source: Caselaw Access Project

author: WELLS, J. QUINCE, J., BELL, J.,

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, THE FLORIDA RULES OF CRIMINAL PROCEDURE, THE STANDARD JURY INSTRUCTIONS IN CIVIL CASES, AND THE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—IMPLEMENTATION OF JURY INNOVATIONS COMMITTEE RECOMMENDATIONS.
    No. SC05-1091.
    Supreme Court of Florida.
    Oct. 4, 2007.
    Corinne Cotton Hodak, Chair, Jacksonville, FL, and Keith H. Park, Past Chair, the Civil Procedure Rules Committee, West Palm Beach, FL; H. Scott Finger-hut, Chair, Miami, FL, and the Honorable Thomas H. Bateman, Past Chair, Criminal Procedure Rules Committee, Second Judicial Circuit, Tallahassee, FL; Scott D. Ma-kar, Chair, Standard Jury Instructions Rules Committee in Civil Cases, Office of General Counsel, Jacksonville, FL, and the Honorable Ralph Artigliere, Past Chair, Tenth Judicial Circuit, Bartow, FL; the Honorable O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Eighteenth Judicial Circuit, Sanford, FL; the Honorable Terry David Terrell, Chair, Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, and Bill Cervone, Past Chair, Office of State Attorney, Eighth Judicial Circuit, Gainesville, FL; the Honorable Robert T. Benton, II, Chair, Rules of Judicial Administration Committee, First District Court of Appeal, Tallahassee, FL, and Katherine E. Gid-dings of Akerman Senterfitt, Tallahassee, FL, for Petitioners.

      Michael Ufferman, P.A. and Paula S. Saunders, Office of Public Defender, Tal-lahssee, FL, on behalf of Florida Association of Criminal Defense Lawyers; Bill Wagner, Tampa, FL; Bill Wagner, Tampa, FL; the Honorable Kathleen F. Dekker, Second Judicial Circuit, Tallahassee, FL; the Honorable Nancy A. Daniels, Office of Public Defender, Tallahassee, FL, on behalf of the Florida Public Defender Association; Daniel S. Ciener, Merritt Island, FL; the Honorable David A. Giant, Eighth Judicial Circuit, Gainesville, FL; Brian L. Tannebaum and Milton Hirsch, Miami, FL, on behalf of Florida Association of Criminal Defense Lawyers — Miami Chapter; the Honorable Dale Ross, Seventeenth Judicial Circuit, Fort Lauderdale, FL; Arthur I. Jacobs of Jacobs and Associations, P.A., Fernandina Beach, FL, on behalf of the Florida Prosecuting Attorneys Association; John F. Harkness, Jr., Executive Director, the Florida Bar, Tallahassee, FL, and George Euripedes Tragos, Past Chair, Criminal Procedure Rules Committee, Clearwater, FL, Responding with comments.
   WELLS, J.

We have for consideration a number of proposed amendments to court rules and standard jury instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

I. BACKGROUND

In November 1999, the Jury Innovations Committee (Committee) of this Court’s Judicial Management Council embarked on the most comprehensive review and thorough evaluation of Florida’s jury system in the history of this state. The Committee, appointed by then Chief Justice Major B. Harding, consisted of twenty-two members, who were broadly representative of the many groups interested in and affected by Florida’s civil and criminal jury system. Members included judges from the district, circuit, and county courts, a state attorney, a public defender, a clerk of court, a trial court administrator, a jury coordinator, a professor of criminal justice, members of The Florida Bar, a former state senator, and four former jurors, one from a high-profile case. This Committee identified and reviewed, among other things, the current use of juries, issues facing jury managers, accessibility issues, and proposals for jury improvement and innovations in other states.

The Committee began its task with the challenge not to adhere to the status quo but instead to advocate reform and innovations. After reviewing every aspect of our jury system, the Committee ultimately submitted a final report to this Court containing comprehensive recommendations for improving Florida’s jury system. After considering the Committee’s final report, the Court referred, either for implementation or for consideration and recommendation, a number of the Jury Innovations Committee’s recommendations to the Civil Procedure Rules Committee, the Criminal Procedure Rules Committee, the Rules of Judicial Administration Committee, the Committee on Standard Jury Instructions — Criminal (Criminal Jury Instructions Committee), the Committee on Standard Jury Instructions — Civil (Civil Jury Instructions Committee), and the Code and Rules of Evidence Committee. In re Final Report of Jury Innovations Committee, Fla. Admin. Order No. AOSC03-041 (Oct.17, 2003). The Court later referred one of the Committee’s recommendations to the Criminal Court Steering Committee for implementation. Specifically, the recommendations that were referred to one or more committees were as follows:

Standardized Juror Questionnaires
Pre-voir dire questionnaires are desirable and beneficial. Model questionnaires should be developed for both civil and criminal cases, enabling lawyers to have a preview of jurors’ backgrounds. In-court voir dire can then be limited to case-specific inquiries (subject to reasonable time limitations imposed by the court) and any follow-up questions necessary to clarify written answers.
Questions by Jurors
Jurors in both civil and criminal trials should be permitted to submit to the judge written questions to be asked of witnesses by the judge. The judge has the discretion to determine which jury questions are to be asked of witnesses. The Supreme Court should incorporate this right into the rules of civil and criminal procedure.
Note-Taking by Jurors
Jurors in both civil and criminal trials should be permitted to take notes and be advised they may do so. This right should be incorporated into the rules of civil and criminal procedure. Such rules would clarify that juror notes may be taken with them from the courtroom to the jury room. These notes may be shared with other jurors, but must be destroyed after the verdict is delivered. Appropriate jury instructions must be given.
Juror Notebooks
Juror notebooks, which can serve a useful function (especially in civil cases) in lengthy and complex trials, should be specifically authorized by court rule.
Juror Time Management
American Bar Association (ABA) Standard 13: Juror Use should be adopted as a rule of judicial administration.
Written Jury Instructions
Copies of the written jury instructions should be given to jurors for their use during deliberations.
Final Instructions Before Closing Arguments
Judges should be encouraged to deliver their final instructions to the jury before closing arguments.
Judicial Answers to Deliberating Jurors’ Questions
Trial judges should be as responsive as possible and fully answer deliberating jurors’ questions, consistent with applicable case law. The trial judge, when possible, should not ask jurors to rely on them “collective memory” when the judge is faced with questions from a deliberating jury, but rather respond more directly to them inquiries.
Read-Back of Testimony
The Supreme Court should develop specific criteria for denying a read-back request. Such criteria could include relevant factors, such as whether the requested testimony is too lengthy or too vague. While the trial judge should have discretion in granting or denying the read-back of testimony, such a read-back should not be denied unless the court finds that one of the criteria, such as excessive length or vagueness, is met.
Juror Impasse
Trial judges in criminal and civil cases should be allowed to assist deliberating juries in reaching a verdict where an Allen charge has been given and the jury continues to report that they are deadlocked. Jurors should know exactly what can occur if they cannot reach a verdict, that is, what a mistrial actually means.
Post-Verdict Discussions
Judges should advise jurors of their rights regarding post-verdict discussions at the conclusion of a trial. This issue should become institutionalized through the judicial educational component of both the New Judges College and the Advanced College for Judicial Education. Experienced trial judges, acting as instructors at these respective colleges, can provide valuable insight and information to fellow judges regarding post-verdict discussions.

The various committees have now submitted their reports in response to these recommendations, most of which propose various amendments to court rules or standard jury instructions. The proposed amendments were published for comment, and a number of comments were received. Some of the Jury Innovations Committee’s recommendations received adverse comments from various committees that submitted reports or those who commented on the proposed amendments.

II. AMENDMENTS

Upon consideration of the reports submitted by the various committees, the comments filed in response to the publication of the proposed amendments, and the presentations of the parties during the two oral arguments heard in this case, we adopt the following amendments to court rules and authorize new and revised jury instructions in response to the Jury Innovations Committee’s recommendations.

A.Standardized Juror Questionnaires

As noted, the Jury Innovations Committee recommended the development of juror questionnaires for use in both civil and criminal cases. The Florida Rules of Civil Procedure currently contain a standard juror questionnaire, form 1.984 — Juror Voir Dire Questionnaire. We conclude that this form is adequate for use in civil cases, and we adopt new Florida Rule of Criminal Procedure 3.9855 — Juror Voir Dire Questionnaire, as proposed by the Criminal Procedure Rules Committee, for use in criminal cases. The use of these forms shall be at the discretion of the chief judge of each circuit court.

