author: SUAREZ, Judge.

text:
    Willie WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-944.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.

      Charles G. White, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   SUAREZ, Judge.

The defendant appeals the denial of his motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

The defendant’s motion asserts that he should receive a new trial based on (1) newly discovered evidence, and (2) ineffective assistance of trial counsel. He was convicted at trial of unlawful possession of a firearm or weapon by a convicted felon, and pled nolo contendere to charges of carrying a concealed firearm, resisting an officer with violence, and unlawful possession of cannabis. At trial, two police officers testified that, during the police chase of the defendant, they witnessed him dispose of a gun by throwing it against a fence. A crowd of twenty to twenty-five people witnessed the incident. This Court affirmed the conviction on direct appeal in 1998. Defendant then filed his first post-conviction motion claiming ineffective assistance of counsel. This Court affirmed the trial court’s denial of that motion. In 2003, he filed the present post-conviction motion claiming newly discovered evidence and, once again, ineffective assistance of counsel. He filed an amended motion in 2004, to which he attached affidavits from two witnesses who claimed to have witnessed the chase and to have seen another individual throw down the gun that the defendant was accused of possessing.

The trial court, conducted an evidentiary hearing at which the two witnesses testified. The court denied the defendant’s motion, finding that the two witnesses’ testimony was not credible and that the testimony would not probably produce an acquittal on retrial. The trial court also denied, without a hearing, the defendant’s allegation that trial counsel provided ineffective assistance. We affirm the trial court’s rulings.

The two witnesses’ testimony is not “newly discovered” evidence for the purposes of post conviction relief. To qualify as newly discovered evidence, the evidence must have been unknown by the trial court, by the party, or by the counsel at the time of trial, and it must also appear that the defendant or his counsel could not have known about the evidence by exercising diligence. Jones v. State, 591 So.2d 911 (Fla.1991). The defendant argues that, had his attorney properly prepared for trial, he would have visited the scene and located the two witnesses in question. The defendant has defeated his claim of newly discovered evidence by conceding that his attorney could have located these witnesses through diligent investigation at the time of trial. By definition, then, the evidence does not qualify as “newly discovered” for post conviction purposes and the trial court was correct in denying the motion. See Downs v. State, 740 So.2d 506 (Fla.1999) (holding that evidence that the defendant knew about at the time of trial is “by definition” not “newly discovered”).

Even if the two witnesses had qualified as newly discovered evidence, the defendant’s claim would still fail because the testimony would not probably produce an acquittal on retrial. The witnesses both claimed to have been at the scene of the incident. One of the witnesses testified at the evidentiary hearing that he knew the defendant at the time of the incident and knew the name of the person he allegedly witnessed throw down the weapon but failed to provide that information to anyone until after he “ran into” the defendant while both were inmates in prison. However, neither of the witnesses came forward until almost two years after the defendant was convicted and after he had filed this post-conviction motion. We find there was substantial competent evidence for the trial court to find that this evidence is not of a nature that would probably produce an acquittal on retrial. Rutherford v. State, 926 So.2d 1100 (Fla.2006). Therefore, we affirm the trial court’s denial of the defendant’s claim for relief based on newly discovered evidence.

We also affirm the trial court’s summary denial of the defendant’s claims that his trial attorney was ineffective for failing to conduct adequate pretrial investigation. These claims are time-barred because they were filed more than two years after the defendant’s conviction and sentence became final. Fla. R.Crim. P. 3.850(b). Accordingly, the trial court did not err by denying these claims without an evidentiary hearing.

Affirmed.

      . The defendant filed the present motion beyond rule 3.850's two-year time limit. ■ He relies upon a claim of newly discovered evidence to avoid the rule’s time bar.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph STEVENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1769.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Rehearing Denied May 26, 2006.

      Gonzalez & Alvarez and Manuel Alvarez, for appellant.
    Charles J. Crist, Jr., Attorney General and Olga L. Villa, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and SUAREZ, JJ.
   PER CURIAM.

The question before us is whether the trial court erred in limiting voir dire on the defense of necessity. We conclude that the answer is yes, and therefore order a new trial.

Joseph Stevens was charged with carrying a concealed firearm and unlawful possession of a firearm by a convicted felon. The defense of defendant-appellant Stevens was that his life had been threatened and he armed himself for self defense.

Prior to trial, the court granted the State’s motion in limine preventing the defense from discussing the defense of necessity during voir dire. The court stated that allowing the defense to question the jury on the defense of necessity would be pre-trying the case and since it was unclear whether there was sufficient evidence to instruct the jury on such a defense, allowing discussion during voir dire would only confuse the jury if such an instruction was not ultimately given. The court permitted the defense to ask the prospective jurors if they had an open mind to defenses in general and whether they agreed that in life there are times when people feel they must take certain action and said action may be legally recognized as a defense to a criminal charge.

At trial, the defendant testified about the circumstances which had caused him to arm himself. At the conclusion of the trial, the court instructed the jury on the defense of necessity. The jury found the defendant guilty as charged and the court sentenced him to 7 years in prison followed by 5 years probation.

We conclude that the court abused its discretion in depriving the defendant the opportunity to discuss, or question the jury about, the defense of necessity during voir dire. See Lavado v. State, 492 So.2d 1322 (Fla.1986); Ingrassia v. State, 902 So.2d 357 (Fla. 4th DCA 2005) (the court may not preclude a party from inquiry into bias bearing on a matter that is at the heart of the defendant’s case). As the Fourth District said in an analogous situation:

In this case, it is evident from the record that although defense counsel was permitted to inquire as to the jurors’ understanding of the term entrapment in its ordinary sense, he was precluded from inquiring as to whether they were willing to accept that defense. As such questioning did not rise to a level of pretrying the facts or attempting to elicit a promise from the jurors as to how they would weigh that defense, the trial court’s denial of a proper inquiry denied appellant his constitutionally guaranteed right to a fair and impartial jury. See Lavado.

Walker v. State, 724 So.2d 1232, 1234 (Fla. 4th DCA 1999).

Therefore, the judgment and sentence are reversed, and we remand for a new trial.


text:
    Bradley W. BESHORE, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D05-2730.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Rehearing Denied May 17, 2006.

      E. David Prescott and Maggie L. Schultz of Rutledge, Ecenia, Purnell & Hoffman, PA., Tallahassee, Attorneys for Appellant.
    Ben F. Wilkinson, Steven M. Malono and Breck J. Brannen of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, Attorneys for Amicus Curiae Florida Association of Insurance Agents.
    Philip M. Payne and David J. Busch, Division of Legal Services, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

This is a timely appeal from a final order of the Department of Financial Services (“DFS”) revoking Appellant’s insurance agent’s license for various statutory violations. Appellant raised several issues on appeal, all of which are without merit. We write to express our agreement with DFS’s interpretation and application of section 626.901(1), Florida Statutes (2008). All other issues are affirmed without further discussion.

