor statute, section 790.01, which was enacted in 1901 and also excepted a “common pocketknife.”

IV. CHANGES IN THE LAW

Intent is a polestar that guides a court’s inquiry into whether a change in the law should be given prospective or retroactive application. As a rule, a change in the statutory law is presumed to operate prospectively absent a clear showing of contrary intent. A change in the decisional law in a nonfinal case, on the other hand, is presumed to operate in all other nonfinal cases. A change in either the statutory or decisional law may operate retroactively when retroactive application is expressly provided, but regardless of intent, the issue of retroactivity is ultimately controlled by overarching constitutional principles.

The Court in Witt v. State, 387 So.2d 922 (Fla.1980), was confronted with the following question: must a change in the law that is announced in a nonfinal case be applied in final cases? The Court held that only “jurisprudential upheavals” will be applied in final cases, and that “evolutionary refinements” in the law will not be applied in final cases. The Court explained:

We emphasize at this point that only major constitutional changes of law will be cognizable ... under Rule 3.850. Although specific determinations regarding the significance of various legal developments must be made on a case-by-case basis, history shows that most major constitutional changes are likely to fall within two broad categories. The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Sto vall and Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)]. Gideon v. Wainwright, of course, is the prime example of a law change included within this category.
In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgment of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Witt, 387 So.2d at 929-30 (citations and footnotes omitted).

In brief, changes in the decisional law are divided into two subgroups for retroactivity purposes. A “jurisprudential upheaval” is a major constitutional change of law, announced by either this Court or the United States Supreme Court, that addresses a basic unfairness in the system. The unfairness must be so fundamental that it undermines confidence in the validity of final cases and outweighs the doctrine of finality. An “evolutionary refinement,” on the other hand, is a conventional change that affords new or different guidelines for Florida courts in exercising their authority in applying the law. Jurisprudential upheavals are applied retroactively; evolutionary refinements are not applied retroactively. We add that, as opposed to “changes” in the law, an entirely separate body of precedent, i.e., “clarifications” in the law, has no application under Florida law in the context of retroactivity.

V. THE PRESENT CASE

In analyzing the retroactivity of L.B. under Witt, we are called upon to determine whether L.B. was a “jurisprudential upheaval” or an “evolutionary refinement” in the law. As noted above, a jurisprudential upheaval is a “major constitutional change of law.” Examples include Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). L.B. clearly was not a decision of that order, for L.B. was a routine statutory construction case wherein this Court construed the phrase “common pocketknife.”

Rather, L.B. was an “evolutionary refinement” in the law, i.e., it was a conventional change that “affords new or different guidelines” for the courts in applying the law. To determine whether a decision refines a statute, we first look to the decision itself to discern its intent. If the decision is silent or ambiguous on this point, we then look to the statute to discern its intent. Where the Legislature cedes a measure of discretion to the courts either directly or by employing language that commonly requires judicial construction, the Legislature intends for the courts to effectuate the purpose of the statute by “refining” the decisional law in the face of “evolving” circumstances.

The Legislature, at the turn of the century, ceded discretion to the courts by employing the phrases “dangerous weapon” and “common pocketknife” in the burglary and weapon statutes, and these phrases clearly required judicial construction in order to provide a meaningful basis for imposing sanctions. This Court’s decision in L.B., which was issued in 1997, was the culmination of a century-long evolutionary process. Although some courts during that period may have interpreted “common pocketknife” contrary to the holding in L.B., each court nevertheless sought to comply with legislative intent and to rule in harmony with the law as it was interpreted at that point in time. A key consideration is that none of the courts attempted to impose criminal sanctions without statutory authority — i.e., none ruled in contravention of legislative intent. Thus, none of the convictions imposed pursuant to section 790.001(13) violated the Due Process Clause in this regard.

VI. CONCLUSION

This Court’s decision in L.B. is not a jurisprudential upheaval under Witt, for L.B. was not a “major constitutional change of law.” Rather, L.B. was a routine statutory construction case wherein this Court construed and refined the phrase “common pocketknife” in the face of evolving circumstances in the field. The decision thus “affords new or different” guidelines for Florida courts to use in applying the statute and is an evolutionary refinement in the law.

We answer the certified question in the negative and hold that L.B. cannot be given retroactive application and applied to final cases. We approve Bunkley v. State, 768 So.2d 510 (Fla. 2d DCA 2000), as explained herein.

It is so ordered.

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

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

PARIENTE, J.,

dissenting.

I dissent because in my opinion under the recent United States Supreme Court decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), this Court’s decision in L.B. v. State, 700 So.2d 370 (Fla.1997), should be applied to grant Bunkley collateral relief. If Fiore is deemed inapplicable, then in my view Bunkley is still entitled to relief based on the principles of retroactivity articulated in Witt v. State, 387 So.2d 922 (Fla.1980).

In this case, Bunkley was convicted of armed burglary in 1987 for breaking into an unoccupied restaurant, and received a life sentence. See Bunkley v. State, 768 So.2d 510, 510 (Fla. 2d DCA 2000). The “weapon” that enhanced the burglary from simple burglary to armed burglary was a common pocketknife with a blade of two- and-a-half to three inches that was folded in his pocket at the time of the burglary. See id. There was “no evidence indicating that Bunkley ever used the pocketknife during the burglary, nor that he threatened anyone with the pocketknife at any time.” Id. At all pertinent times, section 790.001(13), Florida Statutes (1985), expressly excepted a “common pocketknife” from the definition of a “weapon.” Subsequent to Bunkley’s conviction, this Court in L.B. held for the first time that the proper definition of a “common pocketknife” included any pocketknife with a blade four inches in length or less. See 700 So.2d at 373. Thus, any common pocketknife with a blade of four inches or less was not a “weapon” as a matter of law under section 790.001(13), the weapons statute. See id.

In my view, the principles of due process enunciated in Fiore require that Bunkley receive the benefit of the Court’s clarification of the law in L.B. Fiore holds that constitutional principles of due process are violated when a state convicts and incarcerates an individual for conduct that the state’s “criminal statute, as properly interpreted, does not prohibit.” 531 U.S. at 228, 121 S.Ct. 712. At issue in Fiore was an opinion of the Pennsylvania Supreme Court that for the first time established that a criminal statute, as properly interpreted, did not prohibit the defendant’s conduct at the time of the conviction. See id. In those circumstances, the United States Supreme Court explained that the state supreme court had issued a clarification of the law that applied to that defendant, and retroactivity was not an issue. See id. The Court explained:

This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted....
The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the Federal Constitution’s demands.

Id. at 228-29, 121 S.Ct. 712 (emphasis supplied) (citations omitted).

This Court recently acknowledged Fiore’s applicability to Florida law in State v. Klayman, 835 So.2d 248 (Fla.2002). In Klayman, a majority of this Court stated that “a simple clarification in the law does not present an issue of retro-activity and thus does not lend itself to a Witt analysis.” Id. 835 So.2d at 252. Yet, in this case, instead of analyzing why L.B. was not a clarification in the law entitling Bunkley to relief, the majority concludes, without discussion, that Fiore is not applicable. See majority op. at 744-45, note 12. Rather than discussing Fiore, which does not involve a retroactivity analysis, the majority analyzes L.B. based only on the principles of Witt, concluding that L.B. was “the culmination of a century-long evolutionary process.” Majority op. at 745-46. However, the majority offers no precedent laying out the stages of this evolution.