B.Questions by Jurors

In response to the Jury Innovations Committee’s recommendation with regard to questions by jurors, we adopt new civil and criminal rules and authorize the publication and use of new civil and criminal jury instructions. New Florida Rule of Civil Procedure 1.452 requires a court to permit jurors to submit written questions directed to witnesses or the court and provides the procedure for doing so. New Florida Rule of Criminal Procedure 3.371 provides the trial court with discretion to permit juror questions during the trial under a similar procedure as set forth in the corresponding civil rule. New standard civil instruction 1.13 and new standard criminal instruction 2.13 explain the procedure to the jury.

C.Juror Note-taking

As noted, the Jury Innovations Committee recommended that jurors in both civil and criminal trials should be permitted to take notes and be advised they may do so. To accomplish this purpose, we authorize the publication and use of revised standard civil instruction 1.8, as proposed by the Civil Jury Instructions Committee. We also authorize the publication and use of an identical criminal instruction, new standard criminal instruction 1.6. The revised civil and new criminal instructions inform jurors that they may but are not required to take notes during the trial, give guidance on the use of notes, and advise the jurors that their notes will be destroyed once the trial is completed. We also authorize a revision to standard civil instruction 7.2 regarding the use of notes during deliberations.

Finally, as proposed by the Rules of Judicial Administration Committee, we add new subdivision (l) to Florida Rule of Judicial Administration 2.430 — -Retention of Court Records. This new subdivision requires the court, at the conclusion of the trial and promptly following discharge of the jury, to collect juror notes and immediately destroy them.

D.Juror Notebooks

To implement the Jury Innovations Committee’s recommendation that juror notebooks be authorized by court rule, we adopt new Florida Rule of Civil Procedure 1.455 — Juror Notebooks and an identical criminal rule, new Florida Rule of Criminal Procedure 8.372 — Juror Notebooks. We also amend civil rule 1.200(b) to add the potential use of juror notebooks to the list of issues to be addressed at the pretrial conference.

E.Juror Time Management

The Jury Innovations Committee’s recommendation with regard to juror time management recognizes research that shows juror satisfaction is directly linked to how efficiently juror time is managed. In keeping with this recognition, we adopt new Florida Rule of Judicial Administration 2.256 — Juror Time Management. This new rule incorporates the provisions of the American Bar Association Standards Relating to Juror Use and Management and is meant to provide meaningful guidance to the courts on how to achieve the most efficient use of juror time.

F. Written Jury Instructions

To implement the Jury Innovations Committee’s recommendation regarding written jury instructions, we amend Florida Rule of Civil Procedure 1.470(b) and Florida Rules of Criminal Procedure 3.390(b) and 3.400 to require the court to provide the jury with a written set of instructions for use in deliberations.

G. Final Instructions Before Closing Arguments

As noted, the Jury Innovations Committee recommended that judges be encouraged to give final instructions to the jury before closing arguments. We agree that there are advantages to doing so and that this procedure should be encouraged. However, we conclude that the timing of instructions should ultimately be left to the discretion of the trial judge on a case-by-case basis. Accordingly, we amend Florida Rule of Civil Procedure 1.470(b) to allow a trial judge to orally instruct the jury either before or after closing arguments and provide appropriate instructions during the trial. If instructions are given prior to final argument, the amended rule directs the trial judge to give final procedural instructions after final arguments and before deliberations. A similar amendment is made to Florida Rule of Criminal Procedure 3.390(a).

H.Judicial Answers to Deliberating Jurors’ Questions

In response to the Jury Innovations Committee’s recommendation that judges be as responsive as possible to deliberating jurors’ questions, we authorize the publication and use of new standard civil instruction 7.3(a)' — Answers to Juror Inquiries During Deliberations, as proposed by the Civil Jury Instructions Committee. This new instruction provides a format for judges to follow in recognizing and answering or, where appropriate, not answering juror questions. We also authorize an identical criminal instruction, new standard criminal instruction 4.3.

I.Read Back of Testimony

The Jury Innovations Committee recommended that the Court develop specific criteria for the denial of a juror request to read back portions of the trial testimony. However, in its response to this recommendation, the Civil Procedure Rules Committee declined to propose a rule on this subject, correctly pointing out that current Florida case law gives trial judges broad discretion in deciding whether to read back testimony. See, e.g., Francis v. State, 808 So.2d 110, 130 (Fla.2001) (finding no abuse of discretion where trial court told jury that reading back of testimony would take three hours and then left it up to the jury to decide); State v. Riechmann, 777 So.2d 342 (Fla.2000); Henry v. State, 649 So.2d 1361, 1365 (Fla.1994); Miller v. State, 605 So.2d 492, 495 (Fla. 3d DCA 1992) (finding no abuse of discretion where court reporter did not have her notes with her); DeCastro v. State, 360 So.2d 474 (Fla. 3d DCA 1978) (finding no abuse of discretion where it was not practical because testimony was extensive and court reporter was physically exhausted). We conclude that trial judges should continue to have broad discretion in denying read-back requests. Accordingly, we decline to adopt any rule in this respect.

We do, however, authorize the publication and use of new civil and criminal jury instructions addressing the read-back of testimony. New standard civil instruction 7.3(b) provides a framework for acknowledging and either granting, deferring, or denying a jury’s request for a read-back of testimony. For use in criminal trials, we authorize an identical criminal instruction, new standard criminal instruction 4.4.

J.Juror Impasse

Both the Civil Jury Instructions Committee and the Criminal Jury Instructions Committee opposed the Jury Innovations Committee’s recommendation with regard to a more active judicial role in overcoming a juror impasse. We defer to the jury instructions committees’ expertise on this matter and decline to adopt any amendments to the current standard jury instructions.

K.Post-Verdict Discussions

In response to the Jury Innovations Committee’s recommendation that judges advise jurors of them rights regarding post-verdict discussions at the conclusion of a trial, we agree with the recommendation of the Civil Jury Instructions Committee that current standard civil instruction 7.4 — Instructions Upon Discharge of Jury is sufficient. We authorize the publication and use of revised standard criminal instruction 4.2 — Instruction Upon Discharge of Jury as proposed by the Criminal Jury Instructions Committee.

CONCLUSION

Accordingly, we hereby amend the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, and the Florida Rules of Criminal Procedure, as reflected in the appendix to this opinion. New language is indicated by underlining, and deleted language is struck through. The amendments shall become effective on January 1, 2008, at 12:01 a.m.

We also authorize the publication and use of the new and revised civil and criminal jury instructions as set forth in the appendix to this opinion. In so doing, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Civil or Criminal Jury Instructions Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. Like the court rule amendments, the new and revised instructions shall become effective on January 1, 2008, at 12:01 a.m.

Finally, we wish to acknowledge the hard work and dedication of the Jury Innovations Committee, particularly by its Chair, the Honorable Robert Shevin of the Third District Court of Appeal, in bringing to this Court its comprehensive recommendations for innovation and improvement of the jury system in Florida. We also wish to thank the Civil Procedure Rules Committee, the Criminal Procedure Rules Committee, the Rules of Judicial Administration Committee, the Civil Jury Instructions Committee, the Criminal Jury Instructions Committee, the Criminal Court Steering Committee, and the Code and Rules of Evidence Committee for their thoughtful consideration, recommendations, and insight into the issues referred to them. The fruits of the labor of all of those who have participated in this matter will be gleaned by the citizens of this state in the form of a more meaningful and satisfying jury experience, as well as a more efficient and more effective jury system overall.

It is so ordered.

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

QUINCE and BELL, JJ., concur in part and dissent in part with an opinion.

QUINCE, J.,

concurring in part and dissenting in part.

While I agree with many of the changes suggested by the various committees and adopted by this Court, I cannot agree in the areas of juror questioning and juror note-taking. I would not adopt the proposal to allow questions by the jury. I strongly believe that it is the responsibility of the parties through their attorneys to present the evidence to the jury in the form of their questions and the physical and demonstrative evidence. In addition, I would not allow jurors to take notes except in cases where the trial exceeds three days. The collective memory of the jurors should not become what one juror may have written down.

BELL, J.,

concurring in part and dissenting in part.

I fully concur with all but one of the innovative changes adopted in the majority opinion. As adopted, Florida Rule of Civil Procedure 1.452 — Questions by Jurors mandates that in every civil jury trial the court must allow “jurors to submit to the court written questions directed to witnesses or to the court.” I agree that jurors in civil cases generally should be permitted to submit such questions. However, I also agree with what the Civil Procedure Rules Committee characterized as its “strong recommendation” that, as in new Florida Rule of Criminal Procedure 3.371, this rule should be permissive rather than mandatory.