Appellant was charged by administrative complaint with several statutory violations for representing Meridian Benefit, Inc. (“MBI”) and selling MBI plans to employer clients. Appellant believed that the MBI plan was a self-funded Employee Retirement Income Security Act (“ERISA”) benefit plan with stop-loss coverage. DFS found that MBI was not authorized to transact insurance business in Florida and that Appellant had the burden of establishing that the MBI plan was ERISA-quali-fied and exempt from state regulation. Appellant failed to meet this burden. DFS found that Appellant violated section 626.901(1) by representing the MBI plan to his clients.

Section 626.901(1), Florida Statutes (2003), states:

No person shall, from offices or by personnel or facilities located in this state, or in any other state or country, directly or indirectly act as agent for, or otherwise represent or aid on behalf of another, any insurer not then authorized to transact such insurance in this state....

One of the first rules of statutory construction is that the plain meaning of the statute is controlling. Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 329 (Fla. 1st DCA 2002). If the language is clear and unambiguous, there is no need to engage in statutory construction. Id. The language of the statute clearly imposes an absolute bar against representing an unauthorized insurer.

Moreover, the supreme court has held that where the legislature has used a term in one section of a statute but omitted the term in another section, the court will not read the term into the sections where it was omitted. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). The legislature’s use of different terms in different sections of the same statute is strong evidence that different meanings were intended. Maddox v. State, 923 So.2d 442, 446 (Fla.2006). Section 626.901(2), Florida Statutes (2003), states:

If an unauthorized insurer fails to pay in full or in part any claim or loss within the provisions of any insurance contract which is entered into in violation of this section, any person who knew or reasonably should' have known that such contract was entered into in violation of this section and who solicited, negotiated, took application for, or effectuated such insurance contract is liable to the insured for the full amount of the claim or loss not paid.

(emphasis added). The fact that the very next section of the statute contains a knowledge element indicates that the legislature intended to impose different knowledge requirements in each section. Moreover, an administrative agency’s interpretation of its own laws is entitled to deference. See Public Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987 (Fla.1985).

Appellant relies on Ganter v. Department of Insurance, 620 So.2d 202 (Fla. 1st DCA 1993), to argue that there is precedent for reading a knowledge element into a statute. However, Ganter is distinguishable from the instant case. In Ganter, the appellant’s license was suspended based on the actions of an employee. This court recognized the principle “that one’s license to engage in an occupation is not to be taken away except for misconduct personal to the licensee.” Id. at 205 (citing Pic N’ Save Central Fla. v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages and Tobacco, 601 So.2d 245, 250 (Fla. 1st DCA 1992)). Based on that principle, this court found that an employer had to have knowledge of an employee’s actions before an employer’s license could be suspended based on the employee’s actions, even though a knowledge requirement was not in the statute. Id. In the instant case, Appellant is not being sanctioned for the actions of-an employee. DFS revoked his license because Appellant directly represented an unauthorized insurer. Thus, there would be no need to read a knowledge element into section 626.901(1) to preserve the principle that misconduct must be personal to the licensee.

We also note that even in some criminal matters, scienter is not always a requirement. See, e.g., Huff v. State, 646 So.2d 742 (Fla. 2d DCA 1994) (holding that scienter was not an element of a statute prohibiting the unauthorized sale of securities); Love v. State, 584 So.2d 645 (Fla. 3d DCA 1991) (holding that scienter was not an element of a statute prohibiting, the possession of gambling devices). Appellant and the Florida Association of Insurance Agents both argue policy reasons why section 626.901(1) should not be a strict liability statute. However, “[t]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968).

Appellant argues that it was error to require him to prove that the MBI plan was ERISA qualified. In revocation proceedings, DFS has' the burden of proving all of its allegations by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So.2d 932, 933 (Fla.1996). However, the administrative complaint never alleged that the MBI plan was or was not ERISA qualified, therefore, DFS was not required to address the issue of ERISA in its case-in-chief. As a general rule, the burden of proof is on the party asserting the affirmative of an issue. Espinoza v. Dep’t of Bus. & Prof'l Regulation, 739 So.2d 1250, 1251 (Fla. 3d DCA 1999). Contrary to Appellant’s argument, DFS never asserted in the affirmative that the MBI plan was ERISA qualified. Appellant was required to assert ERISA preemption as an affirmative defense and it was his burden to establish preemption. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (holding that federal preemption is ordinarily a federal defense). Therefore, the administrative law judge did not err in finding that it was Appellant’s burden to prove that the MBI plan was ERISA qualified.

Because DFS correctly interpreted and applied section 626.901(1), we affirm the revocation of Appellant’s license.

AFFIRMED.

BARFIELD, BROWNING and THOMAS, JJ., concur.


author: LEWIS, J.

text:
    W.R., mother of E.R., R.R. and A.R., children, Appellant/Cross-Appellee, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee/Cross-Appellant.
    No. 1D05-1486.
    District Court of Appeal of Florida, First District.
    April 21, 2006.

      Joyce Sibson Dove, Esq., Tallahassee, for Appellant/Cross-Appellee.
    Acelo I. Pedroso, Child Welfare Attorney, Tallahassee, for Appellee/Cross-Ap-pellant.
   LEWIS, J.

Appellant/cross-appellee, W.R., the natural mother of E.R., R.R., and A.R., seeks review of an order terminating her parental rights to E.R. and denying termination as to R.R. and A.R. She raises three issues on appeal, only two of which warrant discussion. The Department of Children and Families (“Department”) raises two additional issues on cross-appeal, neither of which warrants discussion. Appellant argues that the trial court erred in terminating her parental rights to E.R. pursuant to section , 39.806(l)(c), Florida Statutes (2004), because the Department failed to prove that her continuing interaction with E.R. would threaten his life, safety, well-being, or health and because it failed to prove that termination was the least restrictive means of protecting E.R. from serious harm. Because we agree with appellant as to both arguments, we reverse and remand for further proceedings.

In January 2003, the trial court granted a shelter petition filed by the Department, which alleged that the children had been abused, abandoned, or neglected or were in imminent danger of illness or injury as a result of abuse, abandonment, or neglect because the trailer home in which the family lived had no running water or heat, there was barely enough food to last one day while appellant would not receive more food stamps for over a week, the family slept on the cold, damp floor, there were only three blankets for the family to share, the children were cold and hungry, and appellant had violated a previously instituted safety plan. The Department subsequently filed a petition for dependency as to all three children, stating that it had received an abuse report containing the above allegations, that voluntary protective services had been unsuccessfully placed in the home, and that appellant had a learning disability, was unable to feed A.R. properly, and was unemployed and without income. In an order dated January 6, 2004, the trial court adjudicated the children dependent pursuant to appellant’s consent.

