author: McMILLAN, Presiding Judge. WISE, Judge

text:
    STATE v. Michael DEAN.
    CR-04-1418.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Rehearing Denied Feb. 24, 2006.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    Aimee C. Smith, Montgomery, for appel-lee.
   McMILLAN, Presiding Judge.

The State of Alabama appeals from the trial court’s order dismissing Count IV of a five-count indictment against Michael Dean. Count IV charged Dean with the murder of witness Patrick Flynn, made capital pursuant to § 13A-5-40(a)(14), Ala. Code 1975. In his motion to dismiss, Dean argued that Count IV failed to allege that Flynn was actually “under subpoena” at the time of the alleged murder. After an evidentiary hearing, the trial court granted Dean’s motion, finding that it was undisputed that the victim was never subpoenaed and that § 13A-5-40(a)(14) “unambiguously requires that the victim have testified or been subpoenaed.”

Count IV of the indictment charged Dean with shooting and killing Patrick Flynn while “an indictment in the criminal case of State of Alabama v. Michael Dean, case no. CC-2002-578, had been filed with the Clerk of Court, listing Patrick Flynn as a witness, thereby subjecting him to Service of Process each and every time subpoenas were issued by the Clerk of Court....” The indictment in Case No. CC-2002-578 has not been included in the record on appeal. We will examine the State’s claim based on the record that is before us.

Section 13A-5-40(a)(14), Ala.Code 1975, provides that murder under the following circumstances is a capital offense:

“Murder when the victim is subpoenaed, or has been subpoenaed, to testify, or the victim had testified, in any preliminary hearing, grand jury proceeding, criminal trial or criminal proceeding of whatever nature, or civil trial or civil proceeding of whatever nature, in any municipal, state, or federal court, when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness.”

(Emphasis added.)

The State contends that listing Patrick Flynn’s name as a witness satisfied the “has been subpoenaed” requirement of § 13A-5-40(a)(14) because the clerk of court was under a duty to issue a subpoena at the time of Flynn’s death. The State argues that the actual issuance and service of the subpoena were “mere formalities” or “ministerial duties” and that a narrow reading of the statute would frustrate the legislative purpose of deterring the murder of “projected” witnesses listed on the indictment. The State argues that in McCall v. State, 501 So.2d 496 (Ala.Crim.App.1986), this court “expressly rejected” the strictest construction of the “has been subpoenaed” requirement by permitting issuance, rather than actual service, to serve as the critical factor in determining compliance with § 13A-5-40(a)(14).

The State’s reliance on McCall is misplaced. In McCall, a subpoena was issued on May 1, 1983, by first-class mail, commanding the victim to appear in a murder trial set for May 23, 1983. The trial was reset for September 19, 1983, and the victim was killed before the subpoena was reissued. This court upheld the defendant’s indictment under § 13A-5-40(a)(14), stating, in pertinent part:

“The Court finds that the issuance of this subpoena for the aforesaid trial date meets the requirement of § 13A-5-40(a)(14) of the Code of Alabama that the victim ‘had been subpoenaed, to testify,’ in a criminal trial. Any other finding would thwart the plain meaning of the statute. Clearly, the victim had been subpoenaed to testify in said trial, and the postponement of said trial is of no relevance whatsoever to § 13A-5-40(a)(14). To read otherwise would be to hold that criminals could evade the plain intent of the legislature by murdering subpoenaed witnesses after a case was postponed and before any new subpoenas were issued. The intent of the legislature is to proscribe the intentional killing of subpoenaed witnesses at any time so long as the intentional killing ‘stems from, is caused by, or is related to’ the victim’s capacity as a witness.
“Similarly, the issuance of a subpoena without proof of actual service meets the statutory requirement of ‘has been subpoenaed.’ The Court finds that the ‘has been subpoenaed’ requirement was utilized by the legislature in order for there to be an objective criterion that the victim was, in fact, a witness, or to be a witness, and thereby to give adequate warning of the crime delineated. This requirement is reasonably met by subpoena issuance alone. Indeed, to hold otherwise, would be to thwart legislative intent by enabling criminals to murder witnesses prior to actual service of an issued subpoena.”

501 So.2d at 505. (Emphasis added.)

Limiting the application of § 13A-5-40(a)(14) to witnesses for whom a subpoena has actually been issued gives “fair import” to the language of the statute and “fair warning” of the conduct that is proscribed. Section 13A-1-6, Ala.Code 1975, provides that “[a]ll provisions of [the Alabama Criminal Code] shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in Section 13A-1-3.” The § 13A-1-6 Commentary explains that “[u]nder this section, not only must the alleged misconduct be covered by ‘the fair import’ of the Criminal Code provision, but also, under section 13A-1-3, the statute must be construed so that it gives ‘fair warning of the nature of the conduct proscribed and the punishment authorized upon conviction.’ ”

The State concedes that the plain meaning of the words in § 13A-5^40(a)(14) excludes the facts of the present case. However, the State urges this court to look beyond the words of the statute because to do otherwise would “merely place an arbitrary time limit on the killing of projected witnesses rather than act as a real deterrent.” The State argues, citing Ex parte Day, 378 So.2d 1159 (Ala.1979), that this court should not blindly follow the meaning of the words in a statute if such an interpretation would render the statute ineffectual.

The State’s reliance on Day is misplaced. In Day, the Alabama Supreme Court held that confidential communications between “psychiatrists” and patients were covered under the “psychologist” privilege of § 34-26-2, Ala.Code 1975, because psychologists were required to maintain intercommunication with psychiatrists, and any other interpretation would render the psychologist privilege valueless. Limiting the application of § 13A-5^40(a)(14) to witnesses for whom a subpoena has been issued does not render the statute ineffectual. This limitation instead sets an objective standard for determining when a potential or projected witness is, in fact, a witness. Without such a standard, the applicability of § 13A-5-40(a)(14) would be subject to speculation. See, for example, Gavin v. State, 891 So.2d 907, 933 n. 5 (Ala.Crim.App.2003), in which the defendant alleged that an indictment for capital murder should have been returned in a case similar to his because the victim in that case was “an informant.” This court rejected the argument because Gavin presented no evidence that the victim “had testified or had been subpoenaed to testify as required by § 13A-4-40(a)(14), Ala. Code 1975.” Id.

In Ex parte Jackson, 614 So.2d 405 (Ala.1993), the Alabama Supreme Court examined another death penalty provision, subsection (a)(17) of § 13A-5-40, to see if it applied to the facts of that case. After considering both the “clear statutory language” of the provision and the presumption that “the legislature knows the meaning of the words it uses in enacting legislation,” the Court concluded that the provision did not apply. We likewise presume that the legislature knew the meaning of the clear language it used in § 13A-5-40(a)(14). If the legislature had intended subsection (a)(14) to apply to projected witnesses, the legislature could have written the statute to include a victim who is “listed on the indictment to be subpoenaed” or who is “projected to be a witness.” “The judiciary will not add that which the Legislature chose to omit.” Jackson, 614 So.2d at 407. If the legislature disagrees with this interpretation of § 13A-5-40(a)(14), then it will enact appropriate legislation to modify the statute and yield a different result in subsequent cases.

For the foregoing reasons, the trial court’s order dismissing Count IV of the indictment hereby is affirmed.

AFFIRMED.

BASCHAB and SHAW, JJ., concur; WISE, J., concurs specially, with opinion, in which COBB, J., joins.

WISE, Judge

(concurring specially).

Patrick Flynn was killed because the State intended to call him to testify as a witness against Michael Dean. However, because he was killed before the circuit clerk had issued a subpoena for this purpose, I must reluctantly concur with the majority’s conclusion that the trial court correctly dismissed Count IV of Dean’s five-count indictment on the ground that listing the victim’s name as a witness did not satisfy the “has been subpoenaed” requirement of § 13A-5-40(a)(14), Ala.Code 1975.

Although the State urges us to look beyond the words in § 13A-5^40(a)(14) and hold that that section applies to the present fact situation, we are unable to do so, given the Alabama Supreme Court’s holding that “ ‘[sjtatutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used....’ ” Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (quoting United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127 (1936)). I believe, however, that the Alabama Legislature, in enacting § 13A-5^40(a)(14), intended to protect persons the State intended to call as witnesses by making the murder of those individuals a capital offense. Here, the victim’s name— Patrick Flynn — was listed on the indictment as one of the prosecution’s witnesses in Case No. CC-2002-578, thus notifying Dean of the identity of one of the individuals who would be testifying against him and placing that person in potential peril. Unfortunately, as currently written, because Dean allegedly killed Patrick Flynn before Flynn was formally subpoenaed to testily, he cannot be charged with the capital offense of murdering a witness who had been subpoenaed to testify against him. Certainly, the legislature did not intend such an illogical result. I, therefore, urge the legislature to amend § 13A-5 — 49(a)(14) so as to close the loophole created by the current language of that statute.

