author: PER CURIAM. ANSTEAD, J.,

text:
    FLORIDA BOARD OF BAR EXAMINERS re M.B.S.
    No. SC05-1118.
    Supreme Court of Florida.
    Feb. 1, 2007.
    Rehearing Denied April 24, 2007.

      Michele A. Gavagni, Executive Director, and Robert G. Blythe, Deputy General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
    Harold R. Mardenborough, Jr. of Carr Allison, Tallahassee, FL, for Respondent.
   PER CURIAM.

This case is before the Court on M.B.S.’s motion for rehearing of this Court’s order denying him admission to The Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we reaffirm our previous decision to deny M.B.S. admission to The Florida Bar.

Procedural Background

M.B.S. submitted an application for admission to the Bar in March 2003. During the investigation into M.B.S.’s background, information was discovered that reflected adversely upon his character and fitness. After an investigative hearing before the Florida Board of Bar Examiners (Board) in September 2004, the Board served four specifications on M.B.S.

Specification 1 alleged M.B.S. had engaged in “illegal, irresponsible, or improper behavior” and had “demonstrated a lack of respect for the law and/or the rights of others.” The specification detailed nine instances of various conduct by M.B.S. from January 1990 through March 2002 for which he was arrested, charged, or sentenced for various criminal offenses.

In January 1990, M.B.S. was charged with the unauthorized use or possession of a Florida driver’s license after he used a false driver’s license to gain entry to a nightclub.

In November 1990, M.B.S. was charged with possession of cannabis and possession of drug paraphernalia after he was seen sharing a marijuana cigarette with friends in a parked car. M.B.S. entered a no contest plea on the marijuana charge and adjudication was withheld. The drug paraphernalia charge was dismissed. That same month, M.B.S. tried to sell two tablets of Valium to an undercover police officer in a bar. M.B.S. pled guilty, adjudication was withheld, and M.B.S. was placed on probation for two years, ordered to pay $700 in costs within two months, and ordered to perform twenty-five hours of community service.

In January 1992, M.B.S. and a friend misappropriated a briefcase. M.B.S. attempted to use a credit card from the briefcase to purchase gold, but ran away when he was asked for identification. He used a different credit card, also from the briefcase, to purchase over $1100 worth of gold from another store, signing the card owner’s name to the receipt. He later attempted to purchase another $1200 worth of gold from the same store, but was arrested after the salesperson called the police. He was charged with two counts of fraudulent use of a credit card, two counts of forgery of a credit card receipt, and three counts of grand theft. He pled guilty to two counts of fraudulent use of a credit card, one count of uttering a forged instrument, two counts of grand theft in the third degree, and one count of forgery. Adjudication was withheld. M.B.S. was sentenced to three years of probation and required to make restitution, to continue in therapy, and to pay $720 in court costs. The theft led to the revocation of M.B.S.’s probation on the illegal delivery of a controlled substance sentence. He was placed on three years’ probation, to run concurrently with the probation for theft of the briefcase.

In November 1994, M.B.S. was arrested and charged with disorderly conduct, resisting or obstructing a police officer, and obstruction by a disguised person. He pled no contest to the charges of disorderly conduct and resisting or obstructing an officer without violence. Adjudication was withheld.

In May 1997, M.B.S. was escorted from a nightclub and told, to leave the premises after he caused a fight. When he refused to leave, he was arrested and charged with trespassing. He pled no contest. Adjudication was withheld.

In March 2001, M.B.S. was arrested for driving over 100 miles per hour in a 55-mile-per-hour zone and swerving around other cars from lane to lane. He was charged with reckless driving. He was found guilty and sentenced to pay $785.25 in fines and court costs and to complete fifty hours of community service.

In March 2002, M.B.S. became involved in a fight in a nightclub. Police officers were forced to use mace to subdue him. He was arrested and charged with disorderly conduct.

Specification 2 alleged M.B.S. submitted false information on his law school application. He falsely claimed that his college attendance had not been interrupted for any reason when it had been interrupted at least twice. He stated he was a campaign advisor and event organizer for “quite a few well-known Congressman [sic], Governors as well as local representatives” for the Vermont Republican Party in the early 1990s, which was totally false. He claimed he had performed volunteer work, helping “at-risk” youth and participating in a community-policing project. This information was also a blatant lie. He provided false information about six of the eight prior jobs he listed, inventing some of them. He submitted false information concerning the arrests, charges, and criminal convictions, including failing to update his application when there were new occurrences.

Specification 3 alleged M.B.S. submitted false information to the Florida Supreme Court on an application to participate in a law school practice program by checking the blank in front of the statement: “There is nothing in my background which reflects adversely on my character” and misrepresenting facts for submission to this Court.

Specification 4 alleged M.B.S. submitted false information on his Application for Admission to The Florida Bar. With regard to his arrest in January 1992 on two counts of fraudulent use of a credit card, two counts of forgery of a credit card, and three counts of grand theft, M.B.S. stated that his roommates stole the credit card and gave it to him and that the card was only used once to purchase $400 worth of merchandise. The truth was that M.B.S. and a friend stole a briefcase. M.B.S. attempted to use a credit card from the briefcase to purchase gold, but ran away when he was asked for identification. He used a different credit card to purchase over $1100 worth of gold from another store, signing the card owner’s name to the receipt. He later tried to purchase another $1200 worth of gold from the same store, but was arrested after the salesperson called the police. He ultimately pled guilty to two counts of fraudulent use of a credit card, one count of uttering a forged instrument, two counts of grand theft in the third degree, and one count of forgery.

M.B.S. also denied ever serving time in jail, which was untrue. He served three months in jail after his probation on a charge of delivery of a controlled substance sentence was revoked. M.B.S. also failed to disclose that he was intoxicated at the time of his arrest in 1994.

A formal hearing on the specifications was held on May 20, 2005. The Board found that all of the specifications had been proven and were disqualifying. The Board, however, found that M.B.S. had proven his rehabilitation by clear and convincing evidence. The Board’s entire summary of M.B.S.’s rehabilitation evidence was that it “included character evidence from five witnesses and a total of 62 exhibits.” Based upon these findings and conclusions, the Board recommended that M.B.S. be conditionally admitted to The Florida Bar and serve a three-year probationary period with specified conditions. M.B.S. agreed to these conditions.

Because the Board’s findings concerning M.B.S.’s rehabilitation were conclusory and the initial conduct so clearly disqualifying and egregious, the Court reviewed the entire record. Based upon its review, the Court disapproved the Board’s conclusion that M.B.S. had proven his rehabilitation by clear and convincing evidence and issued an order denying M.B.S.’s application for admission.

M.B.S. moved for rehearing. The Court granted rehearing and directed the parties to “address all facts related to M.B.S.’s involvement in” the various acts of misconduct charged in the specifications and found proven by the Board. M.B.S.’s brief focused on the rehabilitation evidence presented and the recommendation that he be admitted. The Board provided the additional factual detail which the Court had requested on the disqualifying conduct, but also addressed in more detail the rehabilitation evidence upon which it based its recommendation for conditional admission. The Board outlined alcoholism and an obsessive-compulsive disorder (OCD). The Board concluded that M.B.S. exhibited symptoms of OCD and ultimately began self-medicating with alcohol, which led to alcohol dependence.

The record established that M.B.S. began participating in Alcoholics Anonymous (AA) in January 2004 and achieved sobriety on April 12, 2004. He executed a Florida Lawyers Assistance, Inc. contract on August 23, 2004. Hearing testimony established that M.B.S. attended at least one AA meeting per day, sometimes as many as two or three a day. M.B.S. testified that he does not attend so many meetings because he feels the need to drink, but because he wants to help others.

According to the Board, M.B.S. documented an extraordinary amount of community service. The director of special projects and litigation for Legal Aid in Broward County, Florida, Sharon Bouras-sa, testified on M.B.S.’s behalf by telephone. Bourassa has known M.B.S. for two years. M.B.S. performed volunteer work under Bourassa’s supervision. M.B.S. interviewed clients and did research for Bourassa in at least two cases. He also went into the field to make presentations on behalf of Legal Aid. Bourassa testified that if she had an opening, she would hire M.B.S., especially to work with inmates. A paralegal in the same office also testified on M.B.S.’s behalf and testified to M.B.S.’s hard work and caring and considerate attitude in dealing with clients.

A review of the additional argument and information provided by the parties, as well as a re-review of the record, confirms and reinforces the correctness of the Court’s earlier decision to deny M.B.S. admission to The Florida Bar. M.B.S. has a record of criminal conduct and arrests starting when he was eighteen and continuing to March 2002, his third year in law school. Equally disturbing is the evidence of M.B.S.’s egregious lack of honesty and candor on his law school application, on his application to participate in a law school practice program, and on his application for admission to the Bar, all of which were submitted under oath. In addition to lying to conceal or minimize the negative events in his past on these documents, M.B.S. created fictitious jobs, employers, and volunteer activities to improve his chances of being admitted to law school. His sworn testimony at the formal hearing before the Board convinces the Court that M.B.S. has failed to accept full responsibility for his actions, especially his lack of candor, by attempting to transfer some of the blame to his alcoholism, his parents, and the wording of one of the forms upon which he lied.

M.B.S.’s primary source of income at the time of the formal hearing was disability benefits, which he has received for his OCD since 1992. His OCD was in remission with medication at the time of the hearing, yet M.B.S. had not sought paid employment since September 2004. M.B.S. testified that even though he probably should not be receiving disability benefits, he had never disclosed the true facts. M.B.S.’s parents gave him money to supplement his social security disability income. His parents also paid to have his character witnesses flown to the hearing and were paying for his attorney.