On July 16, 2004, the Department filed a Petition for Termination of Parental Rights and Permanent Commitment for Purposes of Subsequent Adoption as to all three children, alleging that termination was appropriate pursuant to section 39.806(l)(e), Florida Statutes, because appellant failed to substantially comply with her case plan, that termination was appropriate pursuant to section 39.806(l)(e), Florida Statutes, because despite the services offered to appellant by the Department, she did not have the capacity to parent the children or to appreciate - the circumstances that brought them into the Department’s care to decrease any prospective abuse or neglect, and that termination was in the manifest best interests of the children.

During the termination hearing, Dr. Marie Hume Gilford, a clinical psychologist who evaluated both appellant and E.R., testified that appellant had a full-scale IQ of sixty-seven and was mildly mentally retarded; because of her limited cognitive skills, low IQ, and overall life situation, appellant had a limited ability to parent her children. Dr. Gilford had diagnosed E.R-., whom she described as having significant behavioral and emotional problems, with combined type attention deficit hyperactivity disorder, adjustment disorder with disturbance of conduct, probable sexual abuse of child victim, and borderline intellectual functioning. She did not believe that any normal parent could handle E.R.’s problems and, thus, had recommended that he be considered for hospitalization. Dr. Gilford had no information suggesting that appellant was sexually abusive and stated that Developmental Disability services could be helpful to a person with appellant’s abilities and that she could learn parenting skills.

Jann Tucker-Pettway, the Guardian Ad Litem (“GAL”) for all of the children, testified on direct examination that she did not think that appellant could meet the needs of E.R., that she was not aware of any suitable custody arrangement with a relative other than appellant, and that appellant did not have the ability to provide the children with proper food, clothing, supervision, or medical care. She further testified that E.R. was adoptable but needed to be in a two-parent home where he was the youngest or only child that could provide the level of care required for his issues. On cross-examination, she testified that E.R. was not adoptable unless a “very, very special family” was found, that E.R. wanted to continue visiting with appellant, and that appellant visited the children for an hour each week and loved them very much. Although E.R. was in a level-two foster home at the time of the hearing, he could be institutionalized permanently as he had begun making suicidal threats and had been Baker Acted.

Appellant testified that she loved her children and that she could take care of R.R. in her home because she had no problem with her. However, she acknowledged that both E.R. and A.R. needed “stronger help than [she could] give [them].” She believed that she could take care of E.R. after he received additional treatment and got better if she could obtain additional financial assistance.

After the conclusion of closing arguments, the trial court orally pronounced that, as to E.R’., there was clear and convincing evidence that termination was in his best interest and that the Department had shown that appellant was unable to parent him or ever assume custody of him again. It reasoned that E.R. had such overwhelming psychological, emotional, and behavioral problems that appellant could not overcome while attempting to raise two other children, that E.R. would never get the care he needed from appellant, and that he needed a special environment and a family with the resources to take care of him. The trial court also noted that it “would be afraid for [E.R.] to grow up in the same house with the two sisters.” As to R.R. and A.R., the trial court stated that it did not feel that “we’ve tried everything we can with [appellant]” and, thus, that it would not terminate appellant’s parental rights as to them. The trial court found that the Department had not done anything malicious but that appellant deserved another chance before her parental rights as to R.R. and A.R. were terminated and concluded that the Department had failed to prove that termination was in the best interests of those children.

It was not until after the Department’s counsel advised the trial judge that his termination as to E.R. had to reflect a finding as to which statutory ground justified termination of appellant’s rights as to E.R. that the trial court stated that the ground provided in section 39.806(l)(c) fit better than the case plan failure ground because appellant was incapable of taking care of E.R.’s needs. The trial court subsequently addressed the factors to be considered in determining whether termination was in E.R.’s best interest pursuant to section 39.810, Florida Statutes (2004). In considering the love, affection, and emotional ties between E.R. and his parents, siblings, and other relatives and the degree of harm that would result from termination, the trial court stated, “I think if you balance out the fact that we’re terminating [E.R.] in the interest of the two girls and the degree of harm that him being in the house might do to these other two children, I think it answers that question.” Further, the trial court found that although E.R. may never find a home, he needed specialized care that appellant could not provide and that it did not think that E.R. was stable or would become more stable in foster care.

In its written order on the termination petition, the trial court again found that termination of appellant’s parental rights as to E.R. was warranted pursuant to section 39.806(l)(c) and denied termination of appellant’s rights as to R.R. and A.R. The order states in part that it was apparent that appellant loved all of her children but there was a great difficulty in trying to manage all three of the children with E.R. in the home, that there was a clear pattern of appellant’s inability to assume physical custody of or parent E.R., that the termination of parental rights as to E.R. outweighed the benefits gained from not terminating the rights as to him, and that there was a high likelihood that E.R. would require long-term specialized care and was not adoptable at the time the order was issued. Thus, the trial court terminated appellant’s rights as to E.R., committed E.R. to the care and custody of the Department for the purpose of subsequent adoption, readjudicated R.R. and A.R. dependent, and ordered that the Department provide appellant with a new case plan for reunification with the latter two children that included tasks addressing anger management and appellant’s developmental disability. This' appeal fob lowed.

Each of the elements required for termination of parental rights must be established by clear and convincing evidence. § 39.809(1), Fla. Stat. (2004). A trial court’s finding that evidence is clear and convincing is not to be overturned unless it may be said as a matter of law that no one could reasonably find the evidence to be clear and convincing. C.W. v. Dep’t of Children & Families, 814 So.2d 488, 492 (Fla. 1st DCA 2002); see also N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003) (stating that a finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evi-dentiary support).

Section 39.806(l)(c), Florida Statutes (2004), provides that the Department, the GAL, or any person with knowledge of the facts may petition for the termination of parental rights under the following circumstances:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates, that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

To terminate parental rights pursuant to section 39.806(l)(c), three sequential evi-dentiary requirements must be met: (1) the trial court must find that the child’s life, safety, or health would be threatened by continued interaction with the parent regardless of the provision of services, meaning that the provision of services would be futile or the child would be threatened with harm despite any services provided, (2) the Department must prove that there is no reasonable basis to believe that the parent will improve, and (3) the Department must show that termination is the least restrictive means of protecting the child from serious harm. M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222-23 (Fla. 1st DCA 2004); see also In re G.C.A., 863 So.2d 476, 479 (Fla. 2d DCA 2004).