      . I do not mean to suggest the subpoena was not timely issued because of any fault of the circuit clerk. It simply appears that Flynn was killed before any court dates were set, which would trigger the issuance of a subpoena.


source: Caselaw Access Project

author: HARWOOD, Justice. SMITH, Justice PARKER, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Michael DEAN).
    1050707.
    Supreme Court of Alabama.
    April 28, 2006.
    Troy King, atty. gen., and Stephanie N. Morman and John M. Porter, asst, attys. gen., for petitioner.
    Submitted on petitioner’s brief only.
   HARWOOD, Justice.

WRIT DENIED. NO OPINION.

SEE, LYONS, and WOODALL, JJ., concur.

NABERS, C.J., and STUART, SMITH, BOLIN, and PARKER, JJ., concur specially.

SMITH, Justice

(concurring specially).

I concur to deny the petition for certio-rari review in this case. I write specially to express my concern regarding the language of Ala.Code 1975, § 13A-5-40(a)(14).

A more thorough explanation of the facts of this case can be found in the opinion of the Court of Criminal Appeals. See State v. Dean, 940 So.2d 1077 (Ala.Crim.App.2006). As that opinion notes, Michael Dean was charged with killing Patrick Flynn, who was to be a witness in a case against Dean but who had not yet been subpoenaed. Count IV of the indictment charged Dean with murder made capital under Ala.Code 1975, § 13A-5-40(a)(14), which makes capital murder under the following circumstances:

“Murder when the victim is subpoenaed, or has been subpoenaed, to testify, or the victim had testified, in any preliminary hearing, grand jury proceeding, criminal trial or criminal proceeding of whatever nature, or civil trial or civil proceeding of whatever nature, in any municipal, state, or federal court, when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness.”

This Court is bound to apply the plain meaning of any statute; when the language of a statute is unambiguous, the clearly expressed intent of the legislature must be given effect. See Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005). As the Court of Criminal Appeals held, the plain meaning of the words used in § 13A-5 — 40(a)(14) excludes the present case, because Flynn — who was listed as a potential witness — had not yet been subpoenaed when he was killed. Therefore, the trial court correctly dismissed Count IV of the indictment, and the Court of Criminal Appeals correctly affirmed that dismissal.

I concur with the following from the Court of Criminal Appeals’ decision:

“In Ex parte Jackson, 614 So.2d 405 (Ala.1993), the Alabama Supreme Court examined another death penalty provision, subsection (a)(17) of § 13A-5-40, to see if it applied to the facts of that case. After considering both the ‘clear statutory language’ of the provision and the presumption that ‘the legislature knows the meaning of the words it uses in enacting legislation,’ the Court concluded that the provision did not apply. We likewise presume that the legislature knew the meaning of the clear language it used in § 13A-5-40(a)(14). If the legislature had intended subsection (a)(14) to apply to projected witnesses, the legislature could have written the statute to include a victim who is ‘listed on the indictment to be subpoenaed’ or who is ‘projected to be a witness.’ ‘The judiciary will not add that which the Legislature chose to omit.’ Jackson, 614 So.2d at 407. If the legislature disagrees with this interpretation of § 13A-5-40(a)(14), then it will enact appropriate legislation to modify the statute and yield a different result in subsequent cases.”

940 So.2d at 1080.

NABERS, C.J., and STUART and BOLIN, JJ., concur.

PARKER, Justice

(concurring specially).

I concur to deny the State of Alabama’s petition for certiorari review. The Court of Criminal Appeals’ holding — that because Patrick Flynn, the victim, was not under subpoena at the time of his death, Michael Dean cannot be charged with capital murder under Ala.Code 1975, § 13A-5-40(a)(14) — is correct. Because of the wording of § 13A-5-40(a)(14), the State cannot pursue a capital-murder indictment under the facts of this case as alleged.

One reason the status of the victim as a subpoenaed witness is made an aggravating factor justifying a capital-murder charge is that witnesses need protection, and the murder of a witness is not only an offense against the victim, but also an attack upon the criminal-justice system. If the intent of the State of Alabama is to protect witnesses from the time an indictment issues, then the legislature should reexamine § 13A-5-40(a)(14) and consider amending it to reflect this objective.


author: PER CURIAM. ANSTEAD, J.,

text:
    Inquiry Concerning A Judge, re Richard H. ALBRITTON, Jr.
    No. SC05-851.
    Supreme Court of Florida.
    Sept. 7, 2006.
    The Honorable James R. Wolf, Chair, Florida Judicial Qualifications Commission, Marvin E. Barkin, Interim General Counsel, Brooke S. Kennerly, Executive Director, Tallahassee, FL and David T. Knight of Hill, Ward and Henderson, P.A., Special Counsel, Tampa, FL, for Florida Judicial Qualifications Commission, Petitioner.
    Scott K. Tozian and Gwendolyn H. Hin-kle of Smith, Tozian and Hinkle, P.A., Tampa, FL, for Judge Richard H. Albrit-ton, Jr.
   PER CURIAM.

We review the recommendation of the Judicial Qualifications Commission (“JQC”) that Judge Richard H. Albritton, Jr. receive the sanction of a public reprimand, a thirty-day unpaid suspension from office, a $5000 fine, and payment of the costs of the JQC for violating the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. As explained in more detail below, we approve the JQC’s recommendation.

The instant action arose from charges filed against Judge Albritton alleging a pattern of improper conduct during his judgeship. On May 18, 2005, the JQC filed a notice of formal charges against Judge Albritton charging him with thirty-six ethical violations. On September 1, 2005, the JQC filed an amended notice of formal charges which provided greater specificity with regard to the violations of the Code of Judicial Conduct to correspond with each alleged ethical breach. Judge Albritton was charged with violating Canons 1, 2, 3, 4, and 5 of the Code of Judicial Conduct. The JQC’s Amended

Notice of Formal Charges set forth, in pertinent part, the following:

1. On or about May 14, 2004, in a telephone call which you initiated, you advised Jennifer D. Wells, Court Administrator for the Fourteenth Judicial Circuit, that you do not want her to work with you or to do anything associated with you or your office. You further told her that if necessary, you would enter an order barring her from your office and from doing anything concerning you, and that you would find her in contempt if she disobeyed the order. You also told her that she should not go to Chief Judge Judy Pittman and tell her about the call, and that if she did, she did not want to know what you would do.
2. Despite three requests, you failed to respond to a fax message from the Florida Department of Corrections dated May 6, 2004, requesting clarification of the sentence you imposed on Otha Lee Abney, Jr., DOC Number 583365.
3. In February 2003, you advised Kara Berlin, Trial Court Staff Attorney, in the Jackson County Courthouse, not to talk with assistant state attorneys.
4. At various times between February 2003 and February 2004, during breaks in trials, you entered and sat in the public defender’s office in the Jackson County Courthouse in your robe.
5. During the same time period, you required as a condition of probation that a defendant attend church. When advised by the staff attorney that this was unconstitutional, you responded, “I know that’s wrong, but the defendant doesn’t know it.”
6. In the case of Walter Anthony Hayes, in which Hayes had served six months in jail, there was an ineffective assistance of counsel hearing. You granted a portion of the defense request for ineffective counsel and granted the defendant a new trial. In a meeting with an assistant state attorney and defense attorney, the prosecution offered Hayes a settlement of ten years in prison and you said, “I’ll give him seven,” and imposed that sentence.
7. In or about 2004, a female probation officer recently went through a divorce and at the end of a hearing, while people were still in the courtroom, you asked her about her divorce.
8. In a juvenile delinquency case involving a female defendant in court who had turned 18, but who had committed a crime when she was a juvenile, you made a comment from the bench as to how attractive she was. You then gave her a lighter sentence than you ordinarily would have given.
9. On an ongoing basis, you are late to hearings and trials. For example, when a matter is noticed for 1:30 p.m., it will typically not begin before 2:30 p.m. You also take purportedly short breaks of fifteen minutes and do not return for as much as one to two hours. This often results in the proceedings going beyond normal closing time.
10. Following a pattern, you inquire of mothers, “What are your drugs of choice?” in open court when this has nothing to do with the matter in question. You do this to humiliate female defendants. For example, you will say, “Once a drug addict, always a drug addict,” to a female in open court, or, “I think you should get a 40 hour a week job.”
11. During a hearing in In the Interest of Angel Pope, Jackson County Case 2002-136-CJ, on September 4, 2002, you put a young mother in a holding cell for most of the day because she could not recall what her address was.
12. A teenage girl had been charged with a crime and had served time in juvenile detention. The girl told you she was pregnant. You asked her who the father was and when she wouldn’t tell you, you put her back in juvenile detention and said she could stay there until she told you who the father was.
13. In In the Interest of Kah Kahlia Guilford, Jackson County Case Number 02-175-CJ, you jailed a young mother who came before you on a dependency court hearing after stating that she had had contact with the other party in the domestic violence matter. The attorney for the mother objected as she had no notice that the domestic violence matter would come up. You jailed her for 15 to 20 days.
14. You are often very demeaning to attorneys, and especially DCF attorney Tara Melton, Esquire, who is of African-American ancestry.
15. For example, when you first went to the bench, you asked Ms. Melton what church she attended and remarked that “your people helped me get elected.” Melton responded, “Who are my people?” and you replied, “Black people.” This was said in front of Ms. Melton’s colleagues. At another time when Ms. Melton went into your chambers for a case following a hearing involving a family also named Melton, you said “Ms. Melton, I just spent the whole day with your people.” She replied, “I don’t recognize anyone from my family,” and you said, “They were in here acting ugly. They must be your people as the last name was Melton.”
16. You repeatedly address Ms. Melton as “Tara” while addressing others as Mr. or Mrs.
17. You would often say to mothers, “Women should be at home with their kids.” Such comments were in fact directed to other working mothers in the courtroom, including attorneys.
18. You said words to Ms. Melton to the effect of, “I’ve never threatened you with a bar complaint,” when in fact you had threatened her twice.
19. From the bench you said, ‘You know, Mrs. Baker (a case worker), you and I have already talked about this case.” You would tell Department of Children and Families (DCF) workers outside of court how you were going to rule and how to present a case if you didn’t like the people.
20. You told one lady named Tanya Patterson, on the record and in open court, that she needed to close her legs and stop having babies.
21. In a case involving the Goebel family, you had ex-parte communications with Ms. Melton. Ms. Melton had concluded that she did not have [a] case as the mother had completed her case plan and they were stipulating that the children go with the mother with supervision. You said “no” to the stipulation, and at a court break, you called Ms. Melton back to your office. You said words to the effect of “that lady is a piece of trash and I know the DCF is offering her a stipulation, but I want her kids adjudicated dependent and I don’t want her to ever get her kids back.” As a result, the case went to trial with DCF having a very weak case and you adjudicated the children dependent.
22. When you first went on the bench, you met with DCF personnel in Panama City so they could get to know you. You offered everyone coffee, except Ms. Melissa Bowers Long. You offered Ms. Long milk saying it was because she was so young.
23. In Marianna, Florida, you said to Ms. Long that you know black ministers in the area and told her that she should try and associate with them. She had told you that her father is a black minister.
24. In dependency cases, when a parent comes before you, you would sometimes ask the person if they were using drugs and if the person said “no,” you might order a drug test on the spot. If the test came back positive, you would hold the person in contempt and have them immediately jailed.
25. You would occasionally ask attorney John Young Roberts about hunting. You stated that during the fall of 2004, you would like to go hunting with him and he said that would be fine. You then asked if he was available that weekend and you went hunting with him.
26. You asked Mr. Roberts if he was a friend of the person that held a Christmas party. Mr. Roberts said he was, and you asked if he could get you an invitation to the party. On the date of the party, your assistant called Mr. Roberts to ask if he could fax the invitation to you. He did so, and you attended the Christmas party.
27. Sometime during the spring of 2004 during a recess while getting coffee, you told Mr. Roberts that you were leaving Jackson County to go to Bay County. You continued by stating that you had enjoyed your time in Jackson County and wanted to see everyone in Jackson County and told Mr. Roberts to throw you a party. You said you wanted the party at the friend’s house where you had gone to the Christmas party. Mr. Roberts did nothing.
28. You would allow your clerk, Sue, to make comments and act like a mini-judge. For example, if you were talking about child support, Sue would remark under her breath, but loud enough for everyone to hear, “Obviously got money for cigarettes.” She would also participate in hearings and would remind you what had happened in a prior hearing. For example, she would say, “remember, this is the guy who last month said.... ”
29. In or about the spring of 2004, Elizabeth Milton Simpson, Esquire, was in your court when you called her up to the bench. You stated, to the effect, “You heard they’re giving me a party. We need people to donate money and you need to give $100 to Jerry Glass (an investigator for the public defender)”. A day or so later while in court you mentioned the money to her. She then wrote a check, payable to Jerry Glass, gave it Glass and told him to make sure he told you she had paid.
30. Approximately eight months ago, you asked Stephanie Shimer, Esquire, and Ms. Simpson to go to lunch with you. In the case of Taylor Dumas, Case No. 03-06, you had ordered the DCF to directly pay defense attorneys Shimer and Simpson as opposed to the county paying the legal bills as you did not like the case DCF had brought. At lunch you said words to the effect of, “I need you to put this language in your motion and I want you to draft an order saying this/’ and then you said what you wanted in the order. You insisted you wanted them to write it down so Ms. Shimer did so. The motion was filed and you issued the order.
31. During court one day you said, “Ms. Simpson, are you taking us to lunch today?” Ms. Simpson said she responded, “I guess so”, and about eight people went to lunch. Ms. Simpson said the bill came to just under $100 which she paid.
32. You told Ms. Simpson’s husband that you do not have a high opinion of female lawyers. You added, “I am not referring to your wife.”
33. Wade Mercer, Esquire, appeared in a dependency case and after the dependency case was concluded, you said you wanted to talk with him. He went in to your chambers, and you told him you were concerned that in the hearing there was an objection you thought Mr. Mercer should have made. You continued, “I intend for DCF to prove their case.”
34. While hearing a case tried by Mr. Mercer and Ms. Elizabeth Simpson, you told Ms. Simpson, “If your client doesn’t plead, I’m going to revoke your client’s bail.”
35. In order to avoid ex parte communications with you, the public defenders send their investigator, Jerry Glass, to talk with you about pending cases because he is not an attorney.
36. On or about June 15, 2004, at the party for you, Mr. Glass presented you with a gift certificate for $150.00 from Wal-Mart from the party contributors.

On May 19, 2006, the JQC and Judge Albritton presented a stipulation to this Court pursuant to article V, section 12 of the Florida Constitution, and Florida Judicial Qualifications Commission Rule 6(j). In that stipulation, Judge Albritton admitted fourteen of the thirty-six original charges and the impropriety of that conduct, waived his right to a hearing before the JQC and oral argument before this Court, and stipulated to the recommended discipline. The JQC recommended a public reprimand, a thirty-day unpaid suspension from office, a $5000 fine, and that Judge Albritton pay the costs of the JQC, in the amount of $1,203.70. Based on these stipulated facts, we approve the JQC’s recommendation.

This Court may “accept, reject, or modify in whole or in part” the findings and conclusions of the JQC. Art. V, § 12(c)(1), Fla. Const. Judge Albritton has stipulated to the conduct in the fourteen charges that the JQC ultimately found him guilty of. Because Judge Al-britton admits to this alleged wrongdoing, we accept the commission’s findings. This Court has stated that “[i]n cases where a judge admits to wrongdoing and the JQC’s finding are undisputed this Court will ordinarily conclude that the JQC’s findings are supported by clear and convincing evidence.” In re Diaz, 908 So.2d 334, 337 (Fla.2005) (citing In re Andrews, 875 So.2d 441, 442 (Fla.2004) (“Judge Andrews admitted to the conduct alleged by the JQC. Accordingly, the JQC’s findings are supported by clear and convincing evidence.”)).

We next address whether we should approve the recommended discipline of the JQC. In the instant matter, the conduct of Judge Albritton violates a substantial number of the canons of the Code of Judicial Conduct for a variety of reasons. Hence, this is not a case in which the violations tend toward one variety. For example, in In re Schapiro, 845 So.2d 170 (Fla.2003), we approved the discipline of a public reprimand, psychological therapy, and public letters of apology for a judge who engaged in a pattern of rude and intemperate courtroom behavior directed to attorneys appearing before the judge that occurred over a long period of time. See id. at 174. In the instant matter, Judge Albritton’s conduct covered a broad range of improper acts which (1) called into question his impartiality, see, e.g., charges 4 and 33; (2) evinced improper courtroom decorum, including intemperate behavior towards litigants, see, e.g., charges 11 and 24; (3) involved his use of judicial office for personal gain, including several instances in which Judge Albritton used his position to pressure attorneys in the community and who practiced before him to expend personal monies for his entertainment, see, e.g., charges 29 and 31; and (4) on one occasion, evinced an intentional and conscious abrogation of the constitutional principles he had sworn to uphold, see charge 5. These violations are extreme not only in their number and seriousness, but also in the plethora of code violations they encompass. This conduct demonstrates not only a lack of judicial temperament but also, and more importantly, Judge Albritton’s use of his office to pressure individuals to act for his own benefit. This conduct clearly falls far and inexcusably short of the high standards of integrity and independence that we demand of our judicial officers. Additionally, Judge Albritton has expressly agreed to the recommended discipline. Based on the egregiousness of the conduct of Judge Al-britton and the stipulation between the JQC and Judge Albritton, we accept and approve the recommended discipline.