APPENDIX

FLORIDA RULES OF CIVIL PROCEDURE

RULE 1.200. PRETRIAL PROCEDURE

(a) [No change]

(b) Pretrial Conference. After the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine:

(1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
(4) the limitation of the number of expert witnesses; and
(5) the potential use of juror notebooks; and
(6) any matters permitted under subdivision (a) of this rule.
(c)-(d) [No change]
Committee Notes
[No change]
Court Commentary
[No change]

RULE 1.452, QUESTIONS BY JURORS

(a) Questions Permitted. The court shall permit jurors to submit to the court written questions directed to witnesses or to the court. Such questions will be submitted after all counsel have concluded their questioning of a witness.

(b) Procedure. Any juror who has a question directed to the witness or the court shall prepare an unsigned, written question and give the question to the bailiff, who will give the question to the judge.

(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question.

RULE 1.455. JUROR NOTEBOOKS

In its discretion, the court may authorize documents and exhibits to be included in notebooks for use by the jurors during trial to aid them in performing their duties.

RULE 1.470. EXCEPTIONS UNNECESSARY; JURY INSTRUCTIONS

(a) [No change]

(b) Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court chargeinstruct the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the chargesinstructions to be given. At such conference, all objections shall be made and ruled upon and the court shall inform counsel of such char-gesinstructions as it will give. No party may assign as error the giving of any chargeinstruction unless that party objects thereto at such time, or the failure to give any chargein-struction unless that party requested the same. The court shall orally charge instruct the jury before or after the arguments aro completed and, — when-practica-bler shall furnish a copy of-its-eh-arges- to the juryof counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. The court shall provide each juror with a written set of the instructions for his or her use in deliberations. The court shall file a copy of such instructions.

(c) [No change]

Committee Notes

1988 Amendment. The word “general” in the third sentence of subdivision (b) was deleted to require the court to specifically inform counsel of the changescharges it intends to give. The last sentence of that subdivision was amended to encourage judges to furnish written copies of their charges to juries.

FLORIDA RULES OF JUDICIAL ADMINISTRATION

RULE 2.256. JUROR TIME MANAGEMENT

(a) Optimum Use. The services of prospective jurors should be employed so as to achieve optimum use with a minimum of inconvenience to jurors.

(b) Minimum Number. A minimally sufficient number of jurors needed to accommodate trial activity should be determined. This information and appropriate management techniques should be used to adjust both the number of individuals summoned for jury duty and the number assigned to jury panels, consistent with any administrative orders issued by the Chief Justice.

(c) Courtroom Assignment. Each prospective juror who has reported to the courthouse should be assigned a courtroom for voir dire before any prospective juror is assigned a second time.

(d) Calendar Coordination. Jury management and calendar management should be coordinated to make effective use of jurors.

RULE 2.430. RETENTION OF COURT RECORDS

(a)-(lc) [No change]

(¿) Destruction of Jury Notes. At the conclusion of the trial and promptly following discharge of the jury, the court shall collect all juror notes and immediately destroy the juror notes.

FLORIDA RULES OF CRIMINAL PROCEDURE

RULE 3.371. JUROR QUESTIONS OF WITNESSES

(a) Judicial Discretion. At the discretion of the presiding trial judge, jurors may be allowed to submit questions of witnesses during the trial-

lb) Procedure. The trial judge shall utilize the following procedure if a juror indicates that the juror wishes to ask a question:

(1) the questions must be submitted in writing;

(2) the trial judge shall review the question outside the presence of the jury;

(3) counsel shall have an opportunity to object to the question outside the presence of the jury;

(4) counsel shall be allowed to ask follow up questions; and

(5) the jury must be advised that if a question submitted by a juror is not allowed for any reason, the .juror must not discuss it with the other jurors and must not hold it against either party.

RULE 3.372. JUROR NOTEBOOKS

In its discretion, the court may authorize documents and exhibits to be included in notebooks for use by the .jurors during trial to aid them in performing their duties.

RULE 3.390. JURY INSTRUCTIONS

(a) Subject of Instructions. The presiding judge shall charge instruct the jury only on the law of the case at the conclusion-of before or after the argument of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. Except in capital cases, the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial.

(b) Form of Instructions. EveryThe charge instruction to a jury shall be orally delivered,- and charges in - capital.cases shall, and'in-the-discretion of the court in noncapital cases may, also be in writing. All written charges instructions shall also be filed in the cause. Ghai-ges-in other than--capital cases shall.be taken by the court ■ reporter and, if the jury- returns-a-verdict of guilty, transcribed-by-the-eea-rt reporter-a-nd-filed-in the cause.-

(c)-(e) [No change]

Committee Notes

[No change]

RULE 3.400. MATERIALS TO THE JURY ROOM

(a) Discretionary Materials. The court may permit the jury, upon retiring for deliberation, to take to the jury room:

(1) a copy of the charges against the defendant;

(2) forms of verdict approved by the court, after being first submitted to counsel;

(3) in noncapital ■ cases, any instructions ■giv&Hy4>ut if any instruction-is-takemali-the instructions-shall--be-take-n;

44) all things received in evidence other than depositions. If the thing received in evidence is a public record or a private document which, in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original.

(b) Mandatory Materials. In capital cases, tThe court must provide the jury, upon retiring for deliberation, with a written copy of allthe instructions given to take to the jury room.

Committee Notes

[No change]

RULE 3.9855. JUROR VOIR DIRE QUESTIONNAIRE

JUROR VOIR DIRE QUESTIONNAIRE
1. Name and date of birth_
2. Whal city, town or area of the county do you live in? Zip code_
3. Years of residence: In Florida_
In this county_
4. Former residence_
6.Marital status (married, single, divorced, widow, or widower)
6. Your occupation and employer_
7.If you are not now employed, give your last occupation and employer
8.If married, name and occupation of spouse
9.Have you ever served as a .juror before? yes_ no_
If yes, civil_ criminal_
Did the .jury reach a verdict? yes_ no_
Were you the foreperson? yes_ no_ ,
10.If you have children, give the age, sex and occupation of those children
11. Are you either a close friend or relative of any law enforcement officer?_
12. Have you, a close friend, or family member been the victim of a crime?_
13. Have you, a close friend, or family member been arrested or accused of a crime?

FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES

1.8

NOTE-TAKING BY JURORS

Or. — Note-taking permitted

If you would like to take notes during the trial, you may do so. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you individually.

You will be provided with a note pad and a pen for use if you wish to take notes. Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom. During recesses, the bailiff will take possession of your notes and will return them to you when we reconvene. After you have completed your deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will ever read your notes.

If you take notes, do not get so involved in note-taking that you become distracted from the proceedings. Your notes should be used only as aids to your memory.

Whether or not you take notes, you should rely on your memory of the evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than each juror’s memory of the evidence.

NOTES ON USE

L — I-t-is-within -the- court’s discretion to allow--the jurors to take notes. — Kettey-v-State, 486-So-.2d-578-(FIail986). — If note-taking is allowed, tThe court should furnish all jurors with the necessary pads and pens for taking notes. Additionally, it may be desirable for jurors to be furnished with envelopes to place the notes in for additional privacy.

⅛ — N ote-taking-permitted, 1.8a;--should be given as part-of preliminary instructions when the judge has dec-idecf-te allow jurors to take notes.

& — Note-taking not permitted.■

A question has- arisen as--to-^whether jurors may take notes. You are-instructed ■not to take-aotefe — One of the reasons for having several persons on the-ju-i-y is to gain the advantage — of your — individual memories concerning the evidence: — A juror engrossed in-note-taking may miss evidence or fail to appreciate the- demeanor of a- witness, — Additionally, there-may be-a tendency for jurors to rely on-others’ notes and be -less attentive during-the-trial or-during deliberations to-abandon-their recollections of the evidence in favor-of the written-notes of another.

NOTES ON USE OF- D8b

Note-taldng-not-permitted, 1.8b, may be given at any-time during the trial the question-is raised or as part of the-preliminary instructionsr

1.13

QUESTIONS BY JURORS

During the trial, you may have a question you think should be asked of a witness. If so, there is a procedure by which you may request that I ask the witness a question. After all the attorneys have completed their questioning of the witness, you should raise your hand if you have a question. I will then give you sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will pass it to me. You must not show your question to anyone or discuss it with anyone.

I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence that control the attorneys’ questions. If I decide that the question may not be asked under our rules of evidence, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may then ask follow-up questions if they wish. If there are additional questions from jurors, we will follow the same procedure again.