Appellant argues that the Department failed to prove that her continued interaction with E.R. would threaten his life, safety, well-being, or health by clear and convincing evidence. We agree that the record is devoid of evidence that appellant’s continued involvement in a relationship with E.R. would threaten or harm him in any mariner and, thus, conclude that no person could reasonably find that the evidence clearly and convincingly established that termination of appellant’s parental rights to E.R. pursuant to section 39.806(1)(c), Florida Statutes (2004), was warranted. Although it is clear that returning any of the children to appellant’s custody would have been improper, appellant’s inability to parent E.R. and provide him with his every need does not mean that her continued interaction with him, in the form of visitation and telephone conversations, would threaten his life, safety, well-being, or health. The fact that appellant does not have the financial resources to provide E.R. with the specialized or institutionalized care that he requires is not a sufficient ground for termination of parental rights. See T.C.B. v. Fla. Dep’t of Children & Families, 816 So.2d 194, 197-98 (Fla. 1st DCA 2002) (stating that parental rights cannot be terminated simply because the parent is poor, uneducated, and without sufficient financial resources to care for her children in the manner the Department deems advisable or because she has not been a model parent); see also Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991) (stating that factors related to a parent’s lack of financial resources cannot support permanent termination of parental rights). Furthermore, the trial court failed to explain, and we do not see, how continued interaction with appellant would threaten E.R.’s life, safety, well-being, or health but would pose no threat to R.R. or A.R. Additionally, the trial court’s findings regarding E.R. demonstrate that the trial court largely based its termination of appellant’s parental rights as to him on his unique behavioral and psychological problems and on the effect that living with him might have on R.R. and A.R., neither of which is a sufficient ground for termination.

Appellant also argues that the trial court erred in terminating her parental rights to E.R. because the Department failed to prove that termination was the least restrictive means of protecting the child. We agree. Because parental rights constitute a fundamental liberty interest, the Department must establish that termination is the least restrictive means of protecting the child from serious harm. Padgett, 577 So.2d at 571. “The least restrictive means test in the context of termination of parental rights requires those measures short of termination be utilized if such measures will permit the safe reestablishment of the parent-child bond.” M.H., 866 So.2d at 228.

As appellant asserts, there is no indication in the record that terminating appellant’s parental rights as to E.R. was the least restrictive means of protecting him from harm. Although the trial court’s findings that there were no suitable relative placements available for E.R. and that his father was deceased are supported by the evidence, the trial court also found that there was a high likelihood that E.R. would require long-term specialized care and that he was not adoptable at the time the order terminating appellant’s parental rights was issued. The latter findings are supported by Dr. Gilford’s testimony that she did not believe that any normal parent could handle E.R.’s problems and the GAL’s testimony that E.R. would not be adoptable unless a very special family was found and that he could be permanently institutionalized because he had begun making suicidal threats and had been Baker Acted. Additionally, the trial court found that the evidence did not demonstrate that E.R. had an ability to form a bond with a parental substitute or that a relationship of any depth existed between E.R. and his custodian. As such, it does not appear that E.R. could be placed for adoption until his psychological and behavioral condition substantially improved. The termination order’s sole effect on E.R. was to sever his contact with appellant. Because appellant visited E.R. weekly and there was no evidence indicating that such visitation threatened E.R.’s life, safety, well-being, or health, we conclude that termination of appellant’s parental rights was not the least restrictive means available to the trial court. See L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1196 (Fla. 1st DCA 2002) (finding that termination of the appellant’s parental rights was not the least restrictive means of protecting the children where they would not be placed for adoption because the trial court dismissed the petition for termination of the father’s parental rights and, thus, the sole effect of the order terminating the appellant’s parental rights was to sever the contact between the children and the appellant, who visited regularly, and there was no evidence that such visitation would harm the children).

Accordingly, we REVERSE the trial court’s order to the extent that it terminates appellant’s parental rights to E.R. and REMAND for further proceedings. consistent with this opinion.

KAHN, C.J., and POLSTON, J., concur.


author: CORTINAS, Judge.

text:
    William RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2801.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Rehearing Denied May 26, 2006.
    Rennet H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before GREEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

The defendant, William Ramirez, appeals his conviction on the grounds that (1) the trial court abused its discretion in denying the defendant’s motion for a continuance, and (2) the double jeopardy clause prohibited the defendant from being convicted of aggravated battery.

On June 30, 2003, a witness observed the defendant choking the victim, Bonnie Montak, around her neck. The defendant threatened to kill the victim and shouted that he had a knife. A police officer and a hostage negotiator attempted to convince the defendant to release the victim but were unsuccessful. Thereafter, the SWAT team arrived and arrested the defendant. A crime scene technician collected the knife that the defendant used while holding the victim hostage. The victim had a number of lacerations on her chest, neck, and upper torso.

On July 21, 2003, the State of Florida (the “State”), filed an information charging the defendant with kidnapping with a weapon, and aggravated battery with a deadly weapon. Prior to trial, defense counsel requested a continuance on the ground that he was not prepared for trial. The trial court denied defense counsel’s motion for a continuance.

After the denial of the continuance, the State moved to exclude a defense expert witness from testifying at trial since defense counsel failed to give the State proper notice that the defense intended to call a doctor to try to establish that the defendant did not have the specific intent to commit the crimes of kidnapping and aggravated battery. The trial court granted the State’s motion because defense counsel failed to comply with Florida Rule of Criminal Procedure 3.216(e).

At the conclusion of the trial, the jury found the defendant guilty of kidnapping without a weapon and made a special finding that the defendant was guilty of aggravated battery during the commission of the kidnapping. The jury also found the defendant guilty on the separate count of aggravated battery. At the sentencing hearing on October 1, 2004, the trial court sentenced the defendant to twenty (20) years in prison for the kidnapping charge, but suspended entry of sentence as to the aggravated battery charge since the kidnapping charge was enhanced by the jury’s finding that the defendant committed an aggravated battery during the commission of the kidnapping pursuant to section 775.087, Florida Statutes (2003).

On appeal, the defendant argues that the trial court abused its discretion in denying the defendant’s motion for a continuance. The defendant further argues that the double jeopardy clause prevents the defendant from being convicted of aggravated battery since the defendant’s conviction was enhanced from a first degree felony to a life felony based on the fact that he committed an aggravated battery during the commission of the kidnapping pursuant to section 775.087, Florida Statutes (2003). The defendant relies on Bradham v. State, 657 So.2d 40 (Fla. 1st DCA 1995) to support his assertion that, if a defendant’s kidnapping conviction is based on the fact that an aggravated battery was committed during the commission of the kidnapping and no weapon was involved, the double jeopardy clause prohibits a separate conviction for the aggravated battery charge.