Accordingly, we approve the stipulation and direct Judge Albritton to pay both the $5000 fine and the JQC’s costs in the amount of $1,203.70, and serve the thirty-day unpaid suspension. Additionally, in accordance with the policy announced in In re Frank, 753 So.2d 1228 (Fla.2000), we hereby command Judge Richard H. Albrit-ton to appear before this Court for the administration of a public reprimand on September 18, 2006, at 9 a.m., as directed by this Court in a separate order.

It is so ordered.

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

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

ANSTEAD, J.,

dissenting.

In view of the number and seriousness of the assertions of misconduct involved herein, I conclude that there is a substantial question as to whether this judge is presently fit to serve as a judge in Florida’s justice system. Accordingly, I would reject the proposed stipulation and remand to the JQC for farther proceedings.

PARIENTE, J., concurs.

      . The specific sections of the canons that the JQC ultimately found were violated by Judge Albritton’s actions provide as follows:

        Canon 1. A Judge Shall Uphold the Integrity and Independence of the Judiciary
      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
      Canon 2. A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities
      A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary-
      B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

      Canon 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
      A. Judicial Duties in General.
      The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the specific standards set forth in the following sections apply.
      B. Adjudicative Responsibilities.
      (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
      (2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
      (3) A judge shall require order and decorum in proceedings before the judge.
      (4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control.
      (5)A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and shall not permit staff, court officials, and others subject to the judge's direction and control to do so. This section does not preclude the consideration of race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors when they are issues in the proceeding.

      (7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
      (a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided:
      (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
      (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
      (b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond.
      (c) A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.
      (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
      (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

        C. Administrative Responsibilities.
      (1)A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

      Canon 4. A Judge is Encouraged to Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice
      A. A judge shall conduct all of the judge's quasi-judicial activities so that they do not:
      (1)cast reasonable doubt on the judge’s capacity to act impartially as a judge;
      (2) demean the judicial office; or
      (3) interfere with the proper performance of judicial duties.

      Canon 5. A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict with Judicial Duties
      A. Extrajudicial Activities in General. A judge shall conduct all of the judge's extrajudicial activities so that they do not:
      (1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
      (2) demean the judicial office; or
      (3) interfere with the proper performance of judicial duties.
      Fla.Code Jud. Conduct, Canons 1-5.

      . The fourteen violations Judge Albritton admitted corresponded to charges 4, 5, 9, 11, 22, 24, 25, 26, 27, 29, 30, 31, 33, and 36 of the Amended Notice of Formal Charges.


text:
    ADVISORY OPINION TO The GOVERNOR re JUDICIAL VACANCY DUE TO MANDATORY RETIREMENT.
    No. SC06-1184.
    Supreme Court of Florida.
    Sept. 15, 2006.
    Raquel A. Rodriguez, General Counsel, Nathan A. Adams, IV, Deputy General Counsel, and Gladys Perez, Assistant General Counsel, Office of the Governor, Tallahassee, for Petitioner, The Honorable Jeb Bush.
    Jason Brent Gonzalez, Chairman, Judicial Nominating Commission for the First District Court of Appeal, Tallahassee, responding with comments.
   The Honorable Jeb Bush

Governor, State of Florida

The Capitol

Tallahassee, Florida 32899

Dear Governor Bush:

By letter dated June 20, 2006, you requested our opinion on a question of constitutional interpretation involving your executive powers and duties with regard to a mandatory judicial vacancy in the First District Court of Appeal. This request and our response is pursuant to article IV, section (l)(e) of the Florida Constitution.

Your letter provided the relevant facts as follows:

Judge Richard Ervin, III, a judge of the First District Court of Appeal, was born on October 16, 1934. On that day in 2004, Judge Ervin turned seventy years old. Article V, section 8 of the Florida Constitution provides that “[n]o judge or justice shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.” Judge Ervin’s term ends on January 1, 2007. Because of mandatory retirement, he was ineligible for retention and did not seek to qualify for retention during the qualifying period, May 8-12, 2006.
Article V, section 10 provides that “[i]f a justice or judge is ineligible or fails to qualify for retention, a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge.” Article V, section 11(a) provides for the Governor to fill a vacancy in a judicial office to which election for retention applies.
Although I understand that a physical vacancy occurs upon the termination of the term, a question has arisen as to when a constitutional vacancy occurs, effectuating the process to fill it. If a constitutional vacancy occurs upon the failure of a judge to qualify for retention, the judicial nominations commission must submit nominations to me within 30 days from the occurrence of the vacancy, unless extended by me for another 30 days. Art. V, sec. 11(c), Fla. Const. In such instance, I will be able to appoint a successor who can take office immediately after the conclusion of Judge Ervin’s term, and there will be no prolonged vacancy on the First District Court of Appeal. If a constitutional vacancy occurs only at the expiration of his term, the nominations may not be made until thirty to sixty days thereafter, and it may be as late as May 2007 before a successor is appointed, leaving a four month vacancy on the court.
Therefore, I respectfully request an opinion of the Justices of the Supreme Court as to the question of when a vacancy occurs resulting from the mandatory retirement of the judge who is not eligible for retention.

Letter from Governor Jeb Bush to former Chief Justice Barbara Pariente (June 20, 2006) (on file with Clerk, Supreme Court of Fla.), at 1-2. Judge Ervin two days later wrote a letter to you announcing that he would complete his term on the First District Court of Appeal, but was constitutionally prohibited from serving an additional term.

ANALYSIS

Article V, section 8, of the Florida Constitution provides, in pertinent part, “No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.” Art. V, § 8, Fla. Const. Article V, section 11 of the Florida Constitution, titled Vacancies, delineates the Governor’s duties when a vacancy occurs in a judicial office:

(a) Whenever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next general election occurring at least one year after the date of appointment, one of not fewer than three persons nor more than six persons nominated by the appropriate judicial nominating commission.
(c) The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.

Art. V, § 11(a),(c), Fla. Const.

Our response to your question is compelled by the fact that there is a specific constitutional provision that expressly provides that a vacancy in a merit retention judicial office does not occur until the end of the judge or justice’s term. Article V, section 10(a), of the Florida Constitution states: “If a justice or judge is ineligible or fails to qualify for retention, a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge.” (Emphasis added.) The letter of a merit retention judge or justice announcing his or her mandatory retirement at the end of the term does not create a vacancy in that judicial office until the actual date that the judge or justice’s term expires pursuant to the specific constitutional provision which addresses when a “vacancy” occurs.

To understand the distinction between elected and retained judges, it is instructive to review the constitutional history regarding judicial vacancies. Prior to a 1976 amendment implementing the merit retention of Florida Supreme Court justices and district court of appeal judges, the Florida Constitution did not contain a specific explanation of when judicial positions become “vacant.” This Court in Spector v. Glisson, 305 So.2d 777 (Fla.1974), a case involving a non-merit retention judicial resignation prior to the amendment, noted:

A thorough search of the Florida Constitution reveals that ONLY in general Art. X, § 3, new in the 1968 Constitution, is there a definition of when a vacancy occurs, that section providing that a vacancy in office “shall occur” upon inter alia “resignation.” Nowhere else therein is a vacancy in office defined; the other related provisions, including the specific one as to judges, state how and when it is to be filled, but not when it OCCURS.

Id. at 779. In the absence of a specific provision governing judicial vacancies, the Court in Spector referred to article X, section 3, the provision of the Florida Constitution that governed vacancies in office in general, to determine when a judicial vacancy occurred:

The 1885 Constitution in Art. IV, § 7, authorized the Governor to fill a vacancy “(W)hen any office, from any cause, shall become vacant ....” Now, however, the current 1968 constitutional provision controls and also takes precedence over statutes such as Fla. Stat. § 114.01 providing that an office shall be “deemed vacant” in cases there enumerated, one being “resignation.” ... Thus, absent a specific provision in the 1968 Constitution as to judges (as there is in Art. V, §§ 10 and 11 regarding the manner of filling the vacancy) the general provision must apply, that a vacancy “shall occur” upon “resignation.”

Id. Relying on article X, section 3, the Court in Glisson concluded that the elected justice’s resignation letter created a vacancy in that elected position. See id. at 780. However, this constitutional provision does not apply to the vacancy in Judge Ervin’s position.