Analysis

This Court has held that we will approve the Board’s findings of fact when they are supported by competent, substantial evidence in the record. Fla. Bd. of Bar Exam’rs re John Doe, 770 So.2d 670, 673 (Fla.2000); see also Fla. Bd. of Bar Exam’rs re R.L.W., 793 So.2d 918, 925 (Fla.2001). We also usually defer to findings based on a witness’s credibility, Doe, 770 So.2d at 674, and are cautious in rejecting the Board’s recommendation of whether to admit an applicant. R.L.W., 793 So.2d at 926.

However, we are not precluded from “reviewing the factual underpinnings of its recommendation, based on an independent review of the record developed at the hearings.” Fla. Bd. of Bar Exam’rs re R.D.I., 581 So.2d 27, 29 (Fla.1991) (quoting Fla. Bd. of Bar Exam’rs re L.K.D., 397 So.2d 673, 675 (Fla.1981)); see also Fla. Bd. of Bar Exam’rs re M.L.B., 766 So.2d 994, 996 (Fla.2000) (denying admission to an applicant, noting that most of the applicant’s rehabilitation efforts had occurred within one year of the rehabilitation hearing).

The egregiousness of the disqualifying conduct at issue here, including M.B.S.’s deplorable lack of truthfulness, the minimal rehabilitation in scope and depth, and the lack of any logical relationship between the misconduct and the evidence of rehabilitation compelled the Court to review the factual underpinnings of the Board’s recommendation in this case. Our review raised more than serious doubts as to M.B.S.’s character and fitness; rather than demonstrating, clearly and convincingly, his rehabilitation, it confirmed and reinforced the correctness of the Court’s original decision to deny M.B.S.’s application for admission.

M.B.S.’s conduct, until very recently, has been the antithesis of that which this Court requires for members of our profession to protect the public. He has a demonstrated thirteen-year history of lying (as recently as March 2003), stealing, breaking the law (as recently as March 2002), abusing alcohol (including as recently as April 2004), and violence (three bar fights, the last in March 2002). He has been sober for a little over two years after years of abuse. This may be a good and encouraging start, but is insufficient to provide the Court adequate confidence in his continued sobriety. Any conversion, no matter how sincere and true, needs to be buttressed by a history of good behavior which clearly and convincingly outweighs the past misconduct.

Most disturbing is the shocking lack of honesty and candor M.B.S. exhibited on his law school application to obtain admission, his application to be submitted to this Court to participate in a law school practice program, and his application for admission to the Bar, all of which were submitted under oath. He clearly lied at each step of the process in very significant ways. Truthfulness and candor are the most important qualifications for Bar membership. R.L.W., 793 So.2d at 926. M.B.S. lied in June 1999, when he completed his application for admission to law school, inventing fictitious jobs, employers, and volunteer activities, to improve his chances of admission. When he was asked why he had lied, he said: “I thought that if I had told the truth about all my past history, I wouldn’t have gotten into law school. And I really wanted to go to law school.” He lied again in April 2001, on his application submitted to this Court for participation in a law school practice program, when he swore there was nothing in his background that might reflect adversely on his character. When asked about this lie, M.B.S. said: “I was — I rationalized that question because of the way that it was worded.... Obviously if it had said have you ever been arrested, I would have had to answer differently or I would have been untruthful.” He lied again in March 2003 on his Bar application. He misrepresented or slanted the facts concerning his arrests, particularly the theft of the briefcase. He also denied ever serving time and failed to disclose that he was intoxicated at the time of his arrest in 1994.

The Court is not persuaded that M.B.S.’s alcoholism adequately excuses, explains, or really addresses M.B.S.’s lack of candor and honesty or that there is even a nexus between alcohol and the most significant aspects of his egregious conduct. It is one thing to deny that one has a problem with alcohol or to try to hide one’s consumption. It is another to fabricate jobs, employers, and volunteer activities to improve one’s chances of admission to law school or to blatantly lie to this Court and on the Bar application.

In Doe, 770 So.2d at 675-76, the Court explained: “[T]he requirement of proof of rehabilitation is firm and fixed. This is not a mere pro forma requirement, but one requiring meaningful substance.” Here, as in Doe, we find the proof of rehabilitation presented by the respondent lacks meaningful substance. The conditional admission process is intended to apply to persons who have an established history of conduct related to conditions clearly subject to rehabilitation who can enter a plan for some period of time after admission. Such a course of action can only be considered after rehabilitation has been established; the plan is to continue the process. Further, there must be a clear nexus between the disqualifying conduct and the condition subject to rehabilitation and the future plan. Conditional admission is not intended to replace the need for a clear and convincing record of rehabilitation.

Further, disqualifying conduct extending over a long period of time will require a longer period of rehabilitation to satisfy the Court that the applicant can maintain the high standards of the profession and the professionalism necessary after gaining admission. Finally, the more serious the disqualifying conduct, the greater the burden of proof of rehabilitation. M.L.B., 766 So.2d at 996; Fla. Bd. of Bar Exam’rs re D.M.J., 586 So.2d 1049, 1050 (Fla.1991). An applicant who engages in serious criminal conduct and breach of trust just days before entering law school and who thereafter demonstrates a further lack of candor must demonstrate behavior and character of the highest level subsequent to the disqualifying conduct to clearly and convincingly establish that admission is proper to a profession that requires its members to be absolutely above and beyond suspicion. M.L.B., 766 So.2d at 996; see also Fla. Bd. of Bar Exam’rs re C.A.M., 639 So.2d 612, 614 (Fla.1994); Fla. Bd. of Bar Exam’rs re C.W.G., 617 So.2d 303, 305 (Fla.1993); Fla. Bd. of Bar Exam’rs re R.B.R., 609 So.2d 1302, 1304 (Fla.1992); Fla. Bd. of Bar Exam’rs re J.H.K., 581 So.2d 37, 39 (Fla.1991).

When the nature and quantity of M.B.S.’s egregious behavior over thirteen years is weighed against the two-year period of sobriety and recovery activities and volunteer work shown here, the misconduct still vastly overwhelms and outweighs the rehabilitation. M.B.S.’s rehabilitation evidence will need to be of the highest order over a longer period than has been shown to overcome his past misdeeds.

The nature and timing of M.B.S.’s metamorphosis and rehabilitation are additional reasons for the Court’s caution. M.B.S. exhibited some of the most egregiously disqualifying conduct — lying to gain entry to law school, lying to this Court to be certified to participate in the law school practice program under chapter 11 of the Rules Regulating the Florida Bar, and lying to the Board on his Bar application— very recently. He only began attending AA meetings in January 2004, and only attained sobriety in April 2004. He entered into a contract with FLA, Inc. on August 23, 2004. A few weeks later, in September 2004, he participated in an investigative hearing before the Board. After numerous years of abusing alcohol, breaking the law, and lying, he suggests that he has turned his life around only a few months before investigative and formal hearings before the Board. He claims to have suddenly gained control over his OCD and alcoholism, after years of being totally unable to overcome the problems presented by either. The Court requires more convincing evidence that this is truly a turning point in M.B.S.’s life and not just another deception and deliberate ploy to gain admission. There is no evidence that M.B.S. was even under the influence of alcohol when he perjured himself on multiple occasions.

The sincerity and depth of M.B.S.’s new-found candor and honesty are another concern. His lies on his application to this Court for participation in a law school practice program are a good example. He checked the option that said there was nothing in his background to reflect adversely on his character. The choice he did not check read: “There is something in my background which might reflect adversely on my character.” (Emphasis removed.) M.B.S.’s explanation that he lied because of the way the form was worded is a self-serving rationalization that is diametrically opposed to that level of openness and candor which is a necessary prerequisite for admission to a profession that has honesty as its bedrock.

M.B.S.’s testimony convinces the Court that he has failed to accept full responsibility for his actions, especially his lack of candor, by attempting to transfer some of the blame to his alcoholism, his parents (for enabling him over the years), and the wording of one of the forms upon which he lied. M.B.S. attributed much of his misconduct to what he referred to as “character defects” and testified that some of these defects disappeared when he stopped drinking. Yet, there was nothing to suggest that M.B.S. was intoxicated when he made false statements under oath or that he was unaware of the truth. Such quibbling is inconsistent with a firm conviction that M.B.S. fully comprehends and intends to correct the error of his ways. Yet, he believes he is fit to assume the significant responsibility of serving the people of this state as an attorney.

The fact that M.B.S. was thirty-four years old at the time of the formal hearing before the Board, but was still financially dependent, at least in part, on his parents is further cause for caution. “Merely showing that an individual is now living as and doing those things he or she should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society.” Doe, 770 So.2d at 675 (quoting Fla. Bar Admiss. R. 3-13(g)).

At this point, M.B.S. has failed to demonstrate that he is now living as and doing those things he should have been doing throughout life, much less that he has undertaken a useful and constructive place in society. His primary source of income was disability benefits, which he has received since 1992. His OCD was in remission with medication at the time of the hearing, yet he had not sought paid employment. MJB.S.’s parents gave him money to supplement his income. They also paid to have the character witnesses flown to the hearing and for his attorney.