In the instant case, the jury specifically found that no wéapon was used during the commission of the kidnapping and the kidnapping was enhanced solely based on the fact that an aggravated battery was committed during the commission of the kidnapping. Additionally, the State concedes on this issue, agreeing that the defendant is being punished twice for the same aggravated battery, once for the actual aggravated battery conviction and once for the reclassification of the kidnapping charge to a life felony. Accordingly, we reverse and vacate the conviction on the aggravated battery count. We affirm on the other issue on appeal.

Reversed in part, affirmed in part.


author: FLETCHER, Judge.

text:
    Joe MASTRAPA, Bail Yes, Inc., and American Bonding Insurance Corp., Appellants, v. SOUTH FLORIDA MONEY LAUNDERING STRIKE FORCE, Appellee.
    No. 3D05-2889.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.

      Donet, McMillan & Trontz, Miami; John W. Mitchell, New York, NY, for appellants.
    Matthew Klecka, for appellee.
    Before FLETCHER, SHEPHERD, and CORTIÑAS, JJ.
   FLETCHER, Judge.

Joe Mastrapa, Bail Yes, Inc., and American Bonding Insurance Corp., appellants, appeal from an order which denied in part their petition for document production brought pursuant to Chapter 942, Florida Statutes (2005), the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. The appellants are all defendants in a criminal case presently pending in Supreme Court, New York County, State of New York.

Pursuant to Chapter 942 the New York court certified that certain documents held by the records custodian for the South Florida Money Laundering Strike Force were to be produced in New York. The certificate was presented to the (Florida) court — the Circuit Court for the 11th Judicial Circuit — and a proceeding begun, pursuant to section 942.02, in the Florida court. The Strike Force produced some of the documents but objected to the production of other documents (identified as those in paragraphs 2 and 7). The Strike Force contended that the issuance of a subpoena compelling the production of the paragraph 2 and 7 documents would operate as an undue hardship on the Strike Force as the information contained therein is extremely sensitive information concerning ongoing law enforcement investigations.

The Florida court determined that the Paragraph 2 and 7 documents were not material to the defense in the New York criminal proceeding and their production would be unduly burdensome to the Strike Force. Thus he denied the production request.

We agree that the production of the paragraph 2 and 7 documents would be unduly burdensome. The documents contain the operating structure, strategy, and techniques that the Strike Force employs to detect and combat narcotic trafficking and money laundering. As the Strike Force argues, forcing disclosure of the internal operating procedure of the Strike Force would “put the blueprint of a money laundering task force in the hands of an accused money launderer, and by corollary, the general public.”

It is clearly good public policy to keep such information where it belongs, with the Strike Force. Timoney v. City of Miami Civilian Investigative Panel, 917 So.2d 885 (Fla. 3d DCA 2005), while it did not deal with Chapter 942, dealt with an effort to have sensitive law enforcement documents produced:

“The Operational Plan is a comprehensive plan compiled by a criminal justice agency pertaining to the mobilization, deployment, and tactical operations involved in responding to the FTAA emergency. While it contains security plans from the past FTAA summit meeting, the plans are not unique to that event. It is clear that at least some of the procedures, general and specific, will continue to be used for future events. The language of Section 119.07(6)(d), leads us to believe that the legislature intended to keep such security information exempt after an immediate emergency passes.”

The circuit judge did not abuse his discretion. We therefore affirm the court’s order.

      . This is a civil proceeding, see Application of the People of the State of New York, 100 So.2d 149 (Fla. 1958), rev'd on other grounds, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). The order under review is a final one, thus reviewable by appeal.

      . Section 942.02, Florida Statutes, sets out the procedure for the State Court wherein the criminal proceeding is pending to seek to compel witnesses in another state to appear before the court.


author: BROWNING, J.

text:
    David A. INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4947.
    District Court of Appeal of Florida, First District.
    April 27, 2006.

      Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

      Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

David A. Ingram (Appellant) was charged with one count of possessing or aiding and abetting the possession of listed precursor chemicals (pseudoephedrine and Red Devil lye) with the intent to manufacture a controlled substance (methamphetamine), a second-degree felony in violation of sections 893.149 & 777.011, Florida Statutes (2004); and one count of possession of drug paraphernalia, a first-degree misdemeanor in violation of section 893.147(l)(b), Florida Statutes (2004). Victor Brooks Wilson, a passenger in Appellant’s vehicle, was named in the same information and was charged with the same offenses as Appellant, plus one count of actual or constructive possession of a controlled substance (methamphetamine), a third-degree felony in violation of section 893.13(6)(a), Florida Statutes (2004). The alleged offenses occurred on April 21, 2004. After the trial court denied Appellant’s legally dispositive motion to suppress evidence, he entered a plea of no contest to both counts, reserving the right to appeal the denial of his motion to suppress. He was' sentenced to three years’ probation, conditioned upon his serving the first nine months in the county jail. Appellant contends that the trial court reversibly erred in denying his motion to suppress. Concluding that the trial court reached the right result, we affirm the convictions and sentences. See Robertson v. State, 829 So.2d 901, 906-07 & n. 2 (Fla.2002) (describing the “tipsy coachman” principle of appellate law); Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

The motion to suppress alleged that after Sergeant Johnson stopped Appellant’s vehicle (the validity of which is unchallenged), the highway patrolman performed an illegal seizure and search of an item retrieved from Appellant’s, passenger, which led to the illegal arrest of the passenger, which was followed by an illegal search of the interior compartment of Appellant’s vehicle, and which culminated in Appellant’s arrest. Appellant sought to suppress the items found during the search. The State asserted that Appellant lacked standing to challenge the trooper’s actions, absent any reasonable expectation of privacy in the contents ..of his-passenger’s pockets. Defense counsel argued that if an owner’s vehicle is stopped, then a passenger also has standing to challenge the stop. Counsel argued that the converse is true too, so that Appellant had standing to challenge the search of his passenger. After the trial court delayed ruling on the question of Appellant’s standing, the State presented its witness.

Sergeant Johnson, a 21-year employee of the Florida Highway Patrol, testified as follows regarding the events that led to the searches. On April 21, 2004, he was patrolling State Road 73 when he observed an approaching 4-door Ford' pickup truck weaving within its own lane. As the trooper turned around, he saw the truck run completely off the road. He initiated a traffic stop and observed two men inside the truck. Appellant was the driver; Victor Brooks Wilson was the passenger. As the trooper approached the vehicle, he observed the two occupants moving around and apparently trying to conceal something in the center console. The passenger was looking back at the trooper through the rear glass of the truck.