In fact, L.B. was the first statement by this Court as to what constitutes a “common pocketknife.” In reaching this determination we relied on a 1951 Attorney General Opinion, not on a definition evolved through judicial precedent. See L.B., 700 So.2d at 373. Thus, I would find Fiore applicable to this case.

As in Fiore, this Court’s statement of the law in L.B. also correctly stated the law at the time Bunkley’s conviction became final. Further, like the Pennsylvania Supreme Court’s clarification of its law in Fiore, the armed burglary statute as “properly interpreted,” Fiore, 531 U.S. at 228, 121 S.Ct. 712, places Bunkley’s conduct outside the scope of that statute. In Fiore’s terms, this Court issued a “clarification” of the law of what constitutes a “common pocketknife” under section 790.001(13). Thus, as in Fiore, Bunkley’s “continued incarceration” on this charge violates due process because the essential element of possessing a “weapon” in order to be convicted of armed burglary does not exist in Bunkley’s case.

Because L.B. is a clarification of the law, application of the due process principles of Fiore renders a retroactivity analysis under Witt unnecessary. However, assuming, as the majority does, that our decision in L.B. was a change in the law and not a clarification, Bunkley is also entitled to relief pursuant to Witt.

Witt outlined three requirements that decisional law must meet in order to be applied retroactively. See 387 So.2d at 931. First, the decisional law must be issued by the Florida Supreme Court or the United States Supreme Court. See id. Second, the decisional law must be constitutional in nature. See id. Third, the change in law must constitute a major constitutional change of fundamental significance “where unfairness [is] so fundamental in either process or substance that the doctrine of finality [has] to be set aside.” Id. at 927. There are two categories of changes that are sufficient to constitute fundamental significance: (1) “changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties” and (2) “jurisprudential upheavals” that meet the three-part test from Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Witt, 387 So.2d at 929.

Our decision in L.B. undoubtedly meets the first two prongs of Witt. First, L.B. was decided by this Court. See 700 So.2d at 373. Second, our decision in L.B. answered the question of whether the statute providing that a “common pocketknife” is not a “weapon” was unconstitutionally vague. See id. In answering that question in the negative, this Court held in the context of Florida constitutional law that any knife with a blade of less than four inches was not a “weapon” within the meaning of the statute. See id. at 372-73. Indeed, the definition of “common pocketknife” we provided in L.B. was necessary to avoid a finding that the statute at issue was so vague as to unconstitutionally fail to give citizens proper notice as to what constituted criminal conduct. See id. at 371-73. Thus, our decision in L.B. was more than a “routine statutory construction case.” Majority op. at 745 (emphasis supplied). Rather, L.B. construed a statute within the framework of our state constitution in order to ensure that citizens had legal notice at the time of the commission of the offense and to avoid declaring the statute unconstitutional, as the Second District had done. Therefore, L.B. had strong due process implications, making it constitutional in nature. Cf. Callaway v. State, 642 So.2d 636, 640 (Fla. 2d DCA 1994) (decision is “constitutional in nature” if based primarily upon constitutional analysis), approved, 658 So.2d 983 (Fla.1995).

As to the third prong, I would hold that L.B. also meets the three-fold test articulated in Stovall and adopted by Witt. Under Stovall, consideration must be given to (i) the purpose to be served by the new rule, (ii) the extent of reliance on the old rule, and (iii) the effect that retroactive application of the rule will have on the administration of justice. See 388 U.S. at 297, 87 S.Ct. 1967. First, L.B. serves two significant purposes. Primarily, L.B. prevents persons from being convicted of a crime .for conduct never expressly prohibited by statute. L.B. also ensures that citizens are properly placed on notice as to what constitutes criminal conduct. Both of these purposes have strong due process implications. See State v. Stevens, 714 So.2d 347, 348 (Fla.1998) (extending retro-activity to a decision holding that a 25-year mandatory minimum term was inapplicable to attempted second- and third-degree murder of a law enforcement officer “from the beginning” of statutory provision authorizing enhanced sentence); see also Fiore, 531 U.S. at 228-29, 121 S.Ct. 712; Callaway, 642 So.2d at 640.

Second, Stovall requires that we consider the extent of reliance on the old rule. Although “common pocketknife” has been exempted from the definition of a “weapon” for many years, the extent of reliance is limited to very narrow circumstances. As this Court recognized in L.B., in “the vast majority of cases it will be evident whether one’s particular knife is a ‘common pocketknife.’ ” 700 So.2d at 373.

The third factor for consideration under Stovall addresses the impact that retroactive application of the new rule will have on the administration of justice. Bunkley filed his motion for postconviction relief within two years from the date that L.B. became final. See Bunkley, 768 So.2d at 510. The retroactive application of L.B., which would give affected inmates a two-year window to file for relief, would involve a straightforward legal issue and require, at most, a simple evidentiary hearing to determine the length of the blade of the pocketknife. Only those defendants who could establish that the weapon they possessed was a common pocketknife of four inches or less would be entitled to relief. As in Callaway, 658 So.2d at 988, the record will normally be clear, and a determination concerning the length of the pocketknife should be accomplished easily at an evidentiary hearing.

As an overall consideration, this Court has held that when determining retroactivity, the “fundamental consideration is the balancing of the need for decisional finality against the concern for fairness and uniformity in individual cases.” Id. at 986. In the ordinary case, decisional finality will trump other considerations, especially where the decision is one that applies “new or different standards for the admissibility of evidence” or pertains to issues of “procedural fairness.” Witt, 387 So.2d at 929. “In the limited number of decisions that are retroactively applied, we have determined that concerns for basic fairness and uniformity of treatment among similarly situated defendants outweigh any adverse impact that retroactive application of the rule might have on decisional finality.” Dixon v. State, 730 So.2d 265, 267 (Fla.1999)

In my view, this case is one of those limited number of decisions where retroactive application is required. As a result of L.B., we now know that Bunkley was convicted of the crime of “armed” burglary when the essential element of possessing a “weapon” was missing. Because of this conviction, he was eligible for and received a sentence of life imprisonment. With this Court’s clarification in L.B. of what constitutes a “common pocketknife,” the maximum sentence Bunkley could have received for simple burglary would have been five years. See § 810.02(3), Fla. Stat. (1985). Thus, Bunkley not only was convicted for conduct that the statute has never prohibited, but he is serving a substantially longer prison term.

The fair administration of justice would be seriously undermined if a criminal defendant, such as Bunkley, is required to serve a life sentence while a criminal defendant who engaged in the same conduct subsequent to L.B. is required to serve only five years. Cf. State v. Callaway, 658 So.2d at 987 (noting that “the administration of justice would be more detrimentally affected if criminal defendants who had the misfortune to be sentenced during the six year window between the amendment of section 775.084 and the decision in Hale [v. State, 630 So.2d 521 (Fla.1993)] are required to serve sentences two or more times as long as similarly situated defendants who happened to be sentenced after Hale"). Bunkley should thus be entitled to the benefit of this Court’s decision in L.B. because the failure to give retroactive application of our decision in L.B. results in Bunkley serving a substantially longer sentence than a similarly situated prisoner.