While it is to be hoped that M.B.S.’s proclaimed turnaround lasts, it is the Court’s obligation to protect the public and the profession by ensuring the fitness of every lawyer admitted to the Bar. Requiring M.B.S. to clearly and convincingly establish a longer record of success before allowing his admission best fulfills that obligation. The process and intent of conditional admission must not degenerate into a process that simply ushers undesirable candidates into The Florida Bar and foists them upon Florida’s citizens.

Conclusion

With all of the many reasons for caution discussed above, the Court disapproves the Board’s recommendation that M.B.S. be admitted. M.B.S.’s application for admission is denied at this time for the standard period of two years. If and when M.B.S. reapplies for admission, he must satisfy the concerns we express and must present objectively verifiable evidence of his continuing, uninterrupted sobriety during the interim period, as well as other suitable evidence of rehabilitation.

It is so ordered.

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

ANSTEAD, J., dissents with an opinion.

ANSTEAD, J.,

dissenting.

I would accept the Board’s recommendation for the very reasons articulated in the majority’s opinion, i.e., “we will approve the Board’s findings of fact when they are supported by competent substantial evidence in the record [and w]e also usually defer to findings based on a witness’s credibility.” Majority opinion at 508 (citations omitted). After paying lip service to these long-established principles, the majority first creates and then substitutes its own views in place of the findings of the Board that heard and considered the evidence firsthand. Unfortunately, the message we deliver to the Board today is that we will no longer defer to the Board’s findings on issues of fact and credibility. Because I conclude the majority fails to honor our precedent, I respectfully dissent.

To illustrate the degree of the majority’s deviation from precedent we need only to consider the short shrift the majority gives to the evidence of rehabilitation presented at the evidentiary hearing before the Board, compared to the extensive and comprehensive review of the evidence and findings by the Board. In a single brief paragraph, the majority first asserts that the Board found that evidence of “an extraordinary amount of community service” was presented at the hearing; the majority then, in effect, directly refutes this statement by characterizing the evidence presented as consisting only of the brief testimony of a legal aid attorney and paralegal. See majority opinion at 507-08. In the balance of the opinion the majority essentially substitutes its view of the credibility and weight of the evidence and rejects the Board’s firsthand assessment.

The summary dismissal by the majority of the evidence presented to the Board stands in sharp contrast to the Board’s extensive narration of this evidence in its findings:

Weighed against this disqualifying conduct is the extensive showing of rehabilitation presented by M.B.S. at his formal hearing. The Board concluded that M.B.S.’s showing of rehabilitation at the formal hearing clearly and convincingly established that he had rehabilitated himself from the disqualifying conduct.
The record establishes that M.B.S. suffered from alcoholism and a debilitating Obsessive-Compulsive Disorder (hereinafter “OCD”). M.B.S. first started exhibiting symptoms of OCD in 1986. M.B.S. describes how the OCD manifested itself in his Chronological Medical History (BE 3, Addendum A, pp. 1-2) M.B.S. provides an extensive description of all of the attempts to treat his OCD, both by way of counseling and medication. Id. Ultimately, M.B.S. started self-medicating by drinking alcohol. Id. at 3. M.B.S.’s use of alcohol increased to the point that he became alcohol dependent.
M.B.S. joined Alcoholics Anonymous in January 2004. (AE 2, p. 4) M.B.S. also executed a Florida Lawyers Assistance, Inc. contract on August 23, 2004. Id. M.B.S.’s sobriety date is April 12, 2004. (T 107; see also AE 23) Therefore, M.B.S. appeared at the formal hearing with 13 months of sobriety. As things stand now, were M.B.S. to be admitted conditionally with a three year period of probation as recommended by the Board, M.B.S. would have over five years of sobriety at the end of the conditional admission period, assuming he maintains his sobriety.
In addition to the steps taken by M.B.S. to address his substance addiction and his OCD, M.B.S. documented at the formal hearing an extraordinary amount of community service.
Sharon Bourassa, the director of special projects and litigation for Legal Aid in Broward County, Florida, testified by telephone. (T 19-20). Ms. Bourassa has known M.B.S. for two years. M.B.S. works in her unit under her supervision, and she knows M.B.S. both professionally and personally. (T-20-21)
M.B.S. interviews clients for Legal Aid, many of them former inmates and individuals on welfare. In addition, M.B.S. has done research for Ms. Bour-assa in a class-action case that will have significant impact concerning the support services available to the poor. (T 21) M.B.S. has also worked with Ms. Bourassa on a landfill case that impacts approximately 44,000 low income African Americans in the northwest section of Fort Lauderdale. (T 22)
In addition to working in their office, M.B.S. goes into the field and makes presentations on behalf of Legal Aid. Id. Ms. Bourassa trains her staff to not say “no” to people. M.B.S. has effectively absorbed that lesson, as he can relate to the type of clientele the Legal Aid office serves. (T 22-23)
Ms. Bourassa does not consider M.B.S. an intern anymore because of the work he has done and the amount of time he spends in the office. (T 23) M.B.S. has taken a lot of responsibility in the office, freeing up Ms. Bourassa and others to work on the class action case. (T 24) If Ms. Bourassa did not have M.B.S. working in her office, it would have a significant adverse impact on their ability to serve the clients they have. Id.
M.B.S. frequently advocates for the cases of certain clients to be taken. (T 25) Ms. Bourassa thinks M.B.S. will be very successful in criminal defense because he can really relate to the clients. (T 26)
M.B.S. takes a very good holistic approach to helping the office’s inmate clients. Ms. Bourassa testified that many of these clients would have recidivism problems if they did not work to address all of the issues in the inmate’s life. Ms. Bourassa described M.B.S.’s involvement in Alcoholics Anonymous as “very zealous.” (T 30)
Ms. Bourassa also described a situation where M.B.S. went on a retreat at an abbey. M.B.S. loved the monks’ lifestyle because they were very supportive, but their lives were very regimented, and that was something that M.B.S. needs in his life. This has caused M.B.S. to try to learn more about the Catholic religion. (T 30-31)
Ms. Bourassa described M.B.S. as a person with a very good heart. (T 31) She used the analogy of watching him turn into a butterfly from being a caterpillar over the past two years. She has worked in this area for 23 years, but this is only the third time she has agreed to testify on someone’s behalf. Id.
Ms. Bourassa described M.B.S. as a person of honesty and integrity. Ms. Bourassa was asked specifically about M.B.S.’s truthfulness, in light of the lack of candor described in the Specifications that M.B.S. admitted. Ms. Bourassa testified that as dishonest as M.B.S. was during his alcoholism, he has now become almost overly honest in recovery. (T32)
Ms. Bourassa testified that if she had an opening right now, she would hire M.B.S., especially to work with inmates. (T 46) Ms. Bourassa has a close working relationship with the public defender’s office, and she intends to get M.B.S. a job in that office if he is admitted to the Bar. (See also AJE 8, a letter from Ms. Bourassa)
Nikki Elliott has worked in the legal field for 18 years, and has been a paralegal in the Broward County Legal Aid office for four years, and has worked closely with M.B.S. for the past two years. (T 51) Ms. Elliott described M.B.S. as very caring, considerate, honest, loyal, dedicated, motivated, and hard-working. (T 52)
Ms. Elliott reiterated some of the testimony of Ms. Bourassa, also describing how M.B.S. works doing intake for the office, going in to the jails to inform inmates of the services available, and going to schools to tell students of the different programs that are available. (T 53) Ms. Elliott testified that M.B.S. works harder than some of their paid employees. (T 54) Ms. Elliott described a situation where M.B.S. convinced their supervisor to take the case of an individual wrongly accused of trespassing, and, with M.B.S. doing most of the leg work for one of the Legal Aid attorneys, their office was able to have the conviction removed. (T 54-56)
Ms. Elliott also described how M.B.S. went beyond what would normally be expected to help other clients of their office, such as getting an ex-offender into culinary school, and giving a client one of M.B.S.’s suits so the client could wear it to a job interview. (T 56-58) Ms. Elliott testified they have never had a volunteer like M.B.S. (T 59) (See also AE 11, a letter from Ms. Elliott)
Jeremy Garrón is an inactive attorney in New Jersey who now works moving furniture in Florida. (T 65, 71) Mr. Garrón did not stop practicing law in New Jersey because of any disciplinary action against him, but rather to try to deal with his alcoholism. (T 70) Mr. Garrón is a member of Alcoholics Anonymous and has a sobriety date of February 17, 2004. (T 65-66) Mr. Garrón first met M.B.S. approximately 13 months prior to the formal hearing at an Alcoholics Anonymous meeting. (T 66) Mr. Garrón testified that M.B.S. was hostile when he first came to Alcoholics Anonymous. (Id.)
Sometime after first meeting M.B.S. at the meeting, Mr. Garrón was introduced to M.B.S. outside the meetings, and Mr. Garrón and M.B.S. started to do things together socially. (T 67) Mr. Garrón has seen M.B.S. change from the person who was hostile to someone who is genuinely involved with the Alcoholics Anonymous program.
Mr. Garrón knows that M.B.S. attends Alcoholics Anonymous meetings every day, sometimes two to three meetings a day. (T 67-68) Mr. Garrón has also shared some church involvement with M.B.S. (T 68-69) Finally, Mr. Garrón described the support group M.B.S. has in Alcoholics Anonymous. (T 69) (See also AE 68, a letter from Mr. Garrón)
Robert Farrell worked for Farrell Advertising for 39 years, and was the vice president of sales for different companies. Mr. Farrell is a member of Alcoholics Anonymous. (T 76) Mr. Farrell has known M.B.S. for 16 months. (T 77) Mr. Farrell and M.B.S. have slowly become friends, and they share the same sponsor in Alcoholics Anonymous. (Id)
Mr. Farrell and M.B.S. call each other all the time and have a strong bond of friendship. Id. In spite of M.B.S.’s relative young age, he has been able to help a lot of older people in Alcoholics Anonymous. Mr. Farrell estimated that 90 per cent of the time M.B.S. spends in the program is geared toward helping other people. (T 78) M.B.S. has started to sponsor someone else in the program. (T 79) Mr. Farrell also described M.B.S.’s support group, a group that includes Mr. Farrell. (T 80) (See also AE 69, a letter from Mr. Farrell)
Michael Ruane gave unsworn testimony by telephone. Mr. Ruane is a Florida licensed real estate broker and has been a member of Alcoholics Anonymous for 15 years. (T 84) Mr. Ruane first met M.B.S. through their mutual involvement with Alcoholics Anonymous. (T 85)
Mr. Ruane is M.B.S.’s sponsor in Alcoholics Anonymous. Mr. Ruane took M.B.S. through the 12 steps of the program fairly quickly. M.B.S. has also gotten involved in service work, chairs multiple meetings, and is the secretary of one group. Id.
M.B.S. goes to at least one Alcoholics Anonymous meeting a day, and sometimes attends more than one meeting a day. (T 86) M.B.S. has become a mainstay of the Boca Pines Club of Alcoholics Anonymous. Id. Mr. Ruane talks to M.B.S. a minimum of one time a day: if he does not see M.B.S. during the day, he speaks with him at night. (T 87) (See also AE 46, a letter from Mr. Ruane)
M.B.S. also testified at the formal hearing about his recovery from alcoholism and his community service. With regard to his service to Alcoholics Anonymous, M.B.S. has been secretary to one group, and is currently the treasurer of another group. M.B.S. has chaired multiple meetings. (T 91)
M.B.S. also described how his involvement with Alcoholics Anonymous has helped him turn his life around. (T 91-93) M.B.S. is in the process of being confirmed into the Catholic Church, and feels that his religion has helped his recovery because it gives him a much more concrete higher power that he recognizes is in control. (T 93)
M.B.S. considers Ms work at Legal Aid as part of his recovery. (T 96-97) M.B.S. does not attend a lot of Alcoholics Anonymous meetings because he feels like drinking, but because he can help other people, and by helping them, he is helping himself. (T 97)
M.B.S. is heavily involved in a broad re-entry coalition, which attracted him through his work at Legal Aid. The list of community service organizations in which M.B.S. is involved includes The Dependency Division of the Seventeenth Judicial Circuit, Legal Aid of Broward County, Family, Inc., The Round Table Meetings of the Broward County Health and Rehabilitative Service Providers, The Broward County Re-entry Coalition for Ex-Offenders, Women in Distress, The Consortium of Faith-Based Organizations/Community-Based Organizations, The South Florida Human Rights Council, Neighbors for Neighbors — Rescue and Relief for Hurricanes Frances and Jeanne, judicial campaigns, Public Awareness Committee, Re-entry Summit Convention, making a presentation at Broward Success Institute, Operation Election Protection, American Civil Liberties Union, Elijah’s Fathering Ministry, meeting regarding North Broward Hospital District Policies, making a presentation at Broward Correctional Institute, Job Fair at Sheridan Tech, Trial Assistance, South Florida Human Rights Council Education Committee Meeting, T.J. Reddick Bar Association, and a meeting with State Attorney Michael J. Satz to discuss ways to reduce recidivism. (AE 2, pp. 5-8)
As this list would indicate, M.B.S. has, over the past two years, been committed on a full-time basis to performing community service. (T 116) He is able to do this in part because of gifts and/or loans from his parents and a Social Security disability he has been receiving for his OCD. (T 103-104)
M.B.S. testified that he now follows three rules: “if it is not mine, I don’t take it; if it is not true, I don’t say it; if it doesn’t feel right, I don’t do it.” (T 118)
In addition to the evidence described above, M.B.S. introduced into evidence some 72 exhibits, most being character letters. These exhibits also provided some documentary evidence of the extensive community service in which M.B.S. has engaged.