When Sergeant Johftson asked Appellant to get out of the truck and produce his driver’s license and vehicle registration, Appellant seemed extremely nervous. In fact, once he stepped to the rear of the vehicle, Appellant had tc hold on to the tailgate to keep from falling. Although Appellant did not smell like alcohol, the trooper noticed Appellant had watery and bloodshot eyes, pinpoint pupils, and slurred speech. Additionally, the trooper testified he had observed white powder around Appellant’s nostril. He suspected that Appellant might be under the influence of some type of narcotic. Appellant was asked to remain standing behind the tailgate so the trooper could speak to the passenger.

As Sergeant Johnson approached the passenger’s side of the truck, he became suspicious because “.Mr. Brooks” [sic] was sitting in the front seat with his hand down inside the front of his pants. Simultaneously, the passenger appeared to be trying to observe what was happening through the rear window of the truck. When he was asked for identification, the very nervous passenger asked if he could step outside the vehicle. As the passenger exited the truck and patted himself down looking unsuccessfully for an I.D., the trooper noticed a small, round bulge in the passenger’s pants pocket. When the trooper inquired about the nature of the object, the passenger reached into his pocket and removed a very old glass Carmex lip balm jar with a metal cap or lid on it. The closed container was about the size of a quarter or half-dollar. From his extensive training and experience, Trooper Johnson knew that Carmex containers are very useful and popular among substance abusers for concealing cocaine, marijuana, and crystal methamphetamines because the glass jar will not absorb the product stored in it. When the passenger removed the Carmex container, he held it out in his open palm as if intending to present it to the trooper. When the trooper asked what was inside the container, the passenger said nothing; when the trooper asked if he could look inside it, the passenger held out the container even closer to the trooper. Trooper Johnson received the Carmex jar from the passenger, shook it, and detected something loose inside, although he knew that lip balm “doesn’t shake.” The trooper then unscrewed the lid and observed a white, powdery crystal substance that (given his training and experience) looked like crystal methamphetamine. He arrested the passenger and handcuffed him, left hand to left hand, to ’Appellant to prevent their escaping.

Sergeant Johnson then searched the inside compartment of the vehicle where the passenger had sat. The search revealed a Benzomatic butane lighter and numerous (about 150) match striker plates, ie., (according to the trooper) more than would be used by a typical smoker, scattered in the open center console. The trooper also found two ordinary prescription pill bottles (bearing Appellant’s name and indicating they both contained Xanax) in the center console. Without picking up or opening the containers, the trooper could see that they contained different types of pills. Upon opening one pill container, he saw what appeared to be a small, round pill, which he believed was Xanax. The second pill container had three different types of pills that were different from the pill in the first bottle. Trooper Johnson arrested Appellant for possession of prescription medicine based on the non-Xanax pills.

The trooper later found some razors or straight razor blades underneath other items in the open center overhead console. Each razor blade appeared to have red phosphorus from the striker plates on it. Most of the items recovered during the initial search were in plain view. After a back-up officer arrived, Appellant and the passenger were placed in separate patrol vehicles. A more thorough search of the back of Appellant’s truck revealed a set of clothes, underneath which Trooper Johnson found a vinyl bag believed to have been used in the manufacture of “crystal meth.” The trooper testified that the vinyl bag had a multi-layered, clear liquid in a plastic bottle that appeared to be “meth oil.” The case contained Red Devil lye, glass Pyrex bowls and jars, some unknown white substance, and 37 packs of 60-milli-gram pseudoephedrine pills, which are a common product of the manufacture of methamphetamine.

After finding these items inside the truck, Sergeant Johnson called a deputy from the Jackson County Drug Task Force, who completed the search and inventory. Appellant and the passenger were taken to the sheriffs office, where they were read their Miranda rights and were interviewed separately. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The passenger admitted possession of the recovered items and the manufacture of metham-phetamines with Appellant at the latter’s residence. Using that information, the authorities secured a search warrant for Appellant’s residence.

After Trooper Johnson testified, the attorneys argued the motion to suppress. Defense counsel asserted that the trooper lacked authority to seize and open the Carmex container, so that the subsequent searches of the passenger and the interior compartment of the truck were unauthorized as well. After challenging Appellant’s standing, the State argued, first, that the trooper’s observation of Appellant’s erratic driving and his demeanor and appearance afforded probable cause to arrest Appellant for reckless driving or for driving under the influence. The prosecutor contended that because probable cause existed to arrest anyone in the vehicle, law enforcement could properly search the occupants and the vehicle pursuant to New York v. Belton, 453 U.S. 454, 460,101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Second, the State argued that after the trooper asked what was in the small, round container in Appellant’s pants pocket, Appellant voluntarily consented non-verbally to the search by removing the item from his pocket and holding it out in his open palm as if presenting it to the trooper. The trial court ruled that Appellant had standing to challenge the evidence taken during the search. The motion to suppress was denied.

First, we address the threshold issue of whether Appellant had standing to challenge the seizure and search of evidence allegedly in violation of the Fourth Amendment. This question was preserved in the trial court by the State’s timely, specific challenge. In moving to suppress evidence on the grounds asserted, Appellant had the burden to show not only that the seizure and search of his passenger’s Carmex lip balm jar and the search of the surrounding space in the passenger compartment were illegal, but also that he had standing to object to the seizure and search. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); State v. Bostick, 745 So.2d 496, 497 (Fla. 1st DCA 1999).. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” See Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (quoting Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)). In Rakas, 439 U.S. at 134, 99 S.Ct. 421, the United States Supreme Court stated that “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s ... property has not had any of his Fourth Amendment rights infringed.” The High Court in Rawlings noted that after Rakas, the essential question to be resolved in determining whether a defendant has standing to challenge an alleged unreasonable seizure and search is “whether governmental officials violated any legitimate expectation of privacy held by [the defendant].” Rawlings, 448 U.S. at 106, 100 S.Ct. 2556; see Minnesota v. Carter, 525 U.S. 83, 88 & 91, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). “[Normally A cannot challenge the legality of the search of B even when the search produces information used to convict A” United States v. Johnson, 380 F.3d 1013, 1015 (7th Cir. 2004); see Rawlings, 448 U.S. at 106, 100 S.Ct. 2556 (stating that record supported lower tribunal’s conclusion that petitioner had no reasonable expectation of privacy in companion’s purse when it was searched and, thus, petition could not challenge validity of search that disclosed controlled substances).