The majority cites State v. Woodley, 695 So.2d 297, 298 (Fla.1997) as support for declining to apply L.B. retroactively. See majority op. at 744. However, when we declined to find the decision in State v. Gray, 654 So.2d 552 (Fla.1995), retroactive in Woodley, we did so because we had receded from eleven years of our own precedent establishing attempted felony murder as a valid offense. See Woodley, 695 So.2d at 298; see also State v. Safford, 484 So.2d 1244 (Fla.1986) (declining to retroactively apply State v. Neil, 457 So.2d 481 (Fla.1984), which changed the long-standing rule in Florida that a party could never be required to explain the reasons for exercising peremptory challenges). In contrast, L.B. established as a matter of first impression in-this Court that a closed, common pocketknife with a blade of four inches or less does not meet the definition in section 790.001(13) of a “weapon.” That definition was crucial to an essential element of the aggravated offense of armed burglary, which requires possessing a weapon. Retroactivity under these circumstances would be consistent with Callaway and Stevens, which made first-time statutory interpretations by this Court based on constitutional grounds retroactive, and with Woodley, in which we declined to extend retroactivity to a decision receding from our own precedent.

Finally, I am concerned that the majority neither acknowledges nor discusses in the Witt analysis the fundamental purpose of due process and retroactive application; that is, ensuring fairness and uniformity of individual adjudications. See Witt, 387 So.2d at 925. It is difficult “ ‘to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.’ ” Id. These important principles of fundamental fairness are essential to any analysis regarding the retroactive application of decisions from this Court.

The bottom line is that our holding in L.B. clarified that Bunkley’s possession of a folded common pocketknife did not constitute criminal conduct and thus he could not have been and should not have been convicted of armed burglary. He is now serving a sentence of life imprisonment based on that conviction for armed burglary. Under both Fiore and Witt, due process principles of fundamental fairness require that Bunkley be entitled to pursue collateral relief.

ANSTEAD, C.J., concurs.

      . See Bunkley v. State, 539 So.2d 477 (Fla. 2d DCA 1989).

      . See 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 ch. 4405, § 1, at 167-68, Laws of Fla. (1895).

      . See ch. 69-306, § 1, at 1106, Laws of Fla.

      . See ch. 4928, § 1, at 57, Laws of Fla. (1901).

      . See, e.g., Bates v. State, 750 So.2d 6, 10 (Fla.1999).

      . See Smith v. State, 598 So.2d 1063 (Fla.1992).

      . See, e.g., Bates, 750 So.2d at 10.

      . The Court in subsequent cases was confronted with the following question: must a change in the law that is announced in a final case be applied in other final cases? The Court answered as explained therein. See, e.g., Ferguson v. State, 789 So.2d 306 (Fla. 2001) (applying retroactively Carter v. State, 706 So.2d 873 (Fla.1997), wherein the Court held that a judicial determination of competency is required in certain postconviction cases); Johnston v. Moore, 789 So.2d 262 (Fla.2001) (declining to apply retroactively Stephens v. State, 748 So.2d 1028 (Fla.1999), wherein the Court announced a revised standard of review for ineffectiveness claims); Mitchell v. Moore, 786 So.2d 521 (Fla.2001) (applying retroactively the decision in the same case, i.e., Mitchell, wherein the Court held that a photocopy requirement for post-conviction pleadings impermissibly burdened indigent defendants).

      . For examples of jurisprudential upheavals, see the following: James v. State, 615 So.2d 668 (Fla.1993) (addressing Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), wherein Florida's jury instruction on the "heinous, atrocious, or cruel” aggravating circumstance was held to be impermissibly vague under the Eighth Amendment); Jackson v. Dugger, 547 So.2d 1197 (Fla.1989) (addressing Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), wherein the use of victim impact evidence in a capital trial was held to be irrelevant and impermissibly inflammatory in violation of the Eighth Amendment; the United States Supreme Court later receded from Booth in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)); Thompson v. Dugger, 515 So.2d 173 (Fla.1987) (addressing Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), wherein Florida's jury instructions in capital cases were held to impermissibly limit the sentencer's consideration of nonstatutory mitigating circumstances in violation of the Eighth Amendment).

      . For examples of evolutionary refinements, see the following: State v. Woodley, 695 So.2d 297 (Fla.1997) (addressing State v. Gray, 654 So.2d 552 (Fla.1995), wherein the Court held that the legal basis for the crime of attempted felony murder was too cumbersome to be countenanced any longer by the courts); State v. Glenn, 558 So.2d 4 (Fla.1990) (addressing Carawan v. State, 515 So.2d 161 (Fla.1987), wherein the Court announced a revised procedure for determining whether multiple convictions can arise from a single criminal act under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); McCuiston v. State, 534 So.2d 1144 (Fla.1988) (addressing Whitehead v. State, 498 So.2d 863 (Fla.1986), wherein the Court held that habitual offender status is an invalid ground for departure from the sentencing guidelines).

      .The United States Supreme Court, in addressing a decision rendered under Pennsylvania law, pointed out that certain decisions are not subject to a retroactivity analysis:
      The Pennsylvania Supreme Court’s reply specifies that the interpretation of [the statute] set out in [Com. v.] Scarpone[, 535 Pa. 273, 634 A.2d 1109 (1993)] "merely clarified” the statute and was the law of Pennsylvania — as properly interpreted — at the time of Fiore’s conviction. Because Scar-pone was not new law, this case presents no issue of retroactivity.

        Fiore v. White, 531 U.S. 225, 228, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001). Fiore is inapplicable to the present case.

      . For example, the Legislature directly ceded to the courts the authority to formulate grounds for departing from the sentencing guidelines. See § 921.001(6), Fla. Stat. (2001) ("A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence.. . .").

      . Examples of such language include "careful and prudent,” "reasonable,” and "probable cause.” See, e.g., § 316.1925, Fla. Stat. (2001) ("Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner ....”) (emphasis added); § 856.015(2), Fla. Stat. (2001) ("No adult having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed ... by any minor ... and where the adult fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.”) (emphasis added); § 933.04, Fla. Stat. (2001) ("[N]o search warrant shall be issued except upon probable cause ....”) (emphasis added).

      . It should be noted that in reported opinions issued in the almost five years since L.B.,
        the Second District opinion in this case is the sole reported appellate decision discussing the retroactivity of L.B.

      . Subsequent to L.B., the Legislature amended section 790.115, Florida Statutes, to specifically prohibit any “knife'' from being exhibited on school grounds. See State v. A.M., 765 So.2d 927 (Fla. 2d DCA 2000). This legislation does not alter the definition of weapon in section 790.001(13) or the incorporation of that definition into the armed burglary provision under which Bunkley was convicted.


author: WELLS, J.

text:
    FLORIDA INDUSTRIAL POWER USERS GROUP, Appellant, v. Lila A. JABER, et al., Appellees.
    No. SC02-187.
    Supreme Court of Florida.
    Nov. 27, 2002.

      John W. McWhirter, Jr. of McWhirter, Reeves, McGlothlin, Davidson, Decker, Kaufman, Arnold & Steen, Tampa, FL; Vicki Gordon Kaufman and Timothy J. Perry of McWhirter, Reeves, McGlothlin, Davidson, Decker, Kaufman, Arnold & Steen, Tallahassee, FL; and Robert D. Vandiver, Associate General Counsel, Office of the Public Counsel, Tallahassee, FL, for Appellant.
    Harold McLean, General Counsel, and Christiana T. Moore, Associate General Counsel, Florida Public Service Commission, Tallahassee, FL; and Lee L. Willis and James D. Beasley of Ausley & McMul-len, Tallahassee, FL, for Appellee.
   WELLS, J.