In 1976, the Florida Constitution was amended to implement a merit retention system for district court judges and Florida Supreme Court justices, and this amendment provided a specific explanation of when a vacancy occurs if a justice or judge is ineligible to qualify for merit retention:

If a justice or judge is ineligible or fails to qualify for retention, a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge.

Art. V, § 10(a), Fla. Const, (emphasis supplied).

This Court has determined that “[t]he rules which govern the construction of statutes are generally applicable to the construction of constitutional provisions.” Coastal Fla. Police Benev. Ass’n, Inc. v. Williams, 838 So.2d 543, 548 (Fla.2003). This Court has consistently stated that “[a]ny inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s explicit language. If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written.” Id. (quoting Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986)). We have further noted that “[t]he words and terms of a Constitution are to be interpreted in their most usual and obvious meaning, unless the text suggests that they have been used in a technical sense. The presumption is in favor of the natural and popular meaning.in which the words are usually understood by the people who have adopted them.” Butterworth v. Caggiano, 605 So.2d 56, 58 (Fla.1992) (quoting City of Jacksonville v. Cont’l Can Co., 113 Fla. 168, 151 So, 488, 489-90 (1933)).

The definition for when a vacancy occurs with regard to merit retention judges is clear and unambiguous — a vacancy exists upon the expiration of the term of the judge or justice. See art. V, § 10(a), Fla. Const. Therefore, we conclude that this constitutional provision must be applied in this circumstance as it is clearly written and as it was adopted by the voters. See Williams, 838 So.2d at 550; Caggiano, 605 So.2d at 58. Moreover, the lack of ambiguity in the Florida Constitution renders it unnecessary to review the history of the 1976 revision to article V, section 10, to determine when a vacancy in a merit retention judgeship occurs. See Public Health Trust of Dade County v. Lopez, 531 So.2d 946, 949 (Fla.1988) (“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning”) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)).

Finally, since there is a specific provision in article V governing judges and justices who are subject to merit retention, the instant case is totally distinguishable from earlier judicial vacancy cases which involved elected judicial officials and in which the general definition of vacancy provided in article X, section 3, of the Florida Constitution was applied. See, e.g., Advisory Opinion to the Governor re Sheriff & Judicial Vacancies Due to Resignations, 928 So.2d 1218 (Fla.2006); Advisory Opinion to the Governor re Appointment or Election of Judges, 824 So.2d 132 (Fla.2002); In re Advisory Opinion to the Governor (Judicial Vacancies), 600 So.2d 460 (Fla.1992); Judicial Nominating Comm’n, Ninth Circuit v. Graham, 424 So.2d 10 (Fla.1982); Spector v. Glisson, 305 So.2d 777 (Fla.1974).

CONCLUSION

Accordingly, we answer your question regarding the mandatory retirement of Judge Ervin by stating it is our opinion that the clear and unambiguous language of article V, section 10(a) of the Florida Constitution dictates that Judge Ervin’s position will become vacant when his term expires.

Respectfully,

/s/ R. Fred Lewis R. Fred Lewis

/s/ Charles T. Wells Charles T. Wells

/s/ Harry Lee Anstead Harry Lee Anstead

/s/ Barbara J. Pariente Barbara J. Pariente

/s/ Peggy A. Quince Peggy A. Quince

/s/ Raoul G. Cantero, III Raoul G. Cantero, III

/s/ Kenneth B. Bell Kenneth B. Bell

CANTERO, J.,

concurring.

I agree with the majority that the plain language of the Florida Constitution dictates our answer to the Governor’s question. I write only to emphasize that in these circumstances, nothing in the Florida Constitution prevents the relevant judicial nominating commission (“JNC”) from beginning the process of nominating the retiring judge’s successor before the vacancy actually occurs — that is, before expiration of the judge or justice’s term. In terms of the nominating process, the Constitution requires only that “nominations shall be made within thirty days from the occurrence of the vacancy unless the period is extended by the governor for a time not to exceed thirty days.” The constitution is silent on when the process must begin. We have previously emphasized, however, that “[vacancies in office are to be avoided whenever possible. We are confident that the framers of article V intended that the nominating and appointment process would be conducted in such a way as to avoid or at least minimize the time that vacancies exist.” In re Advisory Opinion to the Governor (Judicial Vacancies), 600 So.2d 460, 462 (Fla.1992).

Today’s opinion renders some period of vacancy virtually unavoidable when a justice or judge fails to qualify for a retention election. Unless the JNCs begin the nominating process before the vacancies actually occur, by requesting applications, interviewing applicants, and deliberating about potential nominees, that period may extend for up to four months before the governor appoints a successor. This period does not even account for the inevitable delay between the date of the appointment and the date the appointee actually takes office. Many appointments to the state appellate courts and to this Court entail relocations to another city, which can delay the process by several weeks. Thus, if JNCs were forced to wait until the outgoing judge leaves office before even advertising the opening, the affected court may be left without a necessary judge for months. In a court such as ours, where most cases are heard en banc, the burden on the remaining justices would be enormous.

In my opinion, the Florida Constitution grants the JNCs the flexibility to begin the nomination process before the vacancy actually occurs, therefore allowing them to minimize the period in which the position remains vacant. It is in the interest of the people of Florida that such vacancies be filled as quickly as possible.

BELL, J., concurs.

      . Article IV, section (l)(c) provides in full:
      The governor may request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting the governor's executive powers and duties. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion not earlier than ten days from the filing and docketing of the request, unless in their judgment the delay would cause public injury.

      . Article X, section 3, of the Florida Constitution currently provides:
      Vacancy in office shall occur upon the creation of an office, upon the death, removal from office, or resignation of the incumbent or the incumbent’s succession to another office, unexplained absence for sixty consecutive days, or failure to maintain the residence required when elected or appointed, and upon failure of one elected or appointed to office to qualify within thirty days from the commencement of the term.
      This provision clearly has no application to the current facts.

      . This language has not changed since the Florida Constitution was amended in 1976.

      . The language that was placed on the 1976 ballot further supports the conclusion that a vacancy is created upon the expiration of the term of a judge or justice who is ineligible to qualify for merit retention. The ballot language provided:
      Proposing an amendment to the State Constitution to provide ... that justices of the supreme court and judges of district courts of appeal submit themselves for retention or rejection by the electors in a general election every six years, and that failure to submit to a vote for retention or rejection, or a vote of rejection by the electors, will result in a vacancy in the office upon expiration of the current term

      CS for SJR 49, 81 (1976) (proposed art. V, §§ 3, 10-11, Fla. Const.) (emphasis supplied).

      .Nonetheless, a commentaiy to the 1976 amendment to section 10(a) may be read to support the express language in the constitution that a vacancy occurs upon the expiration of the judge or justice's term. The commentary provides in pertinent part:
      The retention election poses the simple question “Shall the justice or judge be retained in office?” If the answer is yes, the justice or judge will serve a six-year term; if the answer is no, a vacancy is created and it will be filled through the nominating commission process.
      Art. V, § 10, Fla. Const., 26 Fla. Stat. Ann. 51 cmt. (Supp.2006). Under this commentary, if the electors vote for retention, it is clear that the justice or judge "will serve a six-year term” from the date that his or her prior term expires (i.e., the six-year term does not commence at the time that the electors vote to retain the judge or justice). Thus, if the electors vote not to retain a judge, the vacancy similarly will occur at the expiration of the term served by that judge. There is no indication from the commentary that the date a judge or justice’s term "expires,” thereby leading to either the commencement of a new six-year term or a vacancy in that judgeship, varies based on whether the judge or justice has been, or is eligible to be, retained. Analogously, and more pertinent to the instant case, a judge who is subject to mandatory retirement under the constitution cannot control when the vacancy in his or her office will occur by writing a letter to the Governor announcing that he or she is prohibited from serving an additional term.

      . There may well be provisions of the Uniform Rules of Procedure for District Courts of Appeal Judicial Nominating Commissions relevant to this issue. I consider here only the requirements of the Florida Constitution.


author: CANTERO, J.

text:
    F.G., et al., Petitioners, v. AGENCY FOR PERSONS WITH DISABILITIES, Respondent.
    No. SC06-240.
    Supreme Court of Florida.
    Sept. 28, 2006.