Response to Court Order at 19-28. Finally, again in stark contrast to the majority’s exclusive focus on the applicant’s misconduct, we must consider the Board’s conscientious attempt to carry out its responsibilities to evaluate both the extensive evidence of prior misconduct and the extensive evidence of rehabilitation:

The Board acknowledges the extensive misconduct described in the Specifications, and the serious questions this conduct raises in determining whether M.B.S. should be admitted to the Bar. It should be noted that the last time M.B.S. engaged in conduct that was disqualifying was in March 2003 (over two years prior to the formal hearing) when he provided some information on his Florida Bar Application that was false, misleading, or lacking in candor. Since that time, through two appearances before the Board for his investigative and formal hearings, M.B.S. has displayed absolute candor.
The Board was impressed with the extent of rehabilitation established by M.B.S. at his formal hearing. This was proven through documentary evidence, testimony of character witnesses, and the testimony of M.B.S. himself. The Board also acknowledges the high regard in which M.B.S. is held by those who testified on his behalf. The extent of M.B.S.’s involvement in the community is among the most impressive seen by the Board from an applicant attempting to establish rehabilitation.
The Board had the opportunity to observe the demeanor of M.B.S., and to evaluate his credibility. The Board was convinced that M.B.S. was credible, and the Board was further impressed with M.B.S.’s changed attitude about how he conducts himself.

CONCLUSION

M.B.S. appeared before the Board presenting what could be considered a classic case of extensive and serious disqualifying conduct that needed to be weighed against an impressive showing of rehabilitation. M.B.S. certainly had a very heavy burden to establish his rehabilitation considering the pervasive and serious nature of the disqualifying conduct found proven in the Specifications. As observed by the Supreme Court of New Jersey, “[a]n applicant’s attitude and behavior subsequent to disqualifying misconduct must demonstrate a reformation of character so convincingly that it is proper to allow admission to a profession whose members must stand free from all suspicion.” Application of Matthews, [94 N.J. 59] 462 A.2d 165, 176 (N.J.1983).
The Board ultimately concluded that M.B.S. has undergone this reformation of character, and that he clearly and convincingly established that fact at the formal hearing. The Board’s recommendation for a conditional admission for three years provides a further safeguard and check to ensure M.B.S. conducts himself properly as a member of the Bar. The Board respectfully requests that the Court affirm the Board’s recommendation of a conditional admission for M.B.S.

Response to Court Order at 28-30. Because I conclude the Board has correctly and conscientiously carried out its responsibilities I would approve the Board’s findings and recommendation.

      . M.B.S. used a false driver’s license to gain entry to a nightclub at eighteen. At nineteen he was charged with possession of marijuana and illegal delivery of a controlled substance. He stole a briefcase and used several of the credit cards inside to purchase or attempt to purchase thousands of dollars worth of gold merchandise. He was involved in several altercations in clubs and bars and had several encounters with law enforcement. He was arrested for reckless driving in March 2001 for swerving around cars and traveling 100 miles per hour in a 55-miles-per-hour zone.

      . Another example of M.B.S.’s tenuous grasp of the concept of complete candor is provided by the discrepancies in M.B.S.’s statements concerning his conversion to another faith. He offered two different stories concerning who gave him a rosary and confused significant terms, although he claimed to have studied the materials concerning his new faith thoroughly.

      . Consider the majority’s dismissal of the case presented by the applicant compared to the extensive findings of the Board:
      According to the Board, M.B.S. documented an extraordinary amount of community service. The director of special projects and litigation for Legal Aid in Bro-ward County, Florida, Sharon Bourassa, testified on M.B.S.’s behalf by telephone. Bourassa has known M.B.S. for two years. M.B.S. performed volunteer work under Bourassa’s supervision. M.B.S. interviewed clients and did research for Bouras-sa in at least two cases. He also went into the field to make presentations on behalf of Legal Aid. Bourassa testified that if she had an opening, she would hire M.B.S., especially to work with inmates. A paralegal in the same office also testified on M.B.S.’s behalf and testified to M.B.S.'s hard work and caring and considerate attitude in dealing with clients.
      Majority opinion at 507-08.


source: Caselaw Access Project

author: PER CURIAM. CANTERO, J.,

license: Public Domain

text:
    Alexander GALINDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1341.
    Supreme Court of Florida.
    Feb. 15, 2007.
    Rehearing Denied April 17, 2007.

      Bennett H. Brummer, Public Defender and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief Criminal Appeals, Michael E. Hant-man and Paulette R. Taylor, Assistant Attorney Generals, Miami, FL, for Respondent.
   PER CURIAM.

In Galindez v. State, 910 So.2d 284, 285 (Fla. 3d DCA 2005), the Third District Court of Appeal certified conflict with the First District Court of Appeal’s decision in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), which held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), decided after the defendant’s conviction was final, apply to a subsequent resentencing. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; Galindez v. State, 925 So.2d 1030 (Fla.2006) (granting review). As we explain below, we find that any failure to apply Apprendi and Blakely in this case constitutes harmless error. Accordingly, we need not determine whether these Supreme Court cases apply in such resen-tencings and we decline to resolve the conflict at this time.

I. APPRENDI AND BLAKELY AND THE CONFLICT IN THE DISTRICT COURTS

Below we first explain the holdings in Apprendi and Blakely and the pertinent facts of Galindez and briefly describe the conflict between the district courts. We then apply the Supreme Court’s recent decision in Washington v. Recuenco, — U.S. -, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), to the facts of this case and conclude that any error in applying Apprendi and Blakely is harmless.