We have on appeal a decision of the Florida Public Service Commission relating to rates or service of an electric utility. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const.

This case arises from an administrative hearing held before the Florida Public Service Commission (PSC) on November 20-21, 2001. The PSC held this hearing to comply with its continuing fuel and purchased power recovery clause and generating performance incentive factor proceedings. In its order below, the PSC approved new fuel and purchased power cost recovery factors for use during the 2002 calendar year for the state’s investor-owned electric utilities. In re Fuel and Purchased Power Cost Recovery Clause and Generating Performance Incentive Factor, Order No. PSC-01-2516-FOF-EI, 2001 WL 1677492 (Dec. 26, 2001). Florida Industrial Power Users Group (FIPUG) appeals the PSC’s decision with regard to one issue relating to the reasonableness of Tampa Electric Company’s (TECO) transactions with its unregulated wholesale affiliate Hardee Power Partners (HPP). The PSC concluded that the evidence presented at the hearing revealed that TECO’s transactions with HPP were reasonable.

The section of the PSC’s order that FIPUG appeals was addressed thoroughly by both parties in the administrative hearing below. FIPUG presented testimony that TECO’s transactions with its wholesale affiliate were substantially harming TECO’s retail customers. FIPUG asserted that, as a result of TECO’s activities, TECO’s retail customers were being forced to pay excessive fees as a result of these transactions and were effectively subsidizing TECO’s wholesale contracts. TECO in turn presented evidence that TECO’s cost-based purchases with HPP have been beneficial to TECO’s customers and that TECO has utilized its best efforts to take advantage of opportunities in the wholesale electric power market. TECO’s witnesses testified that TECO has acted prudently regarding these transactions and that FIPUG’s arguments were unsupported by evidence.

This Court’s review in this case is limited to whether the PSC’s action is supported by competent, substantial evidence. Panda-Kathleen L.P./Panda Energy Corp. v. Clark, 701 So.2d 322, 325-26 (Fla.1997). The record reveals that the PSC was presented with detailed, competing testimony upon which to base its decision. The PSC weighed the evidence presented on this issue. We find that the PSC’s determination of reasonableness is supported by competent, substantial evidence. We therefore affirm the PSC’s order.

It is so ordered.

ANSTEAD, C.J., and SHAW, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Erdon I. ABREU, Respondent.
    No. SC01-2019.
    Supreme Court of Florida.
    Nov. 27, 2002.
    Donald A. Wich, Jr., Chair, Standing Committee on Unlicensed Practice of Law, John F. Harkness, Jr., Executive Director and Lori Holcomb, Unlicensed Practice of Law Counsel, The Florida Bar, Tallahassee, FL; and Loretta Comiskey O’Keefe, Branch Counsel, Unlicensed Practice of Law Department, Tampa, FL, for Complainant.
    No Appearance, for Respondent.
   PER CURIAM.

The Florida Bar has filed a motion pursuant to Rule Regulating the Florida Bar 10-7.1(b)(4) requesting that this Court issue an order enjoining respondent Erdon I. Abreu from engaging in the unlicensed practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.

FACTS

On September 12, 2001, The Florida Bar filed a petition against the unlicensed practice of law (UPL) alleging the following:

Erdon I. Abreu was not a member of the Florida Bar at all times material to the instant petition.

Count I. On June 28,1999, Rachel Yanes sought Abreu’s services in making a claim to the Immigration and Naturalization Service (INS) for temporary protected status (TPS). Abreu identified himself as an attorney to Yanes and represented to her that he was qualified to provide assistance in immigration matters. Yanes paid Abreu $550 for the preparation and filing with INS of the necessary forms for TPS. Abreu prepared and filed an application for TPS on Yanes’ behalf, as well as a work authorization form. Yanes’ TPS application was “placed in suspense” by the INS because the personal check tendered by Abreu was rejected for insufficient fees. After Abreu’s check “bounced,” the INS contacted Yanes and requested payment of the fee plus a $30 service charge. The INS ultimately denied Yanes TPS when she was unable to repay the filing fee and service charge.

Count II. In May 1999, Dr. David Garcia and his wife, Andrea Lugo Garcia, (the Garcias) contacted Abreu to represent Mrs. Garcia in an upcoming immigration court hearing, and to help Dr. Garcia reopen his immigration case. Abreu stated that he would help the Garcias obtain their green cards and that he would represent Mrs. Garcia at her hearing. Abreu gave them a card identifying himself as “Director of the Alliance Legal Group, Licensed Legal Expense Agents, Family, Business, Group.” The card listed services that included “Immigration services, Green Card-Citizenship, Relative Petition, Deportation Cases, Professional Visas-Appeals.” The Garcias paid Abreu $3450 for his services. On July 29, 1999, Abreu represented Mrs. Garcia in an immigration hearing. After that, he told the Garcias that he would continue to prepare their documents, but he would no longer represent them in court. In November 1999, Dr. Garcia paid Abreu an additional $340 for filing fees. In or about June 2000, Abreu sent the Garcias a letter stating that he would no longer represent them and that they needed to find another attorney.

The Bar argues that Abreu’s actions constitute UPL and present the potential for substantial public harm. The Bar asks this Court to issue a permanent injunction preventing and restraining Abreu from engaging in the acts complained of and otherwise engaging in the practice of law in Florida until he is duly licensed to practice law in this state. Finally, the Bar asks that this Court tax the costs of these proceedings against Abreu.

On October 16, 2001, this Court issued an order directing Abreu to show cause why he should not be enjoined from engaging in UPL. At first, service was not accomplished because Abreu had moved from his last known address. On February 22, 2002, this Court issued a second order to show cause. A private process server ultimately accomplished service and an affidavit of service was filed with this Court. Abreu did not respond to this Court’s order to show cause. On May 20, 2002, the Bar filed a motion to decide the case upon its merits.

Under Rule Regulating the Florida Bar 10-7.1(b)(4), if a respondent in a UPL case fails to respond to an order to show cause issued by this Court, “the allegations of the petition [for injunctive relief filed by the Bar] shall be taken as true for purposes of that action.” Further, “upon its motion or upon motion of any party, [the Court will] decide the case upon its merits.” Since Abreu has elected not to respond to our order to show cause, we grant the Bar’s motion and proceed to decide this case on its merits.

ANALYSIS

Accepting the allegations in the Bar’s petition as true, we conclude that Abreu’s conduct with Yanes and the Garcias constitutes the unlicensed practice of law. In Florida Bar v. Becerra, 661 So.2d 299, 300 (Fla.1995), the Bar and the respondent entered a joint stipulation agreeing that Becerra, a nonattorney, should be enjoined from engaging in various conduct, including the following: representing to the public that she or any of her employees were capable of advising on and handling matters requiring legal skills, allowing members of the public to rely on her to prepare legal forms or documents affecting their legal rights, and answering questions from individuals and entities as to which particular INS forms should be filed, how to fill out the forms or applications, or what supporting documentation should accompany the forms or applications. Most, if not all, of Becerra’s UPL conduct occurred in the context of advising individuals as to immigration matters, because the stipulation provided that “the preparation of forms to effect a change in immigration status requires legal training and familiarity with immigration laws and that failure to properly prepare the forms could result in great harm, including deportation.” Id. at 299. We approved the stipulation and concluded that Becerra had engaged in UPL, enjoining her permanently from engaging in the aforementioned conduct.