      Charles M. Auslander, The Children’s Trust, Miami, FL, on behalf of F.G., James C. Blecke of Deutsch and Blumberg, P.A., Miami, FL, on behalf of the Honorable Cindy S. Lederman and Dennis W. Moore, Mercedes E. Scopetta and Thomas Wade Young, Orlando, FL, on behalf of Guardian ad Litem Program, for Petitioners.
    Nancy Schleifer, Coconut Grove, FL, on behalf of Lawyers for Children and Karen Gievers, Tallahassee, FL, on behalf of Florida’s Children First, Inc., for Amicus Curiae.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Valerie J. Martin and Charles M. Fahlbusch, Assistant Attorney Generals, Fort Lauderdale, FL, for Respondent.
   CANTERO, J.

In this case, we decide whether a juvenile court judge has the authority to subpoena information and testimony from officers of an executive agency regarding a matter within the jurisdiction of that court. We review Agency for Persons with Disabilities v. F.G., 917 So.2d 887 (Fla. 3d DCA 2005), which held that a judge does not have such authority. We have jurisdiction because that decision affects a class of constitutional or state officers — circuit judges. See art. V, § 3(b)(3), Fla. Const. After accepting jurisdiction and hearing oral argument on June 29, 2006, on June 30 this Court issued an order quashing the decision of the Third District Court of Appeal and holding that, under both statute and court rule, a juvenile court judge has the authority to subpoena information and testimony from officers of the Agency for Persons with Disabilities for informational purposes. We now explain our decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner F.G. was a minor who applied to the Department of Children and Family Services (“DCF”) for services under the Medicaid Waiver Program. His alleged developmental disability was mental retardation. In October 2002, DCF notified F.G. that it had placed him on a waiting list for the waiver. The letter explained that DCF did not have adequate space or funding to meet its existing obligations and to serve him on the waiver as he requested. The letter also stated that if he disagreed with the decision, he could request a fair hearing to contest it. The record in this case is sparse, and it does not indicate that F.G. ever sought administrative or judicial review of DCF’s determination.

On June 22, 2005, the circuit court issued a subpoena duces tecum to the Agency for Persons with Disabilities (“APD”). The subpoena stated in relevant part:

TO: Evelyn Alvarez, Orlando Garcia, Joseph Perry,
(or other designated person(s)) Agency for Persons with Disabilities
YOU ARE HEREBY COMMANDED to appear before the Honorable Cindy S. Lederman ... to testify ... and to have with you ... the following:
All records and reports concerning the above-mentioned child, in reference to his status with Medwaiver and services rendered or why this child is not receiving services.

The subpoena did not require any specific action by APD, except to appear in court. In response, APD filed an Emergency Petition for a Writ of Prohibition or Certiora-ri, seeking a writ of prohibition to restrain the circuit court from ordering that its officers appear before it and produce documents.

The Third District granted the writ. F.G., 917 So.2d at 888. It held that “[t]he trial court lacks constitutional or statutory authority to subpoena duces tecum ... officers of state government, concerning a matter that is within their executive authority.” Id. It prohibited the circuit court “from requiring the appearance of [the APD officers] to testify and/or produce” any records. Id.

F.G. sought review in our Court. We exercised our discretion and granted review. On June 29, 2006, we held oral argument and on June 30 we issued an order quashing the district court’s decision.

We note that the record does not reflect why or how this case first came before the circuit court. At oral argument, the parties could not clarify the mystery. The most reliable clue is an order from the circuit court appointing counsel. The order states, “This cause came to be heard on JULY 28, 2005 upon a detention/ dependent petition filed by Department of Children and Families.” (Emphasis added.) The order appointed counsel for the child “in the above-styled dependency proceeding. ... this 28th day of JULY, 2005.” (Emphasis added.) The court, however, issued the subpoena on June 22, 2005. Therefore, either some other cause of action preceded the subpoena, or the date of July 28, 2005, in the order merely refers to the date of that order. The second reference to that date implies that the only matter that arose on July 28, 2005, was the appointment of counsel. If so, then the “dependent petition” must have been filed some time in the past, presumably before the court issued the subpoena, and the “dependency proceeding” resulted from the filing of that petition.

In their briefs and in their filings in the district court, the parties and amici curiae make various references that reinforce the characterization of this case as a dependency proceeding. For example, in its brief, APD notes that the court issued the subpoena “in the context of a dependency action.” In its petition for a writ of prohibition, it states that the DCF “is the Respondent in the dependency action below.” In addition, it refers to APD as “a non-party to the dependency proceeding.” In response to APD’s petition for a writ of prohibition, F.G. refers to an “ongoing dependency proceeding.” Likewise, the Guardian Ad Litem Program asserts that the court had jurisdiction because this case is a “dependency case.”

These references, however, are inconclusive. Thus, we examine the issue in this case without considering its procedural history and whether this case was properly before the circuit court.

II. ANALYSIS

We begin by noting the narrow issue before us, and the correspondingly narrow basis of our decision. Although the parties have raised various issues about the court’s authority to order services and to subpoena high-level executive agency officials, the subpoena under review is limited. It neither orders an agency to perform particular services nor requires the presence of specific high-level officials. We therefore decide only whether the subpoena issued in this case was proper. We do not speculate about other potential orders.

The Third District held below that a circuit court has no authority to subpoena executive agency officials for testimony and documents. F.G., 917 So.2d at 888. Only one other court has considered this issue. See State Dep’t of Health Rehab. Servs. v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991). In Brooke, a juvenile court judge ordered the appearance of the Secretary of the Department of Health and Rehabilitative Services to explain why the Department did not have sufficient funding to place certain children in psychiatric or therapeutic residential facilities. Id. at 365. The First District held that “it was an abuse of the trial court’s discretion to demand that [the secretary] appear ... to provide information that is largely within the realm of the secretary’s discretionary authority.” Id. at 371. The district court noted that the acting district administrator already had explained why the Department did not have funding. See id. at 366, 371. In a letter to the court, he informed the judge that its allocated budget was less than its needs, and the Department was prohibited from spending more than its approved budget. Id. at 366. The court then explained, however, that under different circumstances a trial court would have the authority to subpoena an executive agency officer. It held that “the separation of powers ... would not preclude a circuit court from calling before it a member of the executive branch for narrowly defined informational purposes.” Id. at 371. Based on the plain language of both the relevant rule and a statute on point, we agree with the First District’s analysis.

Both the Florida Rules of Juvenile Procedure and Florida Statutes authorize the subpoena issued here. Rule 8.225(a)(2) provides that “[s]ubpoenas for testimony before the court, for production of tangible evidence ... shall be issued by the clerk of the court, the court on its own motion, or any attorney of record for a party.” (Emphasis added.) In addition, section 39.502(11), Florida Statutes (2005), provides that “[u]pon the application of a party or the petitioner, the clerk or deputy clerk shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents, and other tangible objects at any hearing.” (Emphasis added.) Furthermore, section 393.13(4)(j)(2)(b), Florida Statutes (2005), states that “[t]he [client’s central] record shall be produced in response to a subpoena.” Section 393.063(4), Florida Statutes (2005), defines “client” as “any person determined eligible by the agency for services under this chapter.” These authorities, particularly rule 8.225(a)(2), clearly authorize a circuit court to issue subpoenas. Such subpoenas may include requests for testimony from APD officers as well as APD’s records of a developmentally disabled individual such as F.G. We agree with the district court in Brooke that “the separation of powers ... [does] not preclude a circuit court from calling before it a member of the executive branch for narrowly defined informational purposes.” 573 So.2d at 371. That was the only information requested here.

Finally, APD argues that the court did not have the authority to subpoena high-level officials of APD unless the information requested was necessary, relevant, and unavailable from anyone else. We reject APD’s premise for the argument— that any high-level officials were required to appear in this case. The subpoena was issued to “Evelyn Alvarez, Orlando Garcia, Joseph Perry, (or other designated person(s))” of APD. Apparently, Ms. Alvarez is a Program Operations Administrator, Mr. Garcia is a Senior Manager, and Mr. Perry is a Human Resources Counselor. We assume, without deciding, that these are high-level officials within APD. The subpoena, however, did not require these specific officials to attend the hearing. The subpoena specifically noted that any designated person could produce the documents and appear before the court. The subpoena apparently sought to question the APD official with the most knowledge about the issue and the documents requested, which were “[a]ll records and reports concerning the above-mentioned child, in reference to his status with Med-waiver and services rendered or why this child is not receiving services.” Thus, APD could produce one of the mentioned officials or another official with knowledge, at its discretion. The subpoena does not require the attendance of the officials specified — or of any specific individual whatsoever. Therefore, we do not address APD’s argument.

III. CONCLUSION

For the reasons stated above, we hold that a circuit court judge has the authority to subpoena information and testimony from APD officers regarding a child’s status with the Medicare Waiver Program and receipt of services. We approve the reasoning of the First District in Brooke. We quash the Third District’s decision in F.G. and remand for further proceedings.

It is so ordered.