A. Apprendi and Blakely and Sentencing

The Supreme Court’s decisions in Ap-prendi and Blakely have significantly affected criminal sentencing procedure at both the state and federal levels. In 2000, the Court held in Apprendi that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Four years later, the Court applied Apprendi in examining a sentence imposed upon the defendant’s guilty plea. Blakely, 542 U.S. at 301, 124 S.Ct. 2531. Addressing the State’s claim that the sentence fell within the statutory maximum, the Court stated the following:

Our precedents make clear, however, that the “statutory maximum” for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.

Id. at 303-04, 124 S.Ct. 2531 (citations omitted).

The Supreme Court recently applied the principles of Apprendi and Blakely to a determinate sentencing statute. Cunningham v. California, — U.S. -, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). California’s sentencing scheme granted trial courts discretion to sentence defendants to one of three terms of years. The middle term was the designated default, but the trial court could impose the upper term upon its own finding of aggravating factors that the Supreme Court concluded were “neither inherent in the jury’s verdict nor embraced by the defendant’s plea.” Id. at 860. Concluding that the middle term constituted the statutory maximum, the Court held that “[bjecause the [statute] allocates to judges the sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.” Id. at 859.

With these three decisions, the Court effectively eliminated most judicial factfinding that would increase a sentence. Except for the fact of a prior conviction, a judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum, unless that fact inheres in the verdict, the defendant waives the right to a jury finding, or the defendant admits the fact. Under Appren-di, Blakely, and Cunningham, such sentence-elevating facts must be found by a jury, not a judge, and established beyond a reasonable doubt.

B. The Facts of the Case

Based on the evidence, including the twenty-four-year-old Galindez’s admissions that he repeatedly had sexual relations with a twelve-year-old girl over a period of several months and impregnated her and the pregnant victim’s testimony confirming those facts, a jury found Galindez guilty of two counts of lewd and lascivious assault on a minor and one count of child abuse by impregnating the victim. See §§ 800.04, 827.04(3), Fla. Stat. (1997). Galindez’s sentencing scoresheet assessed 240 victim injury points (3 x 80) for sexual penetration, and the trial court sentenced Gal-indez to a guidelines sentence of thirty years in prison. The Third District affirmed. Galindez v. State, 728 So.2d 333 (Fla. 3d DCA 1999).

Galindez then filed a motion under Florida Rule of Criminal Procedure 3.800(a), alleging scoresheet error. See Galindez v. State, 831 So.2d 780, 780 (Fla. 3d DCA 2002). On rehearing, the district court held that Galindez’s scoresheet “erroneously reflect[ed] an assessment of 80 victim injury points” for his conviction on one of the lewd and lascivious assault counts. Id. Because “the conviction was for sexual union without penetration” and sexual penetration was not charged, the court held he should have been assessed only 40 points. Id. The Third District reversed and remanded for resentencing.

On October 30, 2003, the circuit court used a revised guidelines scoresheet assessing 200 victim injury points to sentence Galindez to 24 years in prison: 18 years on Count I (lewd assault on a minor); a consecutive sentence of six years on Count TV (lewd assault on a minor); and, concurrent with Count IV, a five-year sentence on Count V (child abuse by impregnation).

Almost immediately, Galindez filed a motion for resentencing, which the circuit court denied on November 21, 2003. Gal-indez appealed to the Third District. During the pendency of that appeal, he filed a motion in the circuit court under Florida Rule of Criminal Procedure 3.800(b), arguing for the first time that the assessment of victim injury points violated Apprendi because the jury did not make the victim injury findings. The circuit court denied the motion.

The following month, the United States Supreme Court decided Blakely. In considering Galindez’s appeal, the Third District stated that the “primary issue” was whether Apprendi and Blakely “require the invalidation of any points for penetration because they were assessed by the court, rather than by the jury.” Galindez, 910 So.2d at 284-85. The court held that to apply Apprendi and Blakely to the re-sentencing in this case would constitute their retroactive application and thus “alter the effect of a jury verdict and conviction.” Id. at 285. The court certified conflict with the First District’s contrary decision in Isaac.

C. The Conflict with Isaac

In light of our decision in Hughes v. State, 901 So.2d 837, 838 (Fla.2005), that Apprendi does not apply retroactively to cases that were final when it was decided, the Third District in Galindez held that to apply Apprendi and Blakely in a resen-tencing held after those opinions issued, when the conviction and original sentence were final before they issued, would constitute retroactive application. Galindez, 910 So.2d at 285. In the conflict case, however, the First District held the opposite. See Isaac, 911 So.2d at 814.

Isaac’s conviction was final in 1998, and his sentence was final the next year. See id. Subsequently, pursuant to a rule 3.800(a) motion, Isaac’s sentence was vacated, and he was resentenced. During the pendency of his appeal from resentenc-ing, he filed motions under Florida Rules of Criminal Procedure 3.850 and 3.800(b) raising claims of Apprendi error. See Isaac, 911 So.2d at 814; Isaac v. State, 826 So.2d 396, 396 (Fla. 1st DCA 2002). In considering the circuit court’s denial of Isaac’s 3.850 motion, the First District stated that the “heart” of Isaac’s claim was that, by making the factual determination of an escalating pattern of criminal activity in imposing a departure sentence at resen-tencing, the trial court violated Apprendi, as clarified by Blakely. 911 So.2d at 814. The First District concluded that

as Apprendi was decided prior to the appellant’s resentencing, the trial court was bound by its holding. Although this Court previously affirmed the appellant’s departure sentence on the basis that Apprendi does not apply so long as a sentence does not exceed the statutory maximum set forth in section 775.082, Isaac, 826 So.2d at 396, the statutory maximum has since been revealed to mean “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537. Therefore, a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Apprendi as explained by Blakely.

Id. at 814-15; accord Moline v. State, 31 Fla. L. Weekly D701, — So.2d -, 2006 WL 504028 (Fla. 1st DCA Mar.3, 2006), notice invoking discretionary review filed, No. SC06-482 (Fla. Mar. 13,2006).

Although these two district court decisions clearly conflict regarding the application of Apprendi and Blakely in resentenc-ings held after a conviction is final, we express no opinion on this issue. As we explain below, if it was error not to apply these cases at the resentencing hearing, the error is harmless.

II. APPRENDI AND HARMLESS ERROR

We agree with the State that even if Apprendi and Blakely apply to Galindez’s resentencing, any error is harmless beyond a reasonable doubt in this case. Although we have not previously addressed whether Apprendi error may be harmless, we have previously held that it is not fundamental error, and that the error must be preserved for appellate review in order to obtain relief. Hughes, 901 So.2d at 844 (“Finally, concerning Apprendi, we [have] held ... that a claim of Apprendi error must be preserved for review and we expressly rejected the assertion that such error is fundamental.”). Recently, however, the United States Supreme Court addressed the harmless error issue directly. Below, we address (A) the applicable harmless error test, and (B) our conclusion that any error is harmless in Galindez’s case.

A. The Applicable Harmless Error Test

The United States Supreme Court has recently addressed whether an Ap-prendi error can be harmless. In Washington v. Recuenco, — U.S. -, -, 126 S.Ct. 2546, 2549, 165 L.Ed.2d 466 (2006), the jury found the defendant guilty of assaulting his wife with a deadly weapon, which the information charged was “a handgun.” At sentencing, the judge found that the defendant was armed with a “firearm” and imposed the three-year mandatory sentence enhancement attendant to that finding, rather than the one-year enhancement attendant to the jury’s “deadly weapon” finding. On appeal, the State conceded that this violated Blakely and Apprendi, but argued the error was harmless. Id. at 2549-50. The Washington Supreme Court, however, had previously concluded that Apprendi/Blakely error could never be harmless. Id. at 2550 (quoting State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 205 (2005), which held that Blakely error was structural error requiring reversal). The Supreme Court granted review solely to determine whether harmless error analysis applies to such error.

The Court acknowledged that under Ap-prendi it “ha[d] treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt.” 126 S.Ct. at 2552. Accordingly, the Court found the case before it in Recuenco “indistinguishable from” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), explaining:

The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of “armed with a firearm” to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.

Recuenco, 126 S.Ct. at 2552.

Because the question of Appren-di/Blakely error also involved judicial fact-finding versus jury factfinding, the Court concluded that the harmless error analysis applied in Neder also applied to the error in Recuenco. Id. In Neder, the Court framed the test as follows: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Neder, 527 U.S. at 18, 119 S.Ct. 1827. The Court concluded that the same harmless error analysis developed in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and applied in cases concerning the erroneous admission of evidence under the Fifth and Sixth Amendments, also applied to infringement of the jury’s factfinding role under the Sixth Amendment. Neder, 527 U.S. at 18, 119 S.Ct. 1827. The Court explained that

a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is “no,” holding the error harmless does not “reflec[t] a denigration of the constitutional rights involved.” Rose [v. Clark], 478 U.S. [570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)].

527 U.S. at 19, 119 S.Ct. 1827. For example, in Neder, the jury instructions omitted the element of materiality, a fact which was improperly found by the judge in violation of the right to jury trial. Id. at 18, 119 S.Ct. 1827. The Court found that strong evidence supported the judicial finding and explained that “[i]n a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” Id. at 19, 119 S.Ct. 1827.