A defendant in strikingly similar circumstances to Appellant’s situation asserted standing in Thomas v. State, 596 So.2d 518 (Fla. 5th DCA 1992). The police stopped a vehicle driven' by Thomas. When Thomas and a passenger/co-defendant exited the vehicle,.the officer noticed a bulge in the passenger/co-defendant’s pants, whereupon a search of the passenger/co-defendant revealed a package containing cocaine. The passenger/co-defendant stated that Thomas had handed her the package of cocaine. See id. After being charged with possession, the passenger/co-defendant successfully moved to have the evidence suppressed on the ground that the search was illegal, but the trial court denied Thomas’s motion to suppress the evidence illegally seized from the passenger/co-defendant, on the ground that Thomas lacked any reasonable expectation of privacy in the package of contraband and, thus, had no standing to challenge the search of the passenger/co-defendant. Thomas was con: vieted and appealed. See id. at 518-19. Noting that a defendant does not automatically have standing to suppress evidence merely because it was obtained in violation of the Fourth Amendment, see Rakas, 439 U.S. at 133-34, 99 S.Ct. 421, and Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Fifth District Court agreed with the finding that Thomas lacked standing. See 596 So.2d at 519; see also Hodge v. State, 629 So.2d 973, 974 (Fla. 5th DCA 1993) (holding that defendant/driver who consented to vehicle search after a valid traffic stop had no reasonable expectation of privacy in contents of passenger’s purse, which was searched as passenger exited vehicle, revealing cocaine; therefore, defendant lacked standing to raise passenger’s constitutional challenge in order to suppress evidence against defendant). Because Appellant had no reasonable expectation of privacy in the contents of his passenger’s pants pocket, Appellant lacked standing to challenge the search of the passenger. Accordingly, the trial court erred in determining that Appellant did have standing.

Assuming arguendo that Appellant had met his burden to prove a reasonable expectation of privacy in the contents of his passenger’s pocket, we would affirm the trial court’s denial of Appellant’s motion to suppress anyway for either of two grounds. “Review of a Florida motion to suppress is a mixed question of law and fact, yoked to federal law.” Butler v. State, 706 So.2d 100, 101 (Fla. 1st DCA 1998); see Art. I, § 12, Fla. Const.; Perez v. State, 620 So.2d 1256 (Fla.1993). In reviewing the denial of a motion to suppress, we view the evidence and its reasonable inferences in a light most favorable to affirming the trial court’s ruling. See Harford v. State, 816 So.2d 789, 791 (Fla. 1st DCA 2002). First, the traffic stop was unchallenged,, and the record clearly demonstrates that Sergeant Johnson was justified in stopping Appellant after observing his vehicle weaving and then running completely off the road. See Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (stating that traffic stop was reasonable where officers had probable cause to believe petitioners had violated traffic code). The trooper properly asked Appellant to step out of the vehicle and to produce his driver’s license and vehicle registration. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Pierre v. State, 732 So.2d 376, 377-78 (Fla. 2d DCA 1999). In addition to the erratic driving, Appellant’s overall appearance and demeanor and the presence of a white powder around his nostril gave this seasoned trooper probable cause to arrest Appellant. See § 901.15, Fla. Stat. (2004); Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (stating “probable cause” exists where “facts and circumstances” within officer’s knowledge, and of which he or she had “had reasonably trustworthy information,” are sufficient of themselves “to warrant a man of reasonable caution in the belief that an offense has been or is being committed”); Login v. State, 394 So.2d 183, 185 & 188 (Fla. 3d DCA 1981) (noting that detective’s training and experience led him to recognize, as cocaine, two rings of white residue around shaking suspect’s nostrils and provided probable cause for arrest for possession of cocaine). Appellant’s suggestion that the trooper’s failure to arrest him specifically for driving under the influence somehow tainted the grounds for the arrest and incidental search ignores the principle that “[sjubjeetive intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813, 116 S.Ct. 1769; see Devenpeck, 543 U.S. at 153-54, 125 S.Ct. 588.

One of the recognized exceptions to the warrant requirement is a search incident to a valid arrest. See Belton, 453 U.S. at 457, 101 S.Ct. 2860. The United States Supreme Court in Belton held that as a contemporaneous incident of a lawful custodial arrest of the occupant of a motor vehicle, an officer . can search the person arrested and “the immediately surrounding area,” including “the passenger compartment” of the motor vehicle and the contents of any containers (whether open or closed) located inside the passenger compartment. Id. at 457, 460-63 & n. 4, 101 S.Ct. 2860; see Union v. State, 660 So.2d 803, 804 (Fla. 2d DCA 1995). “The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest.” United States v. Robinson, 414 U.S. 218, 237-38, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (Powell, J., concurring). The drugs, paraphernalia, and precursor chemicals for manufacturing methamphetamine were found during a lawful search of the passenger compartment of Appellant’s truck after Appellant’s passenger was arrested.

Indeed, the second ground for affirming the trial court’s ruling on the motion to suppress relates to the trooper’s contact with the passenger. When Sergeant Johnson approached the passenger’s side of the truck to ask for identification, the very nervous passenger asked if he could step outside. As the passenger patted himself down in an unsuccessful search for identification, the trooper noticed the small, round bulge in the passenger’s pants pocket. When the trooper inquired as to the nature of the object, the passenger reached into his pocket, removed the well-worn Carmex lip balm container, and held it out in his open palm as if presenting it to the trooper. When the trooper asked what was inside the jar, the passenger said nothing, but when the trooper asked if he could look inside the jar, the passenger moved the object even closer to the trooper. A valid consent is one of the well-established constitutional exceptions to the warrant requirement. See Schneckloth v. Bustamante, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000). “The consent may be in the form of words, gesture, or conduct.” United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976); United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004). The State met its burden to prove that the passenger’s consent (through his gesture or conduct) for the trooper to receive and open the Carmex container was freely and voluntarily given, and not “mere acquiescence to police authority.” Smith, 753 So.2d at 715; United States v. Reid, 226 F.3d 1020, 1026 (9th Cir.2000). We find no affront to the Fourth Amendment in Sergeant Johnson’s then shaking the container and hearing loose contents (uncharacteristic of lip balm), unscrewing the lid, and viewing what was inside. Convinced from his training and experience that the white, powdery crystals inside resembled methamphetamine, the trooper arrested the passenger and conducted a lawful Belton search of the passenger compartment of the vehicle incident to the arrest. Because Appellant showed no reasonable expectation of privacy in the contents of his passenger’s pocket and, thus, lacked standing, and the searches were proper, the trial court correctly denied Appellant’s motion to suppress.

Appellant contends that Trooper Johnson’s credibility was compromised by his acknowledgment on cross-examination that he had not noted in his written post-arrest report that he had observed white powder around Appellant’s nostril. Given the direct testimony that the trooper did observe the white powder around Appellant’s nostril, and the trooper’s failure to mention this observation specifically in the written report, the trial court believed the trooper and thereby properly exercised its authority to weigh the evidence and determine witness credibility. See Demps v. State, 462 So.2d 1074, 1075 (Fla.1984). We AFFIRM the judgment and sentence.