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

      . In this program, Medicaid reimburses enrolled providers for the provision of specified home and community-based services to persons at risk of institutionalization. Fla. Admin. Code R. 59G-13.080(1). Florida obtained waivers of federal Medicaid requirements to facilitate this process. Id. Waiver program participants must meet institutional level of care requirements. Id. The services are designed to allow the recipients to remain at home or in a home-like setting. Id.

      . Before 2004, DCF determined eligibility for developmental disability services. That year, however, the Legislature created APD as an entity separate from DCF. See § 20.197, Fla. Stat. (2004). APD is now responsible for providing services to persons with developmental disabilities under chapter 393. Id. § 20.197(2).

      . In addition, the case number in both the order appointing counsel and the subpoena is 02-16188, which indicates that this case arose sometime in 2002, the year DCF placed F.G. on a waiting list for developmental disability services.

      . F.G., Judge Lederman, and amicus curiae assert additional arguments for the court’s authority to issue the subpoena here, such as the court's "inherent” responsibility to protect the best interests of children and other statutes that grant such authority. Because sections 39.502(11) and 393.13(4)(j)(2)(b) and rule 8.225(a)(2) resolve the issue, however, we need not address these other grounds.

      . The information regarding Ms. Alvarez’s and Mr. Garcia's positions in APD are in the record. However, the record contains no information regarding Mr. Perry. In its brief, APD states that Mr. Perry is a Human Resources Counselor.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Michael M. NESBITT, Respondent.
    No. SC05-659.
    Supreme Court of Florida.
    Oct. 5, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Jeanine M. Germa-nowiez, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Michael M. Nesbitt, pro se, Florida City, FL, for Respondent.
   PER CURIAM.

We have for review Nesbitt v. State, 912 So.2d 15 (Fla. 4th DCA 2005), in which the Fourth Distinct Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2008), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time that the Fourth District Court of Appeal issued its decision in Nesbitt, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Darryl L. HARRIS, Respondent.
    No. SC05-535.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Harris v. State, 906 So.2d 1107 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time the Fourth District Court of Appeal issued its decision in Harris, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. Y, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Jamie BELL, Respondent.
    No. SC05-483.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Charles J. Crist, J., Attorney General, Tallahassee, FL, and Richard Valuntas, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Jamie Bell, pro se, Indiantown, FL, for Respondent.
   PER CURIAM.

We have for review Bell v. State, 912 So.2d 5 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time the Fourth District Court of Appeal issued its decision in Bell, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Morris BROWN, Respondent.
    No. SC05-441.
    Supreme Court of Florida.
    Oct. 5, 2006.

      Charlie J. Crist, Jr., Attorney General, Tallahassee, FL, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Helene Hvizd Morris, Special Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Brown v. State, 912 So.2d 7 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time that the Fourth District Court of Appeal issued its decision in Brown, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Sammy ROSS, Respondent.
    No. SC05-424.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Claudine M. LaF-rance, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Ross v. State, 912 So.2d 4 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time that the Fourth District Court of Appeal issued its decision in Ross, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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

PARIENTE, J., recused.


text:
    William E. TEAL, Petitioner, v. STATE of Florida, Respondent.
    No. SC04-102.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Heather M. Gray, Riverview, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and Dale E. Tarpley, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003), in which the Second District Court of Appeal certified conflict with the Fourth District Court of Appeal’s decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We recently quashed the Fourth District Court of Appeal’s decision in Richardson and clarified that the sanction of probation is a “sentence” for purposes of applying the sequential conviction requirement of the habitual felony offender statute, section 775.084(5), Florida Statutes (1999). See State v. Richardson, 915 So.2d 86 (Fla.2005).

The present case involves the sanction of community control. For the same reasons that we found probation to be a “sentence” in Richardson, we hold that the sanction of community control is a “sentence” for purposes of applying the sequential conviction requirement. Accordingly, we approve the decision by the Second District Court of Appeal in Teal.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Cory PETRUNY, Respondent.
    No. SC04-1727.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Claudine M. LaF-rance, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Cory Petruny, pro se, Miami, FL, for Respondent.
   PER CURIAM.

We have for review Petruny v. State, 884 So.2d 312 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time that the Fourth District Court of Appeal issued its decision in Petruny, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. Y, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Sterling WATTS, Respondent.
    No. SC05-848.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Diane Fischer Medley, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Carey Houghwout, Public Defender, and David John McPherrin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Watts v. State, 912 So.2d 17 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla.2005). At the time that the Fourth District Court of Appeal issued its decision in Watts, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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

PARIENTE, J., recused.


author: WELLS, J.

text:
    WASTE MANAGEMENT, INC., Petitioner, v. Rolando MORA, et al., Respondents.
    No. SC05-2024.
    Supreme Court of Florida.
    Oct. 12, 2006.

      Kevin T. Smith of Law Office of Bohdan Neswiaeheny, Fort Lauderdale, FL, for Petitioner.
    Michael P. Weisberg and Arthur J. Mor-burger, Miami, FL, for Respondent.
   WELLS, J.

We have for review the decision in Mora v. Waste Management, Inc., 911 So.2d 1251 (Fla. 4th DGA 2005), which certified conflict with the decision in Beyer v. Leonard, 711 So.2d 568 (Fla. 2d DCA 1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

Rolando and Maura Mora (Moras) obtained a jury verdict against Waste Management, Inc. (Waste Management) in the amount of $42,000. This verdict was intended to compensate the Moras for past and future medical expenses and lost earnings. The verdict awarded nothing for past or future pain and suffering. The Moras filed a motion for new trial. The Moras did not seek an additur.

Over the Moras’ objection, the trial court denied the motion and instead imposed a $10,000 additur, $5000 of which was for past pain and suffering and $5000 for future pain and suffering. The trial court based the additur on section 768.043(1), Florida Statutes (2004), which provides:

In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle ... wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

At the hearing on the motion for new trial, defendant Waste Management argued that in the case of additur, it was the defendant alone who had the choice of either accepting the additur or insisting on a new trial for damages. Waste Management maintained that the “party adversely affected,” as referred to in the statute, had to be the party required to pay the damages that would be in excess of the jury’s verdict when there was an additur. In response, plaintiffs, the Moras, contended that the “party adversely affected,” as referred to in the statute in the case of an additur, was the party who had received a legally inadequate jury award of damages.

The Moras appealed to the Fourth District Court of Appeal the order imposing additur and denying their motion for a new trial. The Fourth District reversed, relying on that Court’s earlier holding in Brant v. Dollar Rent A Car Systems, Inc., 869 So.2d 767, 769 (Fla. 4th DCA 2004). In Brant, the Fourth District had held that it would be “constitutionally dubious” for the Legislature to grant trial judges the authority to impose additur without the plaintiffs consent and that section 768.043(1) is most reasonably read to allow a plaintiff to refuse an unacceptable addi-tur and insist on a new trial.

The Fourth District acknowledged that the Second District had upheld an additur in Beyer after reasoning that a plaintiff could not be the “party adversely affected” by additur. Mora, 911 So.2d at 1251. The Fourth District then certified conflict with Beyer. The First District Court of Appeal in Bamford v. Williams, 896 So.2d 779 (Fla. 1st DCA 2004), agreed with the Fourth District.

ANALYSIS

The resolution of the conflict between the decisions of the First and Fourth Districts and the decision of the Second District is an issue of statutory construction. Our standard of review is de novo. Consistent with our precedent in Adams v. Wright, 403 So.2d 391 (Fla.1981), and ITT Hartford Insurance Co. of the Southeast v. Owens, 816 So.2d 572 (Fla.2002), we approve the decisions of the First and Fourth Districts and disapprove the decision of the Second District.

Prior to the Legislature’s adoption of sections 768.043 and 768.74, we had not recognized a trial court’s power to grant an additur. In Bennett v. Jacksonville Expressway Authority, 131 So.2d 740, 744 (Fla.1961), we held:

Although we have referred to the ad-ditur ordered by the trial judge as indicating the extent to which he considered the verdict unjust, we do not recognize his authority to effectuate an increase in the verdict of the jury. See Sarvis v. Folsom, Fla.App., 114 So.2d 490; State Road Department of Florida v. Cox, Fla.App., 118 So.2d 668; Wohlfiel v. Morris, Fla.App., 122 So.2d 235.

In Sarvis v. Folsom, 114 So.2d 490 (Fla. 1st DCA 1959), to which we referred, the First District stated:

We hold, in line with what we consider to be the better rule and the weight of authority, that in actions at law involving controverted and unliquidated damages courts are without power to require a party to consent to an additur as a condition to refusal to grant a new trial.

Id. at 492.