This Court has long applied Chapman’s harmless error analysis, which we outlined in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), to claims of failure to instruct on an undisputed element. See Glover v. State, 863 So.2d 236, 237-38 (Fla.2003) (approving the district court’s holding that the age of the defendant is an element of capital sexual battery but that any error in failing to instruct on this undisputed element was harmless); see also State v. Delva, 575 So.2d 643, 645 (Fla.1991) (stating that the failure “to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error” and is subject to the contemporaneous objection rule).

Finally, in Recuenco, the Supreme Court reversed the Washington Supreme Court’s holding that harmless error analysis does not apply'to Apprendi error. Accordingly, to the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Re-cuenco has superseded them. See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997) (holding that even where evidence regarding the use of a firearm is unrebut-ted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (holding that to enhance a sentence because of the defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used).

We now turn to the question of harmless error in this case.

B. Apprendi Error Is Harmless in this Case

At resentencing, the trial court assessed 200 points for victim injury with regard to Counts I and IV (lewd and lascivious assault) and Count V. Galindez contends that the trial court erred in assessing 80 points as to Count I. Count I charged that “on various occasions” in a four-month period, Galindez “committed an act defined as sexual battery” on a child “by placing his penis in union with ... and/or penetrating the vagina of A.M. (a minor) with his penis.” Galindez claims that because the charge was made in the alternative (and therefore the jury did not specifically find that penetration was involved), the trial court could assess only 40 points for victim injury. The exception in Blakely does not apply because Galindez did not waive the right to factfinding by a jury and did not admit the facts. Blakely, 542 U.S. at 303-304, 124 S.Ct. 2531. Therefore, assuming Apprendi applies to Galindez’s resentencing, for purposes of our harmless error analysis the issue is whether the failure to have the jury make the victim injury finding as to Count I contributed to the conviction or sentence— in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration. Cf. Delvalle v. State, 653 So.2d 1078, 1079 (Fla. 5th DCA 1995) (citing DiGuilio and holding that where the defendant alleged that error regarding a lesser included offense deprived him of a jury pardon, “[gjiven the evidence adduced at trial, the error also was harmless, since it is inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses”).

At trial the young victim, then pregnant by Galindez, testified that she and Galin-dez engaged in sexual intercourse on multiple occasions over a period of several months. Galindez’s confession confirming these facts, including his admission that they repeatedly had sexual intercourse, was admitted at trial. Finally, Galindez’s defense at trial was that the twelve-year-old victim consented. Thus, Galindez did not dispute the facts of the sexual relationship at trial, and he did not contest them at resentencing, either.

In light of the clear and uncontested record evidence of penetration regarding Count I, we hold that no reasonable jury would have returned a verdict finding there was no penetration. See Neder, 527 U.S. at 19, 119 S.Ct. 1827 (“[Wjhere a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.”). Accordingly, we find the error in this case harmless beyond a reasonable doubt.

III. CONCLUSION

For the foregoing reasons, we hold that harmless error analysis applies to Appren-di and Blakely error. Accordingly, we approve the result but not the reasoning of the decision below.

It is so ordered.

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

CANTERO, J., specially concurs with an opinion, in which WELLS and BELL, JJ., concur.

WELLS and BELL, JJ., concur in result only.

CANTERO, J.,

specially concurring.

I agree with the majority that any violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), would be harmless error in this case. I write to express my belief that whether Apprendi and Blakely can even be applied at the resentencing of a defendant whose conviction and original sentence became final before those cases were decided depends on whether a new jury can be empaneled to decide facts relevant to sentencing.

We already have held that Apprendi does not apply retroactively. See Hughes v. State, 901 So.2d 837 (Fla.2005). Presumably, neither does its offspring, Blakely. See, e.g., Hicks v. State, 905 So.2d 990, 991 (Fla. 3d DCA) (holding that because Apprendi does not apply retroactively, neither does Blakely), review denied, 917 So.2d 193 (Fla.2005); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004) (same), review denied, 914 So.2d 952 (Fla.2005); McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004) (same). Nevertheless, we have traditionally held that “resentencing should proceed de novo on all issues bearing on the proper sentence.” Morton v. State, 789 So.2d 324, 334 (Fla.2001) (quoting Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986)). Therefore, if new juries may be empanelled so that Apprendi and Blakely errors could be remedied entirely within the sentencing framework, then I would agree that applying those cases does not constitute a retroactive application. If, on the other hand, the resentencing court is restricted to the findings of the original jury at the time of the defendant’s (now final) conviction, then the “facts” that the sentencing judge may consider are frozen at the time of conviction — if the jury did not find it, the judge may not consider it. Under such an interpretation, Apprendi and Blakely no longer affect only the sentencing; they affect the conviction as well because the facts found at that time dictate the sentence. If that is the case, then applying Apprendi and Blakely to a resen-tencing would “alter the effect of a jury verdict and conviction.” Galindez v. State, 910 So.2d 284, 285 (Fla. 3d DCA 2005). Stated another way, if Apprendi and Blakely reverberate backward to the defendant’s conviction, applying those cases to defendants whose convictions already were final constitutes a retroactive application, contrary to our decision in Hughes. Such an approach also would be misguided as a matter of policy (retroactivity, after all, is more a policy question than anything else) because it penalizes the State for pursuing the conviction in accordance with then prevailing law without allowing it a remedy, and because it allows the defendant to benefit from a conviction he has shown no right to reopen.

Below I conclude that (I) if a new jury may be empanelled, the principle of de novo resentencing supports application of Apprendi and Blakely on resentencing; and that (II) if a new jury may not be empanelled, the principle of finality prohibits the application of Apprendi and Blakely on resentencing.

I. The Principle of De Novo Resentencing

We have consistently held that resen-tencing proceedings must be a “clean slate,” Preston v. State, 607 So.2d 404, 408 (Fla.1992), meaning that the defendant’s vacated sentence becomes a “nullity” and his “resentencing should proceed de novo on all issues bearing on the proper sentence.” Morton, 789 So.2d at 334 (quoting Teffeteller, 495 So.2d at 745). This means that the trial court must extend to the defendant the “full panoply” of existing procedural protections, State v. Scott, 439 So.2d 219, 220 (Fla.1983), including any new constitutional protections that have been recognized since the defendant’s original sentencing. Before Apprendi and Blakely, the law in this state, as we stated it in Lucas v. State, 841 So.2d 380 (Fla.2003), was that “a resentencing is a completely new proceeding. It therefore necessarily follows that a resentencing court is not limited by evidence presented (or not presented) in ... the original ... sentencing phase.” Id. at 387 (emphasis added) (citations omitted). Rather, both sides are entitled to produce additional evidence. See Mann v. State, 453 So.2d 784, 786 (Fla.1984) (explaining that at a de novo resentencing “both sides may, if they choose, present additional evidence”). In fact, because resentencing is de novo, the State was required to produce evidence on sentencing issues even if the State established the fact at the original sentencing. This was required whether or not the defendant disputed the issues in the prior sentencing proceeding. See, e.g., Tubwell v. State, 922 So.2d 378, 379 (Fla. 1st DCA 2006) (stating that because resentencing is de novo, “the state was not relieved of its burden to prove the prior offenses”); Rich v. State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002) (holding that at a resentencing, the State must again prove the basis for an enhanced sentence even though such evidence was produced at the original sentencing); Baldwin v. State, 700 So.2d 95, 96 (Fla. 2d DCA 1997) (stating that at resentencing, the defendant can challenge the prior convictions included on his score-sheet, even though he did not challenge them at the original sentencing).

In addition to the parties’ rights to present additional evidence and the State’s burden to produce evidence, we also have held that the trial court is not limited to its findings from the prior proceeding, but may make new findings and may even increase the sentence. See Morton, 789 So.2d at 334 (stating that a trial court has “no obligation to make the same findings as those made in a prior sentencing proceeding”); Roberts v. State, 644 So.2d 81 (Fla.1994) (permitting the resentencing court to include an additional prior conviction on the revised guidelines scoresheet).

The question here is whether Apprendi and Blakely, two recent cases establishing that sentence-enhancing facts must be found by a jury beyond a reasonable doubt, apply on resentencing even though they were issued after the defendant’s conviction became final. The defendant argues that the principle of de novo resen-tencing requires application of those decisions because, as we recently explained, “Apprendi affects only the procedure for enhancing the sentence,” Hughes, 901 So.2d at 843, and “does not affect the determination of guilt or innocence.” Id. at 841. As the defendant notes, we have traditionally included within the scope of de novo resentencing “all issues bearing on the proper sentence.” Morton, 789 So.2d at 334 (quoting Teffeteller, 495 So.2d at 745).

I agree with the defendant that, to the extent that Apprendi and Blakely affect only sentencing, under the principle of de novo resentencing those decisions apply to him. To ensure that result, however— that Apprendi and Blakely do affect only the sentencing — we must authorize the empanelling of new juries that could find any sentence-enhancing facts previously found by the judge. If such juries are not authorized, and the facts relevant to sentencing are frozen at the moment of conviction — that is, no further factfinding is permitted — then Apprendi and Blakely do in fact affect the conviction. Without a new jury, the resentencing court would be limited to those facts found by the original jury at the time of the conviction. The State, in turn, would be forever prejudiced by its reliance on the old rule — i.e., that sentence-enhancing facts could be found by the judge. When new facts cannot be found and when the parties cannot adapt to the new law, resentencing is not truly de novo. The principle that governs in such circumstances is not that of de novo resentencing, but rather that of finality, which (as I explain in Section II) generally prohibits a defendant from using new laws to obtain relief based on the process leading to a still final conviction.