By providing this procedure, I do not mean to suggest that you must or should submit written questions for witnesses. In most cases, the lawyers will have asked the necessary questions.

2.1

INTRODUCTORY INSTRUCTION

Members of the jury, I shall now instruct you on the law that you must follow in reaching your verdict[s]. It is your duty as jurors to decide the issues, and only those issues, that I submit for determination by your verdict. In reaching your verdict, you should consider and weigh the evidence, decide the disputed issues of fact, and apply the law on which I shall instruct you, to facts as you find them from the evidence.

The evidence in this case consists of the sworn testimony of the witnesses, all exhibits received in evidence, [and] all facts that may be admitted or agreed to by the parties [, and any fact of which the court has taken judicial notice (explain as necessary)].

In determining the facts, you may draw reasonable inferences from the evidence. You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts shown by the evidence in this case. But you should not speculate on any matters outside the evidence.

NOTE ON USE

Each juror should be provided with a full set of jury instructions for use during their deliberations. The trial .judge may find it useful to provide these instructions to the .jurors when the .judge reads the instructions in open court so that jurors can read along with the judge, as the judge read the instructions aloud.

7.1

PREJUDICE AND SYMPATHY JUDGE NOT INVOLVED

In reaching your verdictfs], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdictfs] must be based on the evidence that has been received and the law on which I have instructed you.

Reaching a verdict is exclusively your job. I cannot participate in that decision in any way. You should not speculate about how I might evaluate the testimony of any witness or any other evidence in this ease; and you should not think that I prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that I have said or done, except for my specific instructions to you.

NOTE ON USE

When final instructions are read to the jury before the attorneys’ closing arguments, this instruction should not be given at that time. It should be given following closing arguments, just before the jury retires to deliberate.

7.2

USE OF NOTES DURING DELIBERATIONS; ELECTION OF FOREMAN; VERDICT FORMS

Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. For this reason, you should not be unduly influenced by anyone’s notes, including your own, and you should not give greater weight to a particular piece of evidence or testimony merely because it is mentioned in a juror’s notes.

Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial. You should consider the recollections of other jurors, but you need not abandon your own recollection of the evidence and testimony merely because your recollection differs from the written notes of another juror. At the conclusion of the trial, the bailiff will collect all of your notes and immediately destroy them. No one will ever read your notes.

When you retire to the jury room, you should select one of your number to act as foreman [or forewoman-lthe foreperson to preside over your deliberations and sign your verdictfs]. Your verdictfs] must be unanimous, that is, your verdictfs] must be agreed to by each of you.

You will be given (state the number) forms of verdict, which I shall now read to you:

[If you find for the plaintifffs], your verdict will be in the following form: (read form of verdict).]

[If you find for the defendants], your verdict will be in the following form: (read form of verdict).]

When you have agreed on your verdicts], the foreman ■ -[or- -forewomanjfore-person, acting for the jury, should date and sign the appropriate form[s] of verdict.

If any of you need to communicate with me for any reason, write me a note and give it to the bailiff. In your note, do not disclose any vote or split or the reason for the communication.

You may now retire to consider your verdiet[s].

NOTES ON USE

L_Because there seems to be no uniform practice among the circuits whereby exhibits are delivered to the jury when it retires to consider the verdict, the committee makes no recommendation on that subject. The committee does recommend, however, that the court at least inform the jury at the time that the exhibits are available for inspection by the jury.

2, When final instructions are read to the jury before the attorneys’ closing arguments, this instruction should not be given at that time. It should be given following closing arguments, just before the jury retires to deliberate.

COMMENT

Quotient verdict The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.”

7.3(a)

ANSWERS TO JUROR INQUIRIES DURING DELIBERATIONS

Members of the jury, I have discussed your [note][question] with the attorneys. You have [asked the following question][made the following request]:

(read juror’s note)

If I have not read your [note][question] correctly, please raise your hand.

(clarify question as needed)

1. The answer is:

(respond to question)

OR

2. I am not able to [answer][respond to] this [question][request] because it [calls for information that is not in evidence][is not proper to be considered in this case] (other reason why question or request is improper). Your decision must be based only on the evidence presented in the trial and the law that I have given you. [If you have any other specific questions, please send another note, and I will see if I can answer it.] (other appropriate response)

NOTES ON USE OF 7.3(a)

1. The procedure contained in 7.3(a) assumes that a juror question or request will be in writing. Oral questions from jurors are discouraged.

2. In responding to a juror’s question or request, the court should answer as specifically as possible. To avoid inadvertent error, it is a good practice to prepare a written answer with the assistance of the attorneys and then read this answer to the jury.

3. All written questions and answers should be preserved and placed in the court file.

7.3(b)

READ-BACK OF TESTIMONY

1. Read-Back granted as requested

Members of the jury, you have asked that the following testimony be read back to you: (describe testimony)

The court reporter will now read the testimony which you have requested.

OR

2. Read-Back Deferred

Members of the jury, I have discussed with the attorneys your request to have certain testimony read back to you. It will take approximately (amount of time) to have the court reporter prepare and read back the requested testimony.

I now direct you to return to the jury room and discuss your request further. If you are not able to resolve your question about the requested testimony by relying on your collective memory, then you should write down as specific a description as possible of the part of the witness(es)’ testimony which you want to hear again. Make your request for reading back testimony as specific as possible.

3. Read-Back Denied

Members of the jury, you have asked that the following; testimony be read back to you: (describe testimony)

I am not able to grant your request.

NOTE ON USE

Any read-back of testimony should take place in open court. Transcripts or tapes of testimony should not be sent back to the jury room.

FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES

L6

NOTE-TAKING BY JURORS

If you would like to take notes during the trial, you may do so. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you individually.

You will be provided with a note pad and a pen for use if you wish to take notes. Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom. During recesses, the bailiff will take possession of your notes and will return them to you when we reconvene. Alter you have completed your deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will ever read your notes.

If you take notes, do not get so involved in note-taking that you become distracted from the proceedings. Your notes should be used only as aids to your memory.

Whether or not you take notes, you should rely on your memory of the evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than each juror’s memory of the evidence.

NOTE ON USE

The court should furnish all jurors with the necessary pads and pens for taking notes. Additionally, it may be desirable for jurors to be furnished with envelopes to place the notes in for additional privacy.

2,13

QUESTIONS BY JURORS

To be given if a juror(s) indicates that the juror wishes to ask a question:

A juror has indicated that the juror wishes to ask a question of the witness. After the attorneys have completed their questioning of the witness, I will give sufficient time for the juror to write the question on the paper which you have been provided, fold it and give it to the bailiff, who will pass it to me. Please do not show your question to anyone or discuss it with anyone.

I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence and procedure that control the attorneys’ questions. If I decide that a question may not be asked under our rules of evidence or procedure, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may ask follow-up questions.

4.2

INSTRUCTION UPON DISCHARGE OF JURY

Ladies and gentlemen, I wish to thank you for your time and consideration of this case.

I also wish to advise you of some very special privileges enjoyed by jurors.

No juror can ever be required to talk about the discussions that occurred in the jury room, except by court order. For many centuries, our society has relied upon juries for consideration of difficult cases. We have recognized for hundreds of years that a jury’s deliberations, discussions, and votes should remain their private affair as long as they wish it. Therefore, the law gives you a unique privilege not to speak about the jury’s work.

Although you are at liberty to speak with anyone about your deliberations, you are also at liberty to refuse to speak to anyone. A request to discuss either your verdict or your deliberations may come from those who are simply curious, or from those who might seek to find fault with you, from the media, from the attorneys, or elsewhere. It will be up to you to decide whether to preserve your privacy as a juror.

Upon the completion of the reading of this instruction, the jury should he discharged and no further discussion should be had at that time between the judge and the jurors or between the attorneys and jurors unless some question of irregularity in the jury procedures arises at that point. Fla.R.Crim.P. 3.4-51.

Comment

This instruction was adopted in 1981.

43

ANSWERS TO JUROR INQUIRIES DURING DELIBERATIONS

Members of the jury, I have discussed your [note] [question] with the attorneys. You have [asked the following question][made the following request]:

(read juror’s note)

If I have not read your [note] [question] correctly, please raise your hand.

(clarify question as needed)

1. The answer is:

(respond to question)

OR

2. I am not able to [answer] [respond to] this [question][request] because it [calls for information that is not in evidence][is not proper to be considered in this case] (other reason why question or request is improper). Your decision must be based only on the evidence presented in the trial and the law that I have given you. [If you 1 have any other specific questions, please' send another note, and I will see if I can answer it.] (other appropriate response)

NOTES ON USE OF 4.3

1. The procedure contained in 4.3 assumes that a juror question or request will be in writing. Oral questions from jurors are discouraged.