In the instant case, Abreu prepared and filed a TPS application for Yanes and assisted the Garcias in preparing documents related to obtaining green cards. We conclude that under Becerra, Abreu’s preparation and filing of immigration documents constitutes the unlicensed practice of law. See also Florida Bar v. Davide, 702 So.2d 184, 185 (Fla.1997) (preparation of legal documents by non-lawyer for another constitutes UPL); Florida Bar v. Rodriguez, 509 So.2d 1111 (Fla.1987) (nonattorney who filed immigration forms for clients engaged in the unlicensed practice of law).

Further, this Court has held that representing individuals at hearings before the INS, except to the extent INS regulations allow representation of the individual by a nonlawyer, constitutes UPL. See Florida Bar v. Corpa Immigration Services, 642 So.2d 548 (Fla.1994); Florida Bar v. Aberasturia, 529 So.2d 690, 691 (Fla.1988); Florida Bar v. Dobbs, 508 So.2d 326 (Fla.1987). Title 8 C.F.R. § 292.1(a)(3) (2002), provides that a reputable individual of good moral character, who is not an attorney or a law student, may represent individuals in immigration proceedings, provided that the following conditions are met:

(i) He is appearing on an individual case basis, at the request of the person entitled to representation;
(ii) He is appearing %vithout direct or indirect remuneration and files a written declaration to that effect;
(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and
(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.

(Emphasis added.) We conclude that Abreu does not fall under this provision of the code because he charged the Garcias $3450 for his services, which included representing Mrs. Garcia at an immigration hearing. Further, Abreu gave the Garcias a business card stating that he was director of the “Alliance Legal Group,” which advertised the group as providing immigration services. In doing so, Abreu held himself out to be qualified to provide assistance in INS matters for remuneration. In light of these factors, we conclude that Abreu’s representation of Mrs. Garcia at an INS hearing was not permitted under 8 C.F.R. § 292.1(a)(3) and, therefore, constitutes the unlicensed practice of law.

Finally, Abreu’s identifying himself to Yanes and the Garcias as an attorney and his possession of a business card identifying himself as the director of a legal group providing assistance in immigration matters constitutes UPL. In Florida Bar v. Matus, 528 So.2d 895, 896 (Fla.1988), this Court held that a respondent who maintained a business card representing himself as president of Latinoamericano De Inmagracion, Inc., and who listed his services as including, but not limited to, tourist visa extensions, student visas, political asylum, and residency had engaged in UPL. See also Becerra, 661 So.2d at 300 (nonlawyer enjoined from advertising in any manner that would lead a reasonable lay person to believe that the respondent could offer legal services, legal advice, or legal assistance to the public in immigration and naturalization matters); Dobbs, 508 So.2d at 327 (nonlawyer enjoined from representing to the public either personally or through advertisement that he was an attorney or was capable of advising on and handling matters requiring legal skills).

While this Court is expressly charged under the Florida Constitution with regulating and disciplining licensed members of The Florida Bar, we also have a duty to protect the public from laypeople who claim that they are licensed to practice law, but are not. See generally Flori da Bar v. Neiman, 816 So.2d 587, 599 (Fla.2002) (noting that “just as the public must be protected from uneducated and unlicensed physicians in an operating room, the public must be protected from bogus attorneys seeking to profit from the problems of the innocent and uninformed ... who may be taken in by a smooth but deceitful demeanor”). These nonattorneys advertise themselves as being capable of assisting individuals in their legal matters, but often end up inflicting serious harm upon unsuspecting persons. As noted in Becerra, UPL can have especially dire consequences in immigration matters because mismanagement of the client’s case could result in deportation. In the instant case, Yanes had her TPS application denied because Abreu’s check accompanying Yanes’ application bounced and Yanes was unable to repay the filing fee and the service charge. The Garcias were left in a compromised position when Abreu suddenly informed them that he could no longer represent them, and they would have to find “another attorney.” Abreu’s conduct demonstrates a total lack of concern for the well-being of the individuals who trusted him. This Court has a duty to stop such abuse of members of the public.

Accordingly, respondent Erdon I. Abreu is hereby enjoined from engaging in the practice of law in the State of Florida until he is duly licensed to practice law in this state. Recognizing that the INS has the authority to decide when and to what extent nonattorneys may represent individuals before the Service, we limit this injunction to the extent that the INS allows such representation by nonattorneys. In the event Abreu engages in any of the prohibited conduct, he will be found in indirect criminal contempt of this Court. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Erdon I. Abreu, in the amount of $451.46, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and SHAW, WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

      . The federal statute governing temporary protected status is 8 U.S.C. § 1254a (2000). For an abbreviated explanation of TPS, see Immigration & Naturalization Service, Glossary & Acronyms, http://www.ins.us-doj.gov/graphics/glossary4. htm# T (last modified June 13, 2002).

      . Although the Bar’s statement that Abreu "prepared” forms and documents for Yanes and the Garcias is somewhat vague, and the term "prepare” can encompass a wide range of activities, it is highly unlikely that the Bar would have filed a UPL petition had Abreu been engaged in mere secretarial services, and the fees charged indicate the contemplation of more than clerical involvement. Further, even if he had been engaged in solely secretarial services, Abreu had ample opportunity to challenge or refute the Bar's allegations by filing a response to this Court’s order to show cause, but elected not to do so.

      . General counsel for the INS has stated that the term “representation” has a very broad meaning in the context of INS law: "It includes activities which range from incidentally preparing papers for a person, to giving a person advice about his or her case, to appearing before the Service on behalf of a person.” Role of Visa Consultants in the Practice of Immigration Law, Op. Gen. Couns. 92-29 (June 9, 1992).


text:
    Anthony R. MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-511.
    Supreme Court of Florida.
    Dec. 5, 2002.

      Anthony R. Martin, pro se, Palm Beach, FL, for Petitioner.
    No Appearance, for Respondent.
   OPINION ON SANCTIONS

PER CURIAM.

Anthony R. Martin filed á petition for discretionary review in this Court in the instant case. In an order issued previously in this case, we denied review concluding that “the petition presents no basis for jurisdiction.” See Martin v. State, No. SC02-511, 829 So.2d 918 (Fla. July 15, 2002) (text available at 2002 Fla. LEXIS 1653). Considering that this Court previously sanctioned Martin for abusing the judicial system in Martin v. State, 747 So.2d 386 (Fla.2000), and concluding that Martin’s submission of the petition for discretionary review constituted additional abuse of the judicial system, we issued an order requiring that Martin show cause why he should not be further sanctioned. Martin has now filed his response to that order and, for the reasons set forth below, we conclude that Martin has failed to show cause why he should not be sanctioned.