Shortly after the adoption of section 768.043, we decided Adams v. Wright, 403 So.2d 391 (Fla.1981), which was a constitutional challenge of the statute. The case involved a challenge by defendants to the trial court granting an additur or a new trial. In our decision, we first held that section 768.043 was remedial in nature, granting authority to the trial judge to modify a clearly excessive or inadequate verdict in a motor vehicle liability suit, and was designed to protect the substantive rights of litigants in those lawsuits. Id. at 394. We then stated:

Defendants next contend that the statute substantially abridges the right to a jury trial. We disagree. The statute clearly provides for a new trial in the event the party adversely affected by the remittitur or additur does not agree with the remittitur or additur. In other words, the complaining party need not accept the decision of the judge with respect to remittitur or additur. The party may have the matter of damages submitted to another jury. Defendants’ attack on the constitutionality of the statute is without merit.

Id. at 395. Thus, we equated the statute’s “party adversely affected” to the party complaining about the remittitur or addi-tur and held that if that party chooses that party may decline the remittitur or additur and have the damage issue submitted to another jury.

By giving the “party adversely affected” the “complaining party” construction, we found the statute to be constitutional. When reasonably possible, a statute should be construed to avoid conflict with the constitution. Schultz v. State, 361 So.2d 416, 418 (Fla.1978).

In ITT Hartford, 816 So.2d at 576, we specifically quoted the “complaining party” passage from our earlier decision in Adams in holding that a defendant had a right to a new trial on the issue of damages as an alternative to accepting additur. The Fourth District correctly followed our decision in Brant, which was the case which controlled the Fourth District’s decision in this case.

We reject the reasoning of the Second District in Beyer. The Second District decided that a plaintiff in whose favor an additur is granted by the trial court had to accept the additur and was not entitled to choose a new trial rather than additur. The Second District overlooked our decision in Adams and held:

We find instead that the clear meaning of a “party adversely affected by such remittitur or additur” to be the party who suffers the remittitur or additur.
In the case of remittitur, where damages previously awarded to the wronged party are reduced, the “party adversely affected” by the remittitur would be the party who receives less in damages than previously awarded. Where there has been an additur, however, and the liable party is required to pay additional damages, it is that liable party who would be “adversely affected.” The legislature, in its wisdom, did not provide, “If either party affected by such remittitur or ad-ditur does not agree, the court shall order a new trial on the issue of damages only.”

Beyer, 711 So.2d at 570. This view conflicts with our decisions in Adams and ITT Hartford that “persons adversely affected” means “the complaining party.”

Nor do we agree that only a party who receives “less in damages” can be affected by a remittitur, or only the party who has to pay more in damages can be affected by an additur. To the contrary, a defendant who has a jury award in an excessive amount of damages against the defendant can be a party adversely affected by a trial judge’s remittitur that is too little to cure the excessiveness. Similarly, a plaintiff who has a jury award for inadequate damages on the plaintiffs behalf is a party adversely affected by a trial judge’s addi-tur that is too little to cure the inadequacy. In each case, a defendant or plaintiff objecting to the amount of the remittitur or additur would be the party complaining about a continued excessiveness or inadequacy and has the right to choose a new trial rather than the remittitur or additur. Similarly, a plaintiff can be the party adversely affected by a trial judge determining a remittitur which is more than an amount reasonably necessary to cure an excessive verdict, or a defendant can be the party adversely affected by a trial judge determining an additur in an amount that is more than reasonably necessary to cure an inadequate verdict. In each case, the party that is adversely affected by the amount has a right to a new trial.

CONCLUSION

In sum, we conclude that a “party adversely affected” under section 768.043 is the party complaining about the amount of the trial judge’s additur or re-mittitur which is ordered in lieu of a new trial because of the jury verdict’s exces-siveness or inadequacy. We recognize that our decision means that only when the parties agree with the trial court’s amount of remittitur or additur will the remittitur or additur be enforced in lieu of a new trial. This construction also recognizes that the statute is authorization for a trial judge to decide the amount of a remittitur or additur which, if accepted by the parties, will avoid the time and expense of a new trial.

For the reasons stated in this opinion, we approve the Fourth District’s decision in Mora with directions that the case be remanded for a new trial. We disapprove the decision of the Second District in Beyer to the extent that it is inconsistent with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Eldrick Wendall WOODING, Respondent.
    No. SC03-2104.
    Supreme Court of Florida.
    Oct. 12, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Richard L. Polin, Bureau Chief Criminal Appeals, Miami, FL, for Petitioner.
    Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Respondent.
   PER CURIAM.

We have for review State v. Wooding, 858 So.2d 334 (Fla. 3d DCA 2003), which cites to a case that was pending review in this Court (Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), reversed sub nom. Milks v. State, 894 So.2d 924, 925 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 368, 163 L.Ed.2d 86 (2005)). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We directed respondent to show cause why this Court should not accept jurisdiction, summarily quash Wooding, 858 So.2d 334, and remand for reconsideration in light of Milks v. State, 894 So.2d 924 (Fla.2005). In its response to the order to show cause, the respondent argues that one of the bases upon which the Third District may have affirmed the trial court’s order in his case is not controlled by Milks, 894 So.2d 924. Having reviewed the case and the petitioner’s reply, we have decided to grant the petition for review and remand this case for further consideration. The Third District’s decision in Wooding, 858 So.2d 334, is quashed, and this matter is remanded for reconsideration in light of Milks, 894 So.2d 924, and any other matters that were properly raised before the Third District but not controlled by Milks, 894 So.2d 924. No motion for rehearing will be entertained by the Court.

It is so ordered.

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


text:
    Johnny James TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. SC03-1933.
    Supreme Court of Florida.
    Oct. 12, 2006.
    Johnny James Turner, pro se, Avon Park, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL and C. Suzanne Bechard, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Turner v. State, 857 So.2d 351 (Fla. 2d DCA 2003), in which the Second District Court of Appeal cited Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003), quashed, 901 So.2d 788 (Fla.2005), and, as it had done in Garcia, certified conflict with the First District Court of Appeal’s decision in Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003), approved by Garcia v. State, 901 So.2d 788 (Fla.2005). At the time the Second District Court of Appeal issued its decision in Turner, Garcia was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

In Garcia v. State, 901 So.2d 788 (Fla. 2005), this Court quashed the Second District’s decision in Garcia and approved Goodman. In response to an order of this Court dated January 27, 2006, the respondent, the State, has acknowledged that it “cannot show cause why this Court should not accept jurisdiction and remand for reconsideration in light of Garcia.” We accordingly grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in Garcia. In light of the current disposition of this case, Turner’s pro se motion for appointment of counsel is denied.

It is so ordered.

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


author: QUINCE, J.

text:
    STATE of Florida, Petitioner, v. Ramon ALVEREZ, et al., Respondents.
    No. SC03-671.
    Supreme Court of Florida.
    Oct. 12, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Judy Taylor Rush and Douglas T. Squire, Assistant Attorneys General, Daytona Beach, FL, for Petitioner.
    James S. Purdy, Public Defender and John M. Selden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
   QUINCE, J.

We have for review Alverez v. State, 840 So.2d 322 (Fla. 5th DCA 2003), in which the petitioner alleges the decision of the Fifth District Court of Appeal expressly and directly conflicts with Melvin v. State, 804 So.2d 460 (Fla. 2d DCA 2001), on the same question of law. At the time the Fifth District issued its decision in Alverez, the case of Kephart v. Kearney, 826 So.2d 517 (Fla. 4th DCA 2002), quashed sub nom. Kephart v. Hadi, 932 So.2d 1086 (Fla.2006), was pending review in this Court on a certified conflict with Melvin on the same issue. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

In Kephart, this Court addressed the same issue of whether the Jimmy Ryce Act requires the probable cause petition to be supported by sworn proof in the form of an affidavit or live testimony by a mental health professional who has evaluated the individual. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006). This Court concluded, “as did the Second District in Melvin and the Fourth District in Kep-hart, that the Act requires the probable cause petition to be supported by sworn proof.” Kephart, 932 So.2d at 1094. However, we disapproved the Fourth District’s opinion to the extent that Kephart required a mental health professional to provide the sworn proof accompanying the petition. Id. This Court held “that a probable cause petition accompanied by an affidavit similar to that found in an arrest warrant is sufficient under the Act.” Id. We quashed the opinion of the Fourth District in Kephart “to the extent it is inconsistent with this opinion” and approved the Second District’s opinion in Melvin. Id.

In response to this Court’s order to show cause dated June 13, 2006, respondents failed to show cause why we should not accept jurisdiction in the case, summarily quash the decision being reviewed and remand for reconsideration in light of our decision in Kephart. We accordingly grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Fifth District Court of Appeal for reconsideration in light of this Court’s decision in Kephart.

It is so ordered.

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