2. In responding to a juror’s question or request, the court should answer as specifically as possible. To avoid inadvertent error, it is a good practice to prepare a written answer with the assistance of the attorneys and then read this answer to the fe

3. All written questions and answers should be preserved and placed in the court file.

44

READ-BACK OF TESTIMONY

1. Read-Back granted as requested

Members of the .jury, you have asked that the following; testimony be read back to you: (describe testimony)

The court reporter will now read the testimony which you have requested.

OR

2. Read-Back Deferred

Members of the jury, I have discussed with the attorneys your request to have certain testimony read back to you. It will take approximately (amount of time) to have the court reporter prepare and read back the requested testimony.

I now direct you to return to the jury room and discuss your request further. If you are not able to resolve your question about the requested testimony by relying on your collective memory, then you should write down as specific a description as possible of the part of the witness(es)’ testimony which you want to hear again. Make your request for reading back testimony as specific as possible.

3. Read-Back Denied

Members of the .jury, you have asked that the following testimony be read back to you: (describe testimony)

I am not able to grant your request.

NOTE ON USE

Any read-back of testimony should take place in open court. Transcripts or tapes of testimony should not be sent back to the jury room.

      . This recommendation refers to Standard 13 of the American Bar Association Standards Relating to Juror Use and Management (1993).

      . This is consistent with section 40.50(3), Florida Statutes (2006).

      . Current standard civil instruction 1.1 encourages this procedure.

      . On the subjects of written jury instructions and final instructions before closing arguments, we also authorize notes on the use of standard civil instructions 2.1, 7.1, and 7.2, as proposed by the Civil Jury Instructions Committee.

      . We also authorize the Civil Jury Instructions Committee’s recommendation that the last paragraph of standard civil instruction 7.2 be revised to provide: “If any of you need to communicate with me for any reason, write me a note and give it to the bailiff. In your note, do not disclose any vote or split or the reason for the communication.”

      . Unfortunately, Judge Shevin died before the work on this important report was completed by this Court. We do recognize his extraordinary dedication and service.


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.300.
    No. SC07-1255.
    Supreme Court of Florida.
    Oct. 18, 2007.
    Steven L. Brannock, Chair, Appellate Court Rules Committee, Holland and Knight, LLP, Tampa, FL; John Harkness, Executive Director, and Joanna A. Mauer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

In 2006, this Court adopted amendments to Florida Rule of Appellate Procedure 9.300, along with numerous other amendments to the appellate rules. See In re Amendments to the Florida Rules of Appellate Procedure, 941 So.2d 352 (Fla.2006) (.Amendments). Since adopting the amendments to rule 9.300 that deleted previous subdivision (d)(10), the Court has studied the effect of the amended rule on proceedings in this Court. We have jurisdiction, see art. V, 2(a), Fla. Const., and we hereby modify the rule.

As stated in Amendments, The Florida Bar’s Appellate Court Rules Committee had been informed that the requirements of rule 9.300(d)(10) placed an unnecessary administrative burden on litigants. Thus, the basis for the amendment appeared reasonable. However, since the rule was amended, the deletion of subdivision (d)(10) has created confusion and unexpected delays for litigants. Thus, the Court modifies the rule to reinstate subdivision (d)(10).

Accordingly, the Court amends Florida Rule of Appellate Procedure 9.300(d) as set forth in the appendix to this opinion. New language is indicated by underscoring. The amendments shall become effective at 12:01 a.m. on January 1, 2008.

However, because the amendment has not been published for comment, interested persons shall have until January 16, 2008, in which to file comments with the Court. An original and nine paper copies of all comments must be filed with the Court, with a certificate of service verifying that a copy has been served on Steven L. Brannock, Chair of the Appellate Rules Committee, Post Office Box 1288, Tampa, Florida 33601-1288, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Florida Bar has until February 5, 2008, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

It is so ordered.

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

APPENDIX

RULE 9.300. Motions

(a) [No change]

(b) [No change]

(c) [No change]

(d) Motions Not Tolling Time.

(l)-(9) [No change]

(10) All motions filed in the supreme court, unless accompanied by a separate request to toll time.

Committee Notes

[No change]


author: PER CURIAM. COPE, J.

text:
    PALM BEACH NEWSPAPERS, INC., d/b/a The Palm Beach Post, Appellant, v. Rush LIMBAUGH and Marta Miranda, Appellees.
    No. 3D05-1799.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2005.
    Opinion Denying Rehearing Oct. 3, 2007.
    Reeder & Reeder and L. Martin Reeder, for appellant.
    Caruana and Lorenzen and Dirk Loren-zen; Richman Greer Weil Brumbaugh Mirabito & Christensen and Bruce A. Christensen, for appellees.
   Upon consideration, petitioner’s motion for leave to reply to respondent Rush Limbaugh’s response to petitioner’s motion to strike or, alternatively, motion to supplement motion to strike is hereby denied.

Petitioner’s motion to strike is hereby denied. Upon consideration of the petition for review and the response thereto, it is ordered that said petition is hereby denied.

COPE, C.J., and SUAREZ and CORTIÑAS, JJ., concur.

Upon consideration of respondent Rush Limbaugh’s motion for attorney’s fees and respondent Marta Miranda’s motion for attorney’s fees and costs, it is ordered that said motions are hereby denied.

COPE, C.J., and SUAREZ and CORTIÑAS, JJ., concur.

Before COPE, SUAREZ and CORTIÑAS, JJ.

ON MOTION FOR REHEARING AND CERTIFICATION

PER CURIAM.

Denied. See Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 840 N.E.2d 1150 (2005).

SUAREZ and CORTIÑAS, JJ., concur.

COPE, J.

(dissenting from the denial of a motion for rehearing and certification of question).

Two questions are presented by this case. First, does a marital settlement agreement become a public record when the trial judge reviews it, initials it, and makes findings about it during a dissolution of marriage proceeding, even though it is handed back to the parties and never filed of record? The answer to that question is yes, unless the husband and wife can demonstrate the existence of an applicable exemption to the public records constitutional provision. See Art. I, § 24(a), Fla. Const.

Second, in the situation just described, what is the correct procedure for the press or a member of the public to obtain access to the marital settlement agreement? The prevailing view is that such a document may be requested by filing a motion in the matrimonial case, and requesting leave to intervene for that purpose. We should grant rehearing and certification.

I. Procedural Background

Rush Limbaugh, the husband, and Marta Miranda, the wife, decided to dissolve their marriage. With the advice of their respective counsel, they signed a twenty-two-page marital settlement agreement.

The husband filed a petition for dissolution of marriage in the Circuit Court for Monroe County in Key West on December 21, 2004. The petition stated that there were no minor children of the marriage and that the parties had agreed, through counsel, to a division of their property. The wife, Marta Miranda, simultaneously filed her answer, admitted the allegations of the petition and asked only that her family name be restored.

The same day the trial court held a hearing on the petition, during which it read the marital settlement agreement and initialed each page of the document. It then returned the marital settlement agreement to the parties. The final judgment of dissolution of marriage incorporated the agreement by reference and noted that:

In the interest of privacy for the parties, the Court is not requiring the Marital Settlement Agreement to be filed in the public court file. The Court has placed its mark on each page so that the authenticity of the Agreement, including each page thereof, can be determined in any subsequent proceeding that may be necessary.

The final judgment was recorded on December 23, 2004. The court granted the parties’ ore tenus motion to seal the file.

The dissolution of marriage was reported in the press in January 2005. The stories noted that the terms of the settlement were not disclosed.

On March 15, Palm Beach Newspapers, Inc. (“The Palm Beach Post” or “The Post”), filed a- motion to unseal the court file. This motion was filed in the dissolution of marriage case file. The former husband and former wife informed the court that they had no objection, and the court file was unsealed on March 18.

When The Post discovered that the marital settlement agreement was not in the court file, it filed a “Motion for Order Requiring Marital Settlement Agreement to be Filed with the Clerk and Recorded in the Official Records.” The Post asked the court to direct the former husband and former wife to file the marital settlement agreement in the public court file.

The trial court conducted a hearing and granted The Post’s ore tenus motion to intervene for purposes of the motion. On the merits, the court expressed doubt about whether it had jurisdiction to order the requested relief. The court then said, “[t]o avoid piecemeal appeals, the Court reaches the merits of the motion without deciding whether it has subject matter jurisdiction!.] ... The Marital Settlement Agreement is not a Court record as defined by the Rules and applicable case law[.]” Accordingly, the trial court denied relief.