FACTS

In 2000, due to Martin’s long history of filing proeedurally barred and extremely abusive petitions, this Court issued a written decision sanctioning Martin. See Martin v. State, 747 So.2d 386 (Fla.2000). The sanction imposed essentially denied Martin leave to proceed in forma pauperis for writ petitions, which were the types of pleadings that he was abusing. Out of concern that a total denial of indigency might be unduly restrictive, the Court imposed a sanction that denied Martin prospective indigency in civil writ petitions only. The sanction left unrestricted, among other things, Martin’s ability to file other types of actions such as legitimate petitions for writ of habeas corpus (since they .require no filing fee) and petitions for discretionary review. See Martin v. State, 747 So.2d 386, 392 (Fla.2000). We also warned Martin that should he continue to abuse the processes of this Court, he would be further sanctioned. Id. at 391. Since that time, Martin has indeed continued to abuse the processes of this Court. He has submitted literally thousands of pages of documents to this Court inappropriately denominating his filings as petitions for discretionary review or as petitions for writ of habeas corpus, even though no such jurisdiction existed. Since the sanction order did not bar legitimate petitions for writ of habeas corpus or petitions for discretionary review, it has been necessary for us to carefully examine each of Martin’s many pleadings to determine whether they violated the sanction order. Since each case was extremely lengthy and poorly organized, a great deal of judicial effort and resources has been wasted in reviewing his pleadings.

This Court has discretionary review jurisdiction to review several narrow classes of district court decisions. See art. V, § 3(b)(3)-(4), Fla. Const. In the last few years Martin received a number of written decisions from the district courts. Unfortunately, he delayed seeking discretionary review in this Court. Further, when he finally sought review of those decisions, he inappropriately continued filing petitions for writs of habeas or mandamus, not petitions for discretionary review. However, as it does for all petitioners, the clerk’s office treated the petitions as they should have been denominated — as petitions for discretionary review — but then dismissed them as untimely. After the clerk’s office began doing this, Martin “discovered” that such petitions were not barred by the sanction order and he began filing nearly all his pleadings as petitions for discretionary review. Most were not, however, true petitions for discretionary review, and after carefully reviewing each pleading, we rejected them in accordance with the sanction order.

Nevertheless, Martin has twice succeeded in filing a timely petition for discretionary review. In the first one, Martin alleged that the district court’s decision in Martin v. State, 796 So.2d 1271 (Fla. 4th DCA 2001), conflicted with numerous decisions from this Court and the district courts. This Court denied review, concluding that the petition presented no basis for the exercise of its jurisdiction. Martin v. State, 816 So.2d 127 (Fla.2002).

This is Martin’s second timely petition for discretionary review. The “decision” under review in this case was a rather long, unpublished order denying five motions Martin had filed in the Fourth District Court of Appeal. After the Fourth District provided Martin no relief in its decision in the earlier case, Martin filed another appeal in that court, attempting to seek review of the same trial court order. In the latter case, the Fourth District dismissed the appeal as untimely. Martin v. State, No. 4D01-1664 (Fla. 4th DCA Oct. 30, 2001). In a routine court order, it also subsequently denied five motions filed by Martin. That routine order did not discuss the underlying subject of Martin’s appeal. Nevertheless, Martin filed the instant petition for discretionary review, asserting that this nearly unelaborated order conflicted with a number of decisions from both this Court and the district courts on the subject of res judicata, right to counsel, and other matters. It was immediately clear, however, that the Fourth District’s order did not discuss or even mention any of those subjects and that Martin’s “jurisdictional” arguments had nothing at all to do with this Court’s conflict jurisdiction. He was simply reargu-ing the merits of his criminal case as well as contesting the Fourth District’s October 17, 2001, written decision in Martin v. State, 796 So.2d 1271 (Fla. 4th DCA 2001), which was the subject of Martin’s previous petition for discretionary review. In essence, Martin was attempting to seek review of the same district court decision over and over again by repeatedly appealing the same trial court order and then seeking discretionary review of each order he received from the Fourth District. We concluded that this type of repetitive behavior constituted an abuse of the discretionary review process. Thus, we denied the petition for discretionary review for lack of jurisdiction and issued Martin an order requiring that he show cause why he should not be further sanctioned such that any further pleadings submitted by him would have to be signed by an attorney in good standing with The Florida Bar.

In Martin’s response to that order, he asserts that such a proposed sanction has already been determined to be improper in Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986). In addition, he asserts that it is not he who has abused the system, but rather, the judicial system and this Court that have abused him. For this reason, Martin maintains, he must continue to file lawsuit after lawsuit. Finally, he concludes, since this Court has consistently refused to protect his constitutional rights, he must find a court with more respect for constitutional rights than this one. He then threatens that this Court’s “outrageous behavior” will be punished by a higher court.

ANALYSIS

We reject Martin’s response as completely without merit and decline to address all of his arguments except the contention that this Court cannot sanction Martin in the manner proposed based on Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986).

Some sixteen years ago, in Procup, a federal appellate court concluded that a lower court’s order barring all pro se proceedings from an inmate who had “engaged in ridiculously extensive litigation” was too broad because the inmate tended to sue his attorneys so it was unlikely he could find an attorney to take his eases.

We do not, however, believe that this 1986 case represents the current state of the law in this area. In 1989, the United States Supreme Court began sanctioning abusive litigants by denying them prospective indigency as a sanction for filing frivolous pleadings. See In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989). As discussed, a prospective denial of indigency status is not effective against abusive litigants in this Court due to the fact that petitions for writ of habeas corpus are free in this State. Instead, this Court has utilized the “attorney only” sanction first imposed in Attwood v. Singletary, 661 So.2d 1216 (Fla.1995). We have only used this type of sanction with particularly abusive litigants, and Martin is, in our opinion, the “worst of the worst.” This Court has used this type of sanction since 1995, and no court has found them to be improper. In fact, the year after this Court barred Attwood, the United States Supreme Court also imposed sanctions on him for his frivolous filings. See, e.g., Attwood v. Singletary, 516 U.S. 297, 116 S.Ct. 769, 133 L.Ed.2d 721 (1996). Thus, we conclude that neither Procup nor any of the United States Supreme Court’s cases preclude this Court from imposing such a sanction.

This Court ordered Martin to show cause why he should not be sanctioned for abusing the judicial system by filing pleadings that failed to properly invoke the jurisdiction of this Court. Martin has not done so. Instead, he has responded with insults, threats of federal litigation, and continued reargument of issues which have already been determined adversely to him. Martin has already had his appeal in the district court. There is simply no right to a second appeal to Florida’s highest court. Under the Florida Constitution, after the direct appeal, only litigants who receive certain types of district court decisions may seek discretionary review in this Court. See generally art. V, § 3(b), Fla. Const. Martin clearly feels that despite the fact that he had not received a decision that would provide this Court with discretionary review jurisdiction, he wants this Court to review his case anyway because his rights have allegedly been violated. Martin simply refuses to conform himself to the jurisdictional requirements necessary for him to attain this Court’s jurisdiction. Instead, he endeavors to find ways to avoid this Court’s attempts to discourage him from continuing to litigate the issues that have already been resolved. In short, we are convinced that any further limitations set by this Court, short of requiring an attorney, will be violated and avoided, as he has violated and avoided the previous limitations this Court imposed on him in Martin v. State, 747 So.2d 386 (Fla.2000). As we said not long ago regarding another extremely litigious petitioner:

While we are cognizant of the access to courts implications of refusing to accept any more petitions from [the petitioner] unless they are signed by an attorney, we are also concerned that failure to impose this sanction will handicap this Court’s ability to timely review the many other petitions filed by inmates and other petitioners who have not abused the system. While on the one hand, we would like to say that the courts should never limit a person’s ability to access the courts, on the other hand, there are a handful of petitioners who have so abused the system that failure to restrain them could deny or delay the right of access to courts for the rest of the populace. Even the United States Supreme Court has had to face the difficult perspective of putting significant restraints on some of its pro se litigants. Several of the members of the United States Supreme Court did not agree that limits should ever be placed on a litigant; however, a majority of that Court has found [in In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989),] that in extreme circumstances, it was necessary to do so to ensure free access to the courts in general.