I would gladly authorize the empanelling of new juries on resentencing so that defendants can receive the protection of Ap-prendi and Blakely without undermining the finality of their convictions. We already predicted in Hughes that new juries would be necessary to remedy Apprendi errors at resentencing, which was one of our reasons for barring retroactive application of that case. See 901 So.2d at 845 (“In every case Apprendi affects, a new jury would have to be empaneled to determine, at least, the issue causing the sentence enhancement.”). It is true that our existing rules do not provide a mechanism for empanelling a jury at the sentencing in a noncapital case. But we do have such a mechanism in death-penalty cases, see § 921.141(1), Fla. Stat. (2005), so the concept is far from foreign. The lack of a corresponding procedure for noncapital cases should not prevent us from creating one, given that it represents the best remedy for the constitutional violation.

When confronted with new constitutional problems to which the Legislature has not yet responded, we have the inherent authority to- fashion remedies. See, e.g., In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1133 (Fla.1990) (acknowledging “the inherent power of courts ... to afford us the remedy necessary for the protection of rights of indigent defendants,” but warning that courts may not “ignore the existing statutory mechanism”). To remedy violations of Apprendi and Blakely, we would be entirely justified in adopting a procedure for the empanel-ling of new juries on resentencing. Nor would we be the first court to do so. See Aragon v. Wilkinson, 209 Ariz. 61, 97 P.3d 886, 891 (Ct.App.2004) (stating that “although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so” and that on remand to resolve any Ap-prendi or Blakely problem, the trial court “may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence”); Smylie v. State, 823 N.E.2d 679, 684-85 (Ind.) (holding that to meet Blakely requirements, a jury may be convened to consider sentencing factors), cert. denied, — U.S. -, 126 S.Ct. 545, 163 L.Ed.2d 459 (2005); State v. Schofield, 895 A.2d 927, 937 (Me.2005) (“Although state law does not specifically provide for a jury trial on sentencing, our recognition of such a procedure is well within our inherent judicial power ....”); but see State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 209 (2005) (“This court will not create a procedure to empanel juries on remand ... because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court. To create such a procedure out of whole cloth would be to usurp the power of the legislature.”), abrogated on other grounds by Washington v. Recuenco, — U.S. -, - n. 4, 126 S.Ct. 2546, 2553 n. 4, 165 L.Ed.2d 466 (2006).

Nor would the Double Jeopardy Clause bar the impaneling of juries upon resen-tencing. In the death-penalty context, when a case is remanded for a new penalty phase we regularly allow a new jury to be empanelled. See, e.g., Preston, 607 So.2d at 408; Robinson v. State, 574 So.2d 108, 112 (Fla.1991); Rose v. State, 461 So.2d 84, 87 (Fla.1984). Outside of the capital context, the Double Jeopardy Clause is even less demanding with respect to sentencing. As the United States Supreme Court explained in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), “double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence,” id. at 136, 101 S.Ct. 426, because “a sentence does not have the qualities of constitutional finality that attend an acquittal.” Id. at 134, 101 S.Ct. 426. We, too, have concluded that “double jeopardy is not implicated in the context of a resentencing following an appeal of a sentencing issue.” Trotter v. State, 825 So.2d 362, 365 (Fla.2002) (citing Harris v. State, 645 So.2d 386, 388 (Fla.1994)). Of course, the facts found by a new jury at resentencing cannot conflict with any facts found by the original jury in connection with the defendant’s conviction. But in cases like this one, where the jury did not issue any finding concerning a sentence-enhancing fact, no double jeopardy concerns arise.

II. The Principle of Finality

Whereas the principle of de novo resen-tencing permits the application of new sentencing laws to reopened cases, the principle of finality prohibits retroactive application in most other circumstances. As we have explained, applying every new law to every old case would “destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state ... beyond any tolerable limit.” Witt v. State, 387 So.2d 922, 929-30 (Fla.1980). The principle of finality avoids those dire consequences by allowing retroactive application only when new rulings “so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of postconviction relief is necessary to avoid individual instances of obvious injustice.” Id. at 925. We have already evaluated Apprendi under the Witt standard and held that it does not apply retroactively. See Hughes, 901 So.2d at 837. It is safe to assume that Blakely, which “applied] the rule ... in Apprendi" 542 U.S. at 301, 124 S.Ct. 2531, will not apply retroactively, either. Thus, the defendant clearly has no right to retroactive relief under Apprendi or Blakely. The question here is whether applying those cases to a resentencing amounts to the same thing. The answer depends largely on when the principle of finality attaches. We have stated on several occasions that finality attaches when the defendant’s conviction (not the sentence) becomes final. See Johnson v. State, 904 So.2d 400, 407 (Fla.2005) (stating “that once a conviction has been upheld on appeal, the State acquires a strong interest in finality”); Goodwin v. State, 751 So.2d 537, 546 (Fla.1999) (“[0]nce a conviction has been affirmed on direct appeal ‘a presumption of finality and legality attaches to the conviction and sentence.’ ” (quoting Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993))). In fact, throughout our opinion in Hughes, we emphasized the affirmance of the conviction as the critical moment for retroac-tivity purposes. See 901 So.2d at 838 (“In this case, we consider whether a decision of the United States Supreme Court applies to defendants whose convictions already were final when that case was decided.”); id. at 839 (“Once a conviction is final, ... the State acquires an interest in the finality of the convictions.”); id. at 840 (“[T]he issue is whether such cases [as Apprendi ] can be applied to defendants whose convictions already were final when the decision was rendered.”).

The district court took seriously this language from Hughes. See Galindez, 910 So.2d at 285 (“Hughes’[s] focus on the finality of the conviction is very important” (quoting Isaac v. State, 911 So.2d 813, 816 (Fla. 1st DCA 2005) (Kahn, J., dissenting))). Because the defendant’s conviction became final before Apprendi and Blakely, and because he offered no legitimate basis for reopening it, the district court concluded that any application of those two decisions on resentencing would be impermissibly retroactive under the express language of Hughes. See id. at 285. The district court relied heavily on an earlier dissent by Judge Kahn, who observed that under our existing rules of criminal procedure “the factual matters underlying the guidelines departure sentences may not be submitted to a jury.” Isaac, 911 So.2d at 815 (Kahn, J., dissenting). Without a new jury, the district court reasoned, “applying [Apprendi and Blakely ] to this case would amount simply to a pardon of the defendant for an act he confessed to committing because the rules of the game were deemed to have changed after it was over.” Galindez, 910 So.2d at 285.

Certainly, if a sentencing jury can now be empaneled to decide the “sentencing facts,” then applying Apprendi and Blakely here would not implicate Galindez’s conviction and would therefore not constitute a retroactive application of those cases. On the other hand, if a new jury cannot be empanelled at resentencing, then applying Apprendi or Blakely to defendants whose convictions already were final is retroactive and therefore violates Hughes. In fact, applying Apprendi and Blakely without a new jury is even more disruptive than most retroactive applications. It creates a bizarre paradox: the State is faulted for failing to prove sentence-enhancing facts to the jury at a time when it was not required to do so, yet is barred from proving those facts to a jury once such a requirement has been created. The result is that defendants will obtain relief (i.e., lighter sentences than their behavior warrants) because of defects in the process leading to their convictions, despite the continued finality of those convictions. That is the very essence of retroactive application. It violates the principle of finality that we so adamantly defended in Hughes and contradicts its express language. See 901 So.2d at 838 (describing the issue as whether Apprendi “applies to defendants whose convictions already were final when that case was decided,” and then answering no).

III. Conclusion

I agree with the majority that any violation of Apprendi or Blakely would be harmless error in this case, and thus I join in affirming the denial of relief to the defendant. Eventually, however, we will have to decide whether Apprendi and Blakely apply to resentencing proceedings. Already other cases raising the same issue are pending in this Court. I believe the answer to the question is tightly bound with the procedures that would apply at resentencing. If a jury cannot be empaneled to decide the new sentencing facts, then applying Apprendi and Blakely to resentencings undermines the de novo nature of the proceedings and implicates the process leading up to a defendant’s still final conviction. It therefore affects more than just the sentencing; it affects the conviction itself, and applying Apprendi and Blakely amounts to a retroactive application, which we expressly prohibited in Hughes.

WELLS and BELL, JJ., concur.

      . Although in his rule 3.800(b) motion Galin-dez disputed the trial court’s assessing any victim injury points, he does not repeat that claim here.

      . Galindez’s confession, which was admitted at trial, would not be an "admission” as contemplated in Blakely. The admissions to which the Court alluded were facts the defendant admits in a guilty plea. Blakely, 542 U.S. at 304, 124 S.Ct. 2531; cf. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (noting that in determining the nature of the defendant’s prior conviction for sentence-enhancing purposes, the sentencer is "generally limited to examining the statutory definition [of the crime], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented ”) (emphasis added). Courts have included a defendant’s testimony at sentencing and stipulations at trial in this category. See, e.g., United States v. Collier, 413 F.3d 858, 860-61 (8th Cir.2005) (holding "no Sixth Amendment violation” occurred because the defendant "chose to testify [at sentencing] and admitted the facts upon which the court imposed sentence”); United States v. Champion, 234 F.3d 106, 110 (2d Cir.2000) (finding that at trial the defendant stipulated to the quantity of drugs involved in the crime and “he would have been subject to a mandatory minimum sentence of 10 years, in any event”). Galindez’s confession at arrest does not constitute an express agreement to a jury or judicial finding.