The Post filed in this court a petition for review of the trial court’s order. See Fla. R.App. P. 9.100(d). This court denied the petition by unpublished order.

The Post filed a motion for rehearing, rehearing en banc, and certification of a question of great public importance. In the motion The Post requested issuance of a written opinion. The majority has denied the motion on the authority of Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 840 N.E.2d 1150 (2005).

I believe the motion for rehearing is well taken and we should grant it.

II. The Marital Settlement Agreement is a Public Record

When The Post’s petition for review was originally submitted to our panel, I voted to deny it because I agreed with the trial judge’s conclusion that the marital settlement agreement was not a public record. It seemed to me that so long as the agreement had not been filed by the parties in the court file, it followed that the agreement was not a public document. See Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987). On revisiting the issue in light of the motion for rehearing, however, I am now convinced that my earlier conclusion was in error.

Controlling here is the plain language of Florida’s constitutional right of access to public records. Under Article I, Section 24, a public record is one which is “made or received in connection with the official business of any public ... officer ... of the state,” unless the record has been exempted from public disclosure by statute or another constitutional provision. Id. (emphasis added); Ait. I, § 24(a), Fla. Const. This constitutional provision specifically applies to the judicial branch, id., and is self-executing. Id. at Art. I, § 24(e). Turning now to the facts of this case, there was a hearing in the trial court on the petition for dissolution of marriage. At that time, the parties handed the trial judge the marital settlement agreement. The judge reviewed it and “received testimony that the Marital Settlement Agreement was negotiated between the parties, through counsel, and was entered into freely, voluntarily and without duress.” The court placed a mark on each page and returned the document to the parties.

The conclusion is inescapable that the marital settlement agreement is a judicial record. The trial judge received it, reviewed it, initialed it, and made findings about it in the hearing on the petition for dissolution of marriage. The agreement was received by the judge in connection with the official business of the court, and is therefore a judicial record. See id. Art. I, § 24(a), Fla. Const.; see also Media Gen. Convergence, Inc. v. Chief Judge, 840 So.2d 1008, 1016 (Fla.2003) (documents received by chief judge in connection with court business are judicial records subject to public disclosure unless there is an applicable exemption from disclosure); cf. State v. City of Clearwater, 863 So.2d 149, 155 (Fla.2003) (personal e-mails on government computers are not public records); Smithwick v. Television 12, 730 So.2d 795, 798 (Fla. 1st DCA 1999) (where trial court erroneously allowed discovery documents to be removed from court file, the documents must be returned to the file); Tober v. Sanchez, 417 So.2d 1053, 1054-55 (Fla. 3d DCA 1982) (where records custodian transferred records to county attorney and refused to comply with public records request, the records must be returned to the custodian and produced).

The former husband and former wife argue that the true test is whether the parties themselves filed the marital settlement agreement in the court file. They maintain that the decision in Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987), is dispositive. While I originally accepted that argument, I am now convinced that Burk is inapplicable here.

In Burk, the press sought to attend pretrial discovery depositions in a criminal case. The press also wished to obtain copies of depositions which had not been transcribed or filed with the court. The press argued that depositions are compelled by judicial process and therefore depositions should be viewed as judicial proceedings. The Florida Supreme Court rejected that argument and held that discovery depositions would become public when filed in the court file. Id. at 384.

The important point for present purposes is the Bwrk court’s reasoning. The &rt court explained that discovery depositions are not “judicial proceedings ‘for the simple reason that there is no judge present and no rulings nor adjudications of any sort are made by any judicial authority.’ ” Id. (emphasis added). In the present case, by contrast, a judge was present and made adjudications. The Burk decision does not apply here.

III. Possible Exemption

As the marital settlement agreement is a judicial record, the next question is whether it is exempt from disclosure. See Art. I, § 24(a), Fla. Const.; Media Gen. Convergence, 840 So.2d at 1016-20.

The trial court did not reach the question of a possible exemption from public disclosure because the trial court had concluded that the unfiled marital settlement agreement was not a judicial record. The correct procedure, therefore, is to remand and allow the former husband and former wife the opportunity to argue that the marital settlement agreement should be exempt from public disclosure under Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla.1988) (listing criteria for closure of court proceedings or records), and Florida Rule of Judicial Administration 2.420(c)(9).

IV. Jurisdiction

The former husband and former wife argued below, and here, that the trial court did not have jurisdiction to consider The Post’s motion to require the parties to file the marital settlement agreement. They point out the judgment contains a paragraph directing that the marital settlement agreement would not be filed in the public record. When The Post filed its motion, it was three months after the entry of judgment dissolving the marriage. By then the appeal time had expired and the judgment had become final. The only reservation of jurisdiction was for enforcement of the marital settlement agreement.

The former husband and former wife maintain that the trial court had no jurisdiction to disturb the final judgment. They argue that The Post demonstrated no ground for relief from judgment under Family Law Rule 12.540. In my view, these jurisdictional arguments are without merit.

We deal here with the Florida constitutional right of public access to public records. Not only does the constitution guarantee public access, but the constitutional provision is self-executing. Art. I, § 24(c), Fla. Const. A self-executing constitutional provision is one which requires “no legislative action to put its terms into operation .... ” 10 Fla. Jur.2d Constitutional Laiv § 57, at 516 (2003) (footnote omitted). That means the courts may enforce the right by any appropriate procedure.

There is ample precedent for the proposition that the trial court has jurisdiction to entertain a motion for public access to judicial records even if the case is closed. In Friend v. Friend, 866 So.2d 116, 117 (Fla. 3d DCA 2004), this court allowed exactly the same procedure that The Post is requesting in the present case. In Friend, this court affirmed a trial court order which allowed a nonparty to intervene for the limited purpose of unsealing the court file in a dissolution action which had concluded five years previously. Id. at 117. This court said, “The denial of access to dissolution of marriage proceedings may not be based solely on the wishes of parties to the litigation.” Id. Stated differently, the parties cannot bargain away the public’s right of access to public records. The Friend court granted relief even though the file had been closed for five years.

There is a “growing consensus among the [federal] courts of appeals that intervention to challenge confidentiality orders may take place long after a case has terminated.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 779 (3d Cir.1994) (citation omitted). In Pansy, a civil rights action was dismissed with prejudice pursuant to a settlement agreement, but the settlement agreement was not filed with the trial court. The trial court entered a confidentiality order. Six months later, several newspapers filed a motion to intervene in the case which had been dismissed, seeking to compel the production of the unfiled settlement agreement, or to vacate the confidentiality order. The trial court denied the motion because the case had been concluded for six months. Id. at 777-78.

The Third Circuit reversed, holding that the trial court can consider such a request notwithstanding that the request was made long after the case had been terminated. Id. at 779. The court noted that a request for access to judicial records does not disturb the interest of the litigants in the finality of the underlying judgment, because the requesting party “sought to litigate only the issue of the protective order, and not to reopen the merits.... ” Id. at 780 (citation and internal quotation marks omitted).

The Third Circuit noted that:

in cases dealing with access to information, the public and third parties may often have no way of knowing at the time a confidentiality order is granted what relevance the settling case has to their interests. Therefore, to preclude third parties from challenging a confidentiality order once a case has been settled would often make it impossible for third parties to have them day in court to contest the scope or need for confidentiality.

Id.

More recent decisions of other courts have acknowledged the growing consensus that intervention to challenge confidentiality orders may take place long after a case has terminated. See Equal Employment Opportunity Comm’n v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1047 (D.C.Cir.1998) (citing growing consensus; granting relief after delay of two years); In re Linerboard Antitrust Litig., 333 F.Supp.2d 333, 339 (E.D.Pa.2004) (citing growing consensus; granting relief after delay of six months); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 884 A.2d 981, 1015 (2005) (citing growing consensus; granting relief after delay of one year).

Early in this litigation, the former husband and former wife de facto acknowledged that the trial court had jurisdiction. As already explained, the judgment and sealing order were entered at the end of December 2004. It was not until March 2005 that The Post filed its motion to unseal the file-which it filed in the court file in the matrimonial action. The former husband and former wife consented to the entry of the unsealing order. If the trial court loses all jurisdiction upon the judgment becoming final, then logically this case file never could have been unsealed. But in reality the court did have jurisdiction to unseal the file.