Jackson v. Florida Dep’t of Corrections, 790 So.2d at 401 (footnote omitted).

We have recognized before that “the resources of our court system are finite and must be reserved for the resolution of genuine disputes.” Armstead v. State, 817 So.2d 841, 843 (Fla.2002) (quoting Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998)). Thus, in order to preserve the right of access for all litigants, we hereby instruct the Clerk of this Court to accept no pleading for filing from Martin unless that pleading is submitted and signed by an attorney who represents Martin and who is a member in good standing of The Florida Bar.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, LEWIS, and QUINCE, JJ., and HARDING, Senior Justice, concur.

PARIENTE, J., recused.

      . Martin is also known as or was previously known as Anthony R. Martin-Trigona.

      . Martin has filed literally thousands of lawsuits across the nation and is particularly malicious in his abuse. A Lexis search reveals 135 cases across the nation mentioning him by name. See, e.g., In re Martin-Trigona, 573 F.Supp. 1245 (D.Conn.1983) (commenting upon the extent to which Martin had succeeded in multiplying lawsuits around the country), rev'd in part on other grounds, 737 F.2d 1254 (2d Cir.1984); In re New Haven Grand Jury, 604 F.Supp. 453, 455 n. 1 (D.Conn.1985) ("There is a mass of litigation, largely pernicious, in this Circuit and elsewhere associated with the name of Anthony R. Martin-Trigona....''). There are seven law review articles on abusive litigants in which Martin is mentioned by name.

      . Martin graduated from law school in Illinois but was denied admission by the Illinois Supreme Court due to his abusive behavior. See In re Martin-Trigona, 55 Ill.2d 301, 302 N.E.2d 68 (1973) (noting that Martin lacked the qualities of responsibility, candor, fairness, self-restraint, objectivity, and respect for the judicial system as well as having a propensity to unreasonably react against anyone he believed opposed him), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974).

      . In this published opinion, the United States Supreme Court denied Attwood's request to proceed in forma pauperis in that case and prospectively as a sanction for filing frivolous petitions.


text:
    ALLSTATE INSURANCE COMPANY, Petitioner, Cross-Respondent, v. Julian MARTINEZ, Respondent, Cross-Petitioner.
    No. SC01-1622.
    Supreme Court of Florida.
    Dec. 12, 2002.
    Christopher J. Lynch of Angones, Hunter, McClure, Lynch, Williams & Garcia, P.A., Miami, FL, for Petitioner, Cross-Respondent.
    Michael J. Higer of Mintz, Truppman, Clein & Higer, P.A., North Miami, FL; and Lauri Waldman Ross and Theresa L. Girten of Lauri Waldman Ross, P.A., Miami, FL, for Respondent, Cross-Petitioner.
   PER CURIAM.

We have for review the decision in Allstate Insurance Co. v. Martinez, 790 So.2d 1151 (Fla. 3d DCA 2001), in which the Third District affirmed the decision of the trial court. The parties were in dispute over whether a homeowner’s insurance policy appraisal clause required formal arbitration, governed by the Florida Arbitration Code. See id. at 1152. The Third District certified conflict with the decisions in Hoenstine v. State Farm Fire & Casualty Co., 736 So.2d 761 (Fla. 5th DCA 1999), and Florida Farm Bureau Casualty Insurance Co. v. Sheaffer, 687 So.2d 1331 (Fla. 1st DCA 1997). See id. at 1152 n. 2. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

In Allstate Insurance Co. v. Suarez, 833 So.2d 762 (Fla.2002), we recently held that an identical appraisal clause in a homeowner’s insurance policy plainly provided for appraisal proceedings, and did not represent an agreement to submit to formal arbitration proceedings by the parties. Accordingly, we similarly approve the Third District’s decision in this case.

It is so ordered.

ANSTEAD, C.J., and SHAW, WELLS, PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANTERO, J., recused.

      . The Third District affirmed the trial court's ruling that the informal appraisal procedures were the proper resolution of this case. See Martinez, 790 So.2d at 1152. However, the Third District reversed and remanded the case, regarding the trial court’s order of prejudgment interest. See id. We do not reach a discussion of the Third District’s decision of prejudgment interest in this opinion.


text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Luis SUAREZ and Lilia Suarez, Respondents.
    No. SC01-1459.
    Supreme Court of Florida.
    Dec. 12, 2002.
    Christopher J. Lynch of Angones, Hunter, McClure, Lynch, Williams & Garcia, P.A., Miami, FL, for Petitioner.
    John S. Cosgrove of Cosgrove Law Offices and Jeanne Heyward, Miami, FL, for Respondents.
   PER CURIAM.

We have for review the decision in Allstate Insurance Co. v. Suarez, 786 So.2d 645 (Fla. 3d DCA 2001), which certified conflict with the decision in Hoenstine v. State Farm Fire & Casualty Co., 736 So.2d 761 (Fla. 5th DCA 1999), and Florida Farm Bureau Casualty Insurance Co. v. Sheaffer, 687 So.2d 1331 (Fla. 1st DCA 1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the Third District’s decision in this case for the reasons explained herein.

FACTS

On August 24, 1992, the Suarez home was damaged by the force of Hurricane Andrew. See Suarez, 786 So.2d at 646. The Suarezes were insured by an Allstate Insurance Company homeowner’s policy, which provided:

Appraisal. If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand each party must select a competent and impartial appraiser and notify the other of the appraiser’s identity within 20 days after the demand is received. The appraisers will select a competent and impartial umpire. If the appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge or a court of record in the state where the resident premises is located to select an umpire. The appraisers shall then determine the amount of loss, stating separately the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of loss. If they cannot agree, they will submit their differences to the umpire. A written award by any two will determine the amount of loss.

Id. Allstate initially paid a Suarez claim based on damage from Hurricane Andrew in September of 1992. See id. However, in June of 1997, the Suarezes filed a supplemental claim and disputed the adequacy of the amount of the initial payment. See id. Allstate denied the supplemental claim, citing to the September 1992 payment as full reimbursement for the hurricane damage. See id. The Suarezes sought relief in circuit court, filing a complaint for declaratory relief and a petition to compel appraisal. See id. After the trial court granted the Suarezes’ petition to compel an appraisal against Allstate, the trial court appointed a neutral appraisal umpire and the parties chose two other appraisers. See id. Allstate thereafter contended that the appraisal umpire should apply the Florida Arbitration Code to the appraisal proceedings, but the umpire denied Allstate’s request and eonduet-ed an informal appraisal hearing. See id. After the umpire and two appraisers rendered an award, the trial court entered a final judgment granting the plaintiffs’ motion to confirm the appraisal award.' See id. Allstate’s motion to vacate the award, on the basis that the Arbitration Code should have been applied in the appraisal hearing, was denied. See id.