      . Lest these statements be dismissed as accidental, I note that the United States Supreme Court, which applies a different retroactivity standard, has also placed emphasis on the conviction. See Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality) ("Application of constitutional rules not in existence at the time a conviction becomes final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.") (emphasis added); see also id. at 301, 109 S.Ct. 1060 (defining a "new rule" as one “not dictated by precedent existing at the time the defendant’s conviction became final”) (emphasis omitted).


author: PER CURIAM.

text:
    FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Petitioner, v. DIVISION OF ADMINISTRATIVE HEARINGS, et al. Respondents.
    No. SC04-904.
    Supreme Court of Florida.
    April 5, 2007.

      Wilbur E. Brewton and Kelly B. Plante of Roetzel and Andress, P.A., Tallahassee, FL, for Petitioner.
    Roland J. Lamb of Morgan, Lamb, Goldman and Valles, P.A., Tampa, Florida; David S. Nelson and Michael Brown, Tampa, FL, for Respondents.
   PER CURIAM.

We have for review Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So.2d 1062 (Fla. 2d DCA 2004), in which the Second District Court of Appeal certified conflict with other district courts of appeal on the issue of whether an administrative law judge (“ALJ”) has the authority to determine issues related to notice in a Florida Neurological Injury Compensation Act (“NICA”) proceeding. We have jurisdiction. See art. V, § (3)(b)(4), Fla. Const.

We stayed this case pending disposition in Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Division of Administrative Hearings, 948 So.2d 705, 707 (Fla.2007) (“NICA v. DOAH ”), in which we ultimately held that “when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the ‘notice to obstetrical patients’ requirement of section 766.316, Florida Statutes (Supp. 1998).” We thus directed the respondents in the present case to show cause why we should not exercise our jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in NICA v. DOAH. Upon consideration of the respondents’ responses and the petitioner’s reply thereto, we have determined to do just that.

We accordingly grant the petition for review in the present case, quash the decision under review, and remand this matter to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in NICA v. DOAH.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, C.J., dissents.


text:
    FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, et al., Petitioners, v. BAYFRONT MEDICAL CENTER, INC., Respondent.
    No. SC05-369.
    Supreme Court of Florida.
    April 5, 2007.
    Wilbur E. Brewton and Kelly B. Plante of Roetzel and Andress, L.P.A., Tallahassee, Florida, Dino G. Galardi of Ferraro and Associates, P.A., Miami, FL, for Petitioner.
    David S. Nelson, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Ass’n, 893 So.2d 636 (Fla. 2d DCA 2005), in which the Second District Court of Appeal certified conflict with other district courts of appeal on the issue of whether an administrative law judge (“ALJ”) has the authority to determine issues related to notice in a Florida Neurological Injury Compensation Act (“NICA”) proceeding. We have jurisdiction. See art. Y, § (3)(b)(4), Fla. Const.

We stayed this case pending disposition in Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Division of Administrative Hearings, 948 So.2d 705,- 707 (Fla.2007) (“NICA v. DOAH ”), in which we ultimately held that “when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the ‘notice to obstetrical patients’ requirement of section 766.316, Florida Statutes (Supp. 1998).” We thus directed the respondent in the present case to show cause why we should not exercise our jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in NICA v. DOAH. Upon consideration of the respondent’s response and the petitioners’ reply thereto, we have determined to do just that.

We accordingly grant the petition for review in the present case, quash the decision under review, and remand this matter to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in NICA v. DOAH.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ„ concur.

LEWIS, C.J., dissents.


text:
    Chavis ZEIGLER, et al., Petitioners, v. STATE of Florida, Respondent.
    No. SC06-589.
    Supreme Court of Florida.
    April 5, 2007.
    Nancy A. Daniels, Public Defender and Phil Patterson and Robert D. Baker, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Bill McCollum, Attorney General, Robert R. Wheeler, Bureau Chief Criminal Appeals, and Daniel A. David, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in Zeigler v. State, 922 So.2d 384 (Fla. 1st DCA 2006), based on alleged express and direct conflict with State v. Diaz, 850 So.2d 435 (Fla.2003), Moody v. State, 842 So.2d 754 (Fla.2003), and Fitzpatrick v. State, 900 So.2d 495 (Fla.2005). Upon further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Daniel BROCCA, Respondent.
    No. SC03-860.
    Supreme Court of Florida.
    April 5, 2007.

      Bill McCollum, Attorney General, Tallahassee, FL, and Angel L. Fleming, Assistant Attorney General, Ft. Lauderdale, FL, for Petitioner.
    Richard G. Dunberg, Miami, FL, for Respondent.
   PER CURIAM.

We have for review State v. Brocea, 842 So.2d 291 (Fla. 3d DCA 2003), in which the Third District Court of Appeal cited State v. Hosty, 835 So.2d 1202 (Fla. 4th DCA 2003), rev’d, 944 So.2d 255 (Fla.2006), and certified the same question as was then pending review in this Court in Hosty. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since reversed Hosty and answered a rephrased certified question in a manner contrary to the decision presently on review. See State v. Hosty, 944 So.2d 255 (Fla.2006). We have thus determined and respondent does not contest that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Third District Court for reconsideration upon application of this Court’s decision in Hosty.

It is so ordered.

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

QUINCE, J., dissents.


author: PER CURIAM. PARIENTE, J.,

text:
    SPEEDWAY SUPERAMERICA, LLC, Petitioner, v. Erma DUPONT, Respondent.
    No. SC06-1617.
    Supreme Court of Florida.
    April 5, 2007.
    Susan Potter Norton of Allen, Norton and Blue, P.A., Coral Gables, Florida, and Brian Koji of Allen, Norton and Blue, P.A., Tampa, FL, for Petitioner.
    Wayne L. Allen of Allen and Arcadier, P.A., Melbourne, FL, for Respondent.
   PER CURIAM.

This Court initially accepted jurisdiction to review Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75 (Fla. 5th DCA 2006), a decision in which the Fifth District Court of Appeal certified the following question to be of great public importance:

DOES THE RULE ANNOUNCED IN MERCURY MOTORS EXPRESS, INC. v. SMITH, 393 So.2d 545 (Fla.1981), UNDER WHICH AN EMPLOYER CAN BE HELD VICARIOUSLY LIABLE FOR PUNITIVE DAMAGES BASED UPON THE WILLFUL AND WANTON CONDUCT OF ITS EMPLOYEE, APPLY TO PUNITIVE DAMAGE AWARDS UNDER SECTION 760.11(5), FLORIDA STATUTES?

Id. at 91. After further consideration, this Court concludes that jurisdiction was improvidently granted. Accordingly, this review proceeding is dismissed.

It is so ordered.

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

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

PARIENTE, J.,

concurring.

I concur in the Court’s decision declining to answer the certified question and dismissing this ease. The en banc decision of the Fifth District specifically asks whether our decision in Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), provides the correct standard for holding an employer vicariously liable for punitive damages pursuant to a provision in Florida’s version of Title VII of the Civil Rights Act of 1964, the Florida Civil Rights Act (FCRA), section 760.10, Florida Statutes (1997). See Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75, 91 (Fla. 5th DCA 2006). In Mercury Motors, this Court concluded that an employer may be held vicariously liable for punitive damages based upon the willful and wanton conduct of an employee acting within the scope of such employment, but only if there is a finding of independent fault on the part of the employer, such as ordinary negligence. 393 So.2d at 549.

However, the award of punitive damages against the employer (Speedway) in this case was not based on our decision in Mercury Motors. To the contrary, it is uncontroverted that the jury in this case was instructed on a standard for imposing punitive damages based on the federal law, specifically whether the employer (Speedway) “acted with malice, willfulness or callous disregard of the rights of plaintiff.” The special verdict form further explains the heightened federal standard for awarding punitive damages. In fact, it was the employer that requested the special instruction, which was given by the trial court without objection. Accordingly, the jury was never instructed on the more relaxed standard of Mercury Motors. On appeal, the Fifth District evaluated whether there was sufficient evidence to support the punitive damages verdict. See Speedway, 933 So.2d at 91. The Fifth District reviewed the sufficiency of the evidence under both Mercury Motors and the higher federal standard of willful and wanton behavior. Although the Fifth District found that it was a “close case,” it ultimately concluded that the evidence was sufficient based on the higher standard of willful and wanton behavior and affirmed the punitive damages award. See id. at 90-91.

The Fifth District certified the question of whether Mercury Motors was the proper standard for awarding punitive damages under section 760.10 as an issue of “great public importance in future like cases.” Speedway, 933 So.2d at 91. Certainly, the applicable standard for awarding punitive damages in claims under FCRA is an important question. However, the constitution also requires that the court “pass/' ] upon a question certified by it to be of great public importance,” art. V, § 3(b)(4), Fla. Const. (emphasis supplied), and the Fifth District never determined which standard of punitive damages applied. Because the jury was instructed to award punitive damages only upon a finding of willful and wanton behavior and the evidence was sufficient to sustain an award of punitive damages under this higher standard, it is questionable whether the certified question was actually passed upon by the Fifth District or determinative of the outcome of the case. See Pirelli Armstrong Tire Corp. v. Jensen, 777 So.2d 973, 974 (Fla.2001); Gee v. Seidman & Seid- man, 653 So.2d 384, 385 (Fla.1995). For this reason, I believe it is appropriate for the Court to dismiss this case.

ANSTEAD, J., concurs.