The majority has denied relief on authority of Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 840 N.E.2d 1150 (2005). Respectfully, that case hinges on Ohio’s statutory limitations on the jurisdiction of the domestic relations court and Ohio rules that do not allow for intervention in divorce cases. Id. at 1154. The Ohio Court of Appeals concluded that there was no Ohio procedural vehicle by which the Cincinnati Enquirer could make a request for public records within the underlying divorce case. The court ruled that the newspaper would have to file a separate mandamus action.

Florida does not suffer thq procedural limitations described by the Ohio court. Florida and federal courts entertain such requests notwithstanding that the case file is closed. And, since Article I, Section 24, is self-executing, the courts have both the power and the duty to entertain such requests.

V. Relief from Judgment

The procedure followed by The Post in this case can also be viewed as a proper motion for relief from judgment under Florida Family Law Rule 12.540 and Florida Rule of Civil Procedure 1.540(b)(4).

The former husband and former wife were parties to, and are bound by, the final judgment. The Post was not a party, and had no notice or opportunity to be heard regarding that part of the judgment which returned the marital settlement agreement to the parties.

As to The Post, the portion of the judgment which returned the marital settlement agreement to the parties is void. That is so because a judgment entered without notice is void. See Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988), and cases cited therein. Relief from a void judgment may be granted at any time. Id.

In this case, The Post’s motion sought relief from that part of the matrimonial judgment stating, “In the interest of privacy for the parties, the Court is not requiring the Marital Settlement Agreement to be filed in the public court file.” This is a proper subject for a motion under Florida Family Law Rule 12.540 and Rule of Civil Procedure 1.540(b)(4).

In sum, The Post’s motion and request for intervention were proper under Article I, Section 24, and the court’s inherent powers as explained in Section IV of this opinion. The motion and request for intervention were also proper under Florida Family Law Rule 12.540 and FI. R. Civil Procedure 1.540(b)(4), as explained in this Section of the opinion.

VI. Conclusion

While sympathetic to the desire of the former husband and former wife for financial privacy, I am convinced that the foregoing analysis is compelled by Article I, Section 24, of the Florida Constitution.

The Post followed the correct procedure in filing both of its requests — the motion to unseal the file (which was granted) and its request for access to judicial records (which was denied) — in the dissolution of marriage ease. The trial court had jurisdiction to consider both motions.

On the merits, the marital settlement agreement is a judicial record and must be disclosed unless there is an applicable exemption. We should remand with leave for the former husband and former wife to make such arguments as they may have that the file should be sealed under Barron, 531 So.2d at 118, and Florida Rule of Judicial Administration 2.420(c)(9).

      . Article I, Section 24 was adopted in 1992 and amended in 2002. It states, in part:
      (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this Section or specifically made confidential by this Constitution. This Section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to this Constitution.

      (c) This Section shall be self-executing.

      . Allowing the press or public to proceed by motion in the ori¿inal case is much more expeditious than requiring the filing of a new action.

      . I would also grant the motion for certification of a question of great public importance, and the motion for issuance of a written opinion.


author: ROTHENBERG, Judge. SHEPHERD, J.,

text:
    COHEN FINANCIAL, LP, a Delaware Limited Partnership, and CFC Transactions Limited Partnership, an Illinois Limited Partnership, Appellants, v. KMC/EC II, LLC, a Delaware Limited Liability Corporation, Appellee.
    No. 3D07-277.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Rehearing and Rehearing En Banc Denied Nov. 8, 2007.

      Ronald P. Weil, Miami, and Rachel A. Camber, Coral Gables, for appellants.
    Becker & Poliakoff and Gary C. Rosen and Kevin Markow, Fort Lauderdale, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiffs, Cohen Financial, LP, and CFC Transactions Limited Partnership (collectively referred to as “Cohen Financial”), appeal a non-final order denying their request for a temporary injunction. We affirm.

In February 2006, Cohen Financial and KMC/EC II, LLC (“KMC”) entered into an agreement whereby Cohen Financial was to act as KMC’s exclusive mortgage broker for a thirty-day period to obtain financing for the acquisition and development of a certain real estate project (“February Agreement”). Pursuant to the February Agreement, within three business days of the agreement’s execution, Cohen Financial was required to provide KMC with a list of lenders it intended to market the project to, and upon termination of the February Agreement, Cohen Financial was to provide KMC with a list of lenders that it had actually marketed the project to. Further, the February Agreement provides that Cohen Financial “shall be paid a fee in the amount equal to one percent (1%) of the total committed amount of debt to be funded by lender.... ”

In June 2006, the parties entered into a subsequent agreement (“June Agreement”), which provides in part, “Notwithstanding anything to the contrary herein, all terms and provisions of the existing fee agreement referenced above [the February Agreement] are fully ratified and shall remain in full force, and extend to the date at which closing of the project takes place.”

Upon learning that KMC was ready to close on a loan and that KMC had made no provision to segregate funds in favor of Cohen Financial, Cohen Financial filed an amended verified complaint seeking a constructive trust over one percent of the loan amount and injunctive relief. In addition, Cohen Financial filed a claim for “specific performance,” requesting that one percent of the loan amount be held in trust. Following an emergency hearing, the trial court denied Cohen Financial’s request for a temporary injunction, concluding that, based on the allegations sworn to in Cohen Financial’s motion for injunctive relief and the arguments of the parties’ counsel, Cohen Financial failed to establish that it had a substantial likelihood of success on the merits and that it lacked an adequate remedy at law.

In reviewing a trial court’s ruling on a request for a temporary injunction, we must affirm unless the appellant establishes that the trial court committed a clear abuse of discretion. See Millennium Commc’ns & Fulfillment, Inc. v. Office of Attorney Gen., Dep’t of Legal Affairs, State, 761 So.2d 1256 (Fla. 3d DCA 2000); Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995)(“Generally speaking, the trial court may exercise broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, this court will not disturb the trial court’s decision.”); Sanchez v. Solomon, 508 So.2d 1264, 1265 (Fla. 3d DCA 1987)(“The trial court may exercise broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, this court will not disturb the trial court’s decision.”).

Cohen Financial contends that the trial court abused its discretion in concluding that it failed to establish that it had a substantial likelihood of success on the merits, relying primarily on this court’s decision in Riverland & Indian Sun L.C. v. L.J. Melody & Co., 879 So.2d 1271 (Fla. 3d DCA 2004). We, however, find River-land both distinguishable and inapplicable to the instant case.

In Riverland, after a real estate broker learned that a real estate transaction was going to close without notice to it, as required by the real estate brokerage agreement, the broker sought and obtained a temporary injunction that froze the amount of the claimed real estate commission in a constructive trust. The real estate brokerage agreement provided, in part, as follows: “In the event the Owner closes a sale of the Property in accordance with the terms herein, then it shall pay to the Broker a fee.... All fees will be paid by wire transfer out of sale proceeds by the closing as a line item on the closing statement.” Id. at 1271.

This court affirmed the trial court’s imposition of the temporary injunction, based on the following reasoning:

The brokerage agreement identified a particular fund to be set aside at the closing for the broker’s benefit. Only in the event the transaction closed was the broker to receive funds, and then only from proceeds paid by the purchaser. The broker was clearly a named beneficiary of a particular fund and, therefore, a constructive trust was alleged and the temporary injunction was proper.

Id. at 1272.

The facts in the instant case are quite different from the facts in Riverlcmd. In the instant case the brokerage agreement does not identify a “particular fund to be set aside at the closing for the broker’s benefit,” nor is Cohen Financial a “named beneficiary of a particular fund.”

More importantly, the allegations contained in Cohen Financial’s amended complaint and motion for injunction do not reflect that Cohen Financial complied with the February Agreement nor do they state a basis upon which Cohen Financial would be entitled to relief. The February Agreement provides that within three business days of the agreement’s execution, Cohen Financial was to submit a list of potential lenders to KMC, and at the expiration of the 30-day period, Cohen Financial was to submit a list of lenders it had actually marketed the project to. Cohen Financial’s amended complaint and motion for injunction do not assert that Cohen Financial complied with either of these requirements or that it was the procuring cause of the loan that KMC intends to obtain. We, therefore, conclude that the trial court did not abuse its discretion in finding that Cohen Financial failed to establish a substantial likelihood of success on the merits.