The Third District affirmed the trial court’s award to the Suarezes, rejecting Allstate’s claim that arbitration rules should have been applied, explaining:

Both parties agree that the insurance contract contained an appraisal provision for the purpose of settling disputes relating to the valuation of a loss. Such provisions are common in homeowners insurance policies....
... Here, as in Hernandez, the agreement specifically provides for an appraisal. It is difficult to imagine that a formal arbitration hearing was within the contemplation of the parties when entering into the agreement.

See id. at 646-47. The Third District held that “the trial court was correct in upholding the neutral umpire’s decision to conduct the appraisal in an informal manner,” certifying conflict with Hoenstine and Sheaffer. Id. at 647.

APPRAISAL CLAUSE

In Florida Farm Bureau Casualty Insurance Co. v. Sheaffer, 687 So.2d 1331 (Fla. 1st DCA 1997), the Sheaffers’ roof was damaged by hurricane, and, because matching tiles for their roof were no longer being made, they sought to have their insurer cover the replacement cost for an entirely new roof. See id. at 1331-32. The insurance company refused, stating that the roof could still be repaired with inconsistent tiles. See id. The Sheaffers filed suit seeking a declaratory judgment for the full coverage and replacement of their roof and a judgment for damages. See id. The insurance company sought to have the suit dismissed, claiming that the Sheaffers’ suit should be handled according to the policy’s appraisal clause. See id. The insurance company further argued that the policy’s appraisal clause required the parties to arbitrate the matter, pursuant to the Florida Arbitration Code, as a condition precedent to the Sheaffers maintaining their lawsuit. See id.

The Sheaffers countered that the issue of replacing the entire roof was a “coverage” issue, which would require judicial construction of the policy. See id. The trial court denied the insurance company’s motion to dismiss, concluding that the parties’ dispute involved an issue of policy coverage. See id. The First District reversed and remanded the trial court’s ruling, finding that the appraisal provision constituted an arbitration agreement, stating:

The determination of whether an appraisal provision should be construed as an agreement to arbitrate not only establishes the basis of our jurisdiction over the case on appeal, it also establishes the procedures which govern this type of alternative dispute resolution. Here, as the insurance company concedes, the appraisers will be involved in more than a simple computation of repair costs to determine the amount of loss. Rather, they must resolve whether the language of this replacement cost policy requires a calculation of loss which would consider the subjective value the Sheaffers placed on the unique qualities of their tile roof, or whether replacement of the roof should be ordered only if it is necessary to prevent the roof from leaking.... Thus, the nature of the appraisers’ duties will require the exercise of quasi-judicial authority to resolve the dispute. Further, these issues are likely to be beyond the knowledge and expertise of the appraisers and will require examination of witnesses to make a correct and fair determination of the loss suffered.

Id. at 1334-35.

In Hoenstine v. State Farm Fire & Casualty Co., 736 So.2d 761 (Fla. 5th DCA 1999), the Fifth District considered an appraisal provision “nearly identical” to the one in Sheaffer. Id. at 761. The Hoen-stines and their insurance company disagreed about “the values of property damaged by a tornado.” Id. After the trial court ruled that the appraisal clause in the insurance policy contemplated an informal procedure instead of a formal arbitration hearing, the Fifth District reversed, agreeing with the holding in Sheaffer that the appraisal clause in the Hoenstine’s policy should be treated as a binding arbitration agreement. See id. at 761-62.

AGREEMENT FOR APPRAISAL

The issue to be resolved is whether an unambiguous provision for appraisal may be construed as an agreement to arbitrate the underlying dispute. As we stated in Siegle v. Progressive Consumers Insurance Co., 819 So.2d 732 (Fla.2002): “When an insurance contract is not ambiguous, it must be given effect as written. See State Farm Fire & Cas. Co. v. Oliveras, 441 So.2d 175, 178 (Fla. 4th DCA 1983).” Id. at. 735.

Neither the trial court nor the Third District in Suarez found the appraisal clause in the homeowner’s policy to be ambiguous, nor do we find any ambiguity in the clause. It is clear from a plain reading of the clause that an informal appraisal proceeding, not a formal arbitration hearing pursuant to section 682.06, Florida Statutes (1999), was intended and agreed upon by the parties in agreeing to the appraisal provisions of the policy. See Liberty Mut. Fire Ins. Co. v. Hernandez, 735 So.2d 587, 589 (Fla. 3d DCA 1999) (“[T]he clause contemplates inspection and valuation by each appraiser individually, not a trial-type hearing.”).

We disapprove of the decisions in Sheaffer and Hoenstine, because the appraisal clauses in those cases were substantially similar to the one in the present case, and a plain reading of those clauses reveals that formal arbitration was not contemplated or agreed upon by the parties. In Sheaffer, the First District went beyond the plain meaning of the appraisal clause when it considered that the appraisers would have to “exercise ... quasi-judicial authority to resolve the dispute.” 687 So.2d at 1334. Further, we disapprove of the analysis that “the appraisal provision neither excludes application of the Florida Arbitration Code, nor sets forth procedures inconsistent with the Arbitration Code.” Id. at 1335 (citations omitted). Once a trial court has determined that the appraisal provisions of a contract of insurance have been properly invoked, further proceedings should be conducted in accord with those provisions, rather than by the wholly different proceedings contemplated by an agreement to arbitrate.

Thus, we agree with the Third District’s conclusion in this case that “the agreement specifically provides for an appraisal. It is difficult to imagine that a formal arbitration hearing was within the contemplation of the parties when entering into the agreement.” Suarez, 786 So.2d at 647. Once the trial court in this case found that the Suarezes properly invoked the appraisal clause and directed the parties to appraisal proceedings, the umpire correctly followed the trial court’s ruling by refusing to proceed under the formal procedures of the Arbitration Code.

Accordingly, we approve the decision of the district court of appeal and disapprove the holdings in Sheaffer and Hoenstine.

It is so ordered.

ANSTEAD, C.J., and SHAW, WELLS, PARIENTE, LEWIS and QUINCE, JJ., concur.

CANTERO, J., recused.

      . It appears that the Third District twice mistakenly refers to the two appointed appraisers as ''arbitrators.” See Suarez, 786 So.2d at 646. The record reflects that two appraisers were appointed by the parties.

      . See Liberty Mut. Fire Ins. Co. v. Hernandez, 735 So.2d 587 (Fla. 3d DCA 1999) (noting that although appraisal clauses are often treated as arbitration clauses, the two procedures are very different and finding that the clause in that case did not contemplate a trial-type hearing).

      . The appraisal clause discussed in Sheaffer stated:
      Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the residence premises is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agree [sic] upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.
      Each party will:
      a. pay its own appraiser; and
      b. bear the other expenses of the appraisal and umpire equally.
      Sheaffer, 687 So.2d at 1332.

      . The appraisal clause disputed in Hoenstine stated:
      6. APPRAISAL. If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, independent appraiser. Each shall notify the other of the appraiser’s identity within twenty (20) days of receipt of the written demand. The two (2) appraisers shall then select a competent, impartial umpire. If the two (2) appraisers are unable to agree upon an umpire within fifteen (15) days, you or we can ask a judge of a court of record in the State where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers fails [sic] to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two (2) of these three (3) shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us.

        Hoenstine, 736 So.2d at 761.

      . Cf. Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021 (Fla.2002) (holding that causation is a coverage question for the court, not the appraisal panel, when the insurer denies that there is a covered loss).