The dissent argues that the Riverlcmd brokerage agreement and the agreement in the instant case are essentially identical, thus mandating our reversal. With all due respect to the dissent, we disagree. The facts, the arguments raised by the parties, and the opposite procedural posture distinguish the two. Unlike Riverlcmd, Cohen Financial failed to state a basis upon which relief could be granted. The February Agreement set forth certain requirements. Cohen Financial’s amended complaint and motion for injunction failed to assert that Cohen Financial had complied with these obligations, and the uncontroverted evidence is that it did not. Cohen Financial failed to submit a list of its potential lenders or of the lenders it had actually marketed the project to, two material requirements of the agreement. It is based upon these facts that we conclude that the trial court did not abuse its discretion in finding that Cohen Financial had not met its burden in establishing a substantial likelihood of success on the merits and in denying the injunction. Furthermore, in River-land, there are none of the infirmities found herein. Instead, in Riverlcmd, the trial court granted injunctive relief and this court affirmed, finding no clear abuse of discretion. Therefore, based upon this court’s recognition of our standard of review, that a trial court’s order granting or denying a request to issue an injunction must be affirmed unless the appellant establishes a clear abuse of discretion, we affirm the trial court’s denial of injunctive relief in the instant case.

We also disagree with Cohen Financial’s assertion that the trial court abused its discretion in concluding that Cohen Financial had an adequate remedy at law. This dispute arises out of an alleged breach of a mortgage brokerage agreement in which Cohen Financial seeks monetary damages equal to one percent of the loan that KMC plans on obtaining in the near future. As Cohen Financial’s claim is basically an action at law for money damages, the trial court did not abuse its discretion in finding that Cohen Financial has an adequate remedy at law. See Airport Executive Towers v. CIG Realty, Inc., 716 So.2d 311, 312 (Fla. 3d DCA 1998)(reversing trial court’s order granting temporary injunction in breach of contract action where adequate remedy at law existed); Konover Realty Assocs., Ltd. v. Mladen, 511 So.2d 705, 706 (Fla. 3d DCA 1987)(“It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court, or indeed for any restraint upon the use of a defendant’s unrestricted assets prior to the entry of judgment. The rule has been specifically applied, as on general principles it must be, to an action like this one for the recovery of unsegregated earnest money, and is unequivocally not affected by the claim that recovery upon any subsequently-entered judgment may be made difficult by the dissipation or unreachability of the debtor’s assets.”) (citations and footnotes omitted); St Lawrence Co., N.V. v. Alkow Realty, Inc., 453 So.2d 514, 515 (Fla. 4th DCA 1984)(reversing trial court’s order imposing temporary injunction freezing real estate commission proceeds, holding that “[a]n action for a brokerage commission is an action at law. An action at law is not transformed to one in equity simply by requesting an injunction”) (citations omitted).

The dissent discusses Riverland’s failure to address whether any of the criteria for issuance of a temporary injunction was satisfied, and suggests that because the majority in Riverland failed to do so, so should we. We disagree, as the trial court made a finding that Cohen Financial had an adequate remedy at law and Cohen Financial appealed this finding. Thus, this court is compelled to address the issue and to recognize well-settled Florida law holding that a brokerage commission is an action in law, and that where the claim is one for money damages, injunction does not lie because there is an adequate remedy at law.

As we do not find that the trial court clearly abused its discretion in denying Cohen Financial’s motion for temporary injunction based on its findings that Cohen Financial failed to establish that it had a substantial likelihood of success on the merits and that it lacked an adequate remedy at law, we affirm the non-final order denying Cohen Financial’s motion for temporary injunction.

Affirmed.

WELLS, J., concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent. The only characteristic that differentiates this ease from our recent decision in Riverland & Indian Sun, L.C. v. L.J. Melody & Co., Inc., 879 So.2d 1271 (Fla. 3d DCA 2004), is that the real estate broker won below there and lost below here. Disguised in an idiom comfortable — a standard of review — -the true rule of law announced today is that on review of a non-final order disposing of a motion to enjoin from distribution a disputed brokerage fee due at closing in the ordinary commercial real estate transaction, we must henceforth affirm. Let me explain.

However much we try to contort them, the facts of this case are indistinguishable from those in Riverland. Each case involves a common, ordinary commercial real estate transaction. Cf. id. at 1272. Each calls for the payment of the brokerage fee, if earned, at closing:

The L.J. Melody Brokerage Agreement
“In the event the Owner closes a sale of the Property in accordance with the terms herein, then it shall pay to the Broker a feo....Ali fees will be paid by wire transfer out of sale proceeds by the closing as a line item on the closing statement.
The Cohen Financial Brokerage Agreement
“Broker shall be paid a fee in the amount equal to one percent (1%) of the total committed amount of debt to be funded by Lender at the sucessful closing of a new first mortgage on the Project...”

The parties disagree over whether the fee is due. The Amended Verified Complaint attaches both the February 2006 original retainer letter, and the June 2006 modification. As explained in the Amended Verified Complaint, the purpose of the latter was to memorialize the additional retention of Cohen Financial to find a joint-venture partner-guarantor for the project to meet the “[additional] requirements of the lending community to complete the financing so provided by Broker.” As stated by the majority, the June 2006 modification confirms that “all terms and provisions of the existing [February 2006] Agreement are fully ratified and shall remain in full force, and extend to the date at which closing of the Project takes place.”

Finally, the Amended Verified Complaint definitively alleges its contentions concerning the ways in which KMC breached its agreements with Cohen Financial:

21. COHEN complied with all of the terms and conditions of both the February 10 Agreement and the June 26 Amendment.
22. In reliance on what they understood to be an exclusive agreement, COHEN brought lenders with competitive terms for Consideration to KMC, who either rejected the proposed terms outright in the belief that better terms existed or refused to cooperate with a lender’s underwriting process, resulting in the lender terminating the loan process.
25. Additionally, as much of the information provided by the other broker was not accurate, COHEN received numerous telephone calls and requests from various lenders to address underwriting concerns. COHEN spent a substantial amount of time with each lender in an attempt to close a loan to KMC.
26. When COHEN confronted KMC regarding these contacts, KMC reassured COHEN that he was complying with the February 10 Agreement by disclosing COHEN’S involvement as the exclusive broker to other brokers and lenders.

Pressed by time constraints inherent in the proceeding, KMC did not have the opportunity to offer any counter-testimony.

It is not for us to judge whether the allegations made by Cohen Financial are correct. The question is only whether funds should be withheld from the closing pendent lite. The majority wraps its affir-mance of the trial court’s denial of Cohen Financial’s request for this relief in the franking of temporary injunctive relief. It holds that the trial court lawfully exercised its discretion not to sequester Cohen Financial’s fee because Cohen Financial has an adequate remedy at law, and did not demonstrate a likelihood of success of the merits. Of course, it mattered not in Riv-erland that the broker had an adequate remedy at law. See Riverland, 879 So.2d at 1273 (Shepherd, J., dissenting)(“[T]his case is no different than the numerous other cases in which this court has denied an injunction because an adequate remedy at law existed.”) (citations omitted). In fact, the Riverland majority expressed no concern over whether any of the criteria for the issuance of a temporary injunction were satisfied. See id. at 1271-72. It was sufficient that “[t]he brokerage agreement identified a particular fund to be set aside at the closing for the broker’s benefit.” Id. at 1272. We thus are reduced to a comparison of the language of the two-agreements. Unless the law rests upon the incantation of magic words, I can locate no difference between the Riverland brokerage agreement and the one which we parse here.

The majority’s desire to affirm the decision is exigent. It is my desire as well. However, as a panel of three, we are bound by the law we have, not the law we wish we had. In re Rule 9.331, Detemination of Causes by Dist. Court of Appeal En Banc, etc., 416 So.2d 1127, 1128 (Fla.1982)(“In fact, the suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.”). See also O’Brien v. State, 478 So.2d 497, 499 (Fla. 5th DCA 1985)(“[W]e adopt as a principle that a three-judge panel should not expressly overrule or recede from a prior decision of this court on the same point of law.”). If Riverland is our guide, the broker here is as much entitled to sequestration of his fee pendente lite as was the broker there. Because the only factual difference between the two cases is who initially prevailed in the trial court, I only can deduce that from today forward, the rule is that we affirm on review here any trial court decision concerning sequestration of a disputed commercial brokerage fee that was due to be paid out of closing proceeds.

      . To assure payment, Cohen Financial also negotiated a promise from KMC to "[be] provide[d] ... a copy of the closing statement prior to closing,'' as well as KMC's consent to "provide this engagement agreement to any lender, attorney, closing agent or related party to evidence fees earned due and payable.”

      . Elsewhere in the June 2006 modification, the February 2006 retainer similarly is referenced as "the existing Fee Agreement dated February 10, 2006” and the “current Fee Agreement.” There is no contrary proof.

      . Unlike the circumstance in Riverland, counsel for Cohen Financial commendably provided all of the notice that it could of its emergency proceeding. See Fla. R. Civ. P. 1.610(a)(1)(B).