BARFIELD and THOMAS, JJ., concur.


author: KAHN, C.J.

text:
    ST. VINCENT’S MEDICAL CENTER, INC., Appellant/Cross-Appellee, v. MEMORIAL HEALTHCARE GROUP, INC. d/b/a Memorial Hospital Jacksonville and Fawcett Memorial Hospital, Inc., Appellees/Cross-Appellants.
    No. 1D05-1727.
    District Court of Appeal of Florida, First District.
    April 28, 2006.

      John R. Beranek, Stephen C. Emmanuel, and C. Gary Williams, of Ausley & McMullen, Tallahassee, for Appellant/Cross-Appellee.
    Stephen A. Ecenia, J. Stephen Menton, Richard M. Ellis, of Rutledge, Ecenia, Purnell & Hoffman, P.A., Tallahassee, for Appellees/Cross-Appellants.
   KAHN, C.J.

St. Vincent’s Medical Center appeals a declaratory judgment holding section 408.036(3)(Z), Florida Statutes (2004), unconstitutional. Finding the enactment to be a special law disguised as a general law, the circuit court struck down the law pursuant to article III, section 10 of the Florida Constitution. We affirm. We also affirm the circuit court’s summary denial of the equal protection claim presented on cross-appeal.

BACKGROUND

In late 2001, St. Luke’s Hospital sought permission from the Agency for Health Care Administration (“Agency”) to replace its existing hospital with a new facility to be built on the grounds of the current Mayo Clinic in Jacksonville. St. Luke’s had an open-heart surgery program at its existing location. Unlike most hospitals in the state, St. Luke’s also utilized a “closed-staff’ personnel model, meaning that its medical personnel were salaried staff. Based upon evidence presented below, St. Luke’s is one of only two hospitals in the state with both an open-heart surgery program and a closed-staff personnel system.

Concurrent with St. Luke’s request, St. Vincent’s Medical Center sought permission from the Agency to establish a new hospital with an open-heart surgery program in the facility to be vacated by St. Luke’s. State law required new hospitals to submit a Certificate of Need (“CON”) with the Agency in order to establish an open-heart surgery program.

During the 2003 regular session, the Legislature passed, and the Governor signed into law, chapter 2003-274, Laws of Florida. The law appears as section 408.036(3)(i), Florida Statutes (2004), part of the Health Facility and Services Development Act. The new statute created an exemption from the CON requirement for any adult open-heart surgery program meeting the statute’s criteria. These criteria are paramount to our analysis:

(l) Notwithstanding any other provisions of this chapter to the contrary:
1. For an adult open-heart-surgery program to be located in a new hospital provided the new hospital is being established in the location of an existing hospital with an adult open-heart-surgery program, the existing hospital and the existing adult open-heart-surgery program are being relocated to a replacement hospital, and the replacement hospital mil utilize a closed-staff model. A hospital is exempt from the eertifi-cate-of-need review for the establishment of an open-heart-surgery program if the application for exemption submitted under this paragraph complies with the following criteria:
a.The applicant must certify that it will meet and continuously maintain the minimum Florida Administrative Code and any future licensure requirements governing adult open-heart programs adopted by the agency, including the most current guidelines of the American College of Cardiology and American Heart Association Guidelines for Adult Open Heart Programs.
b. The applicant must certify that it will maintain sufficient appropriate equipment and health personnel to ensure quality and safety.
c. The applicant must certify that it will maintain appropriate times of operation and protocols to ensure availability and appropriate referrals in the event of emergencies.
d. The applicant is a newly licensed hospital in a physical location previously owned and licensed to a hospital performing more than 300 open-heart procedures each year, including heart transplants.
e. The applicant must certify that it can perform more than 300 diagnostic cardiac catheterization procedures per year, combined inpatient and outpatient, by the end of the third year of its operation.
f. The applicant’s payor mix at a minimum reflects the community average for Medicaid, charity care, and self-pay patients or the applicant must certify that it will provide a minimum of 5 percent of Medicaid, charity care, and self-pay to open-heart-surgery patients.
g. If the applicant fails to meet the established criteria for open-heart programs or fails to reach 300 surgeries per year by the end of its third year of operation, it must show cause why its exemption should not be revoked.
h. In order to ensure continuity of available services, the applicant of the newly licensed hospital may apply for this certificate of need before taking possession of the physical facilities. The effective date of the certificate of need will be concurrent with the effective date of the newly issued hospital license.
2. By December 31, 2004, and annually thereafter, the agency shall submit a report to the Legislature providing information concerning the number of requests for exemption received under this paragraph and the number of exemptions granted or denied.
3. This paragraph is repealed effective January 1, 2008.

§ 408.036(3)(£), Fla. Stat. (2004) (emphasis added).

On November 7, 2003, Appellees filed a complaint against the Agency in circuit court. In essence, Appellees alleged that St. Vincent’s Medical .Center is the only hospital in the state that can take advantage of this law. The complaint argued the law was a special law in violation of the Florida Constitution and the law violated equal protection by treating one hospital differently from all others in the state. St. Vincent’s Medical Center intervened in the action. The Agency has not appeared in this appeal.

At a summary judgment hearing, the trial judge ruled that factual determinations should be made on whether the law could apply to a hospital other than St. Vincent’s. Accordingly, the judge set the case for a non-jury trial. St. Vincent’s did, however, receive summary judgment on the equal protection claim.

Both sides presented expert testimony on the contested issue. Dr. Ronald Luke, Appellant’s expert in health care planning and health care economics, testified that, within the realm of possibility, “many possible combinations of actors, hospitals, physician groups and health plans” in Florida might qualify' for an exemption before the statute sunsets on January 1, 2008. Countering Dr. Luke’s testimony, Dr. Todd Sagin, an expert in medical staff issues and hospital relations, and Patty Greenberg, an expert in health planning, testified for the Appellees. Dr. Sagin and Ms. Greenberg testified that no other hospitals could reasonably qualify for the exemption in the time frame allowed by the statute, July 2003 through January 1, 2008.

On March 9, 2005, the trial judge rendered the final declaratory judgment. Concluding' that only St. Vincent’s could take advantage of the statute, the judge explained:

After considering all of the evidence and the arguments of counsel, it is concluded that the Exemption Provision is a special law passed in the guise of a general law, and is therefore unconstitutional because it was not adopted in accordance with the requirements of Article III, Section 10 of the Florida Constitution. The Exemption Provision is nothing more than a description of the situation involving St. Vincent’s and St. Luke’s. The Court concludes that the constitutional requirements governing special laws cannot be avoided by merely utilizing generic language in a complicated classification scheme that is intended to address a special circumstance.

The trial judge found no other constitutional . infirmities and stated that if ■ the Legislature had simply adhered to the notice requirements of article III, section 10, the statute would have passed constitutional muster.

ANALYSIS

We first consider the appropriate standard of review. In many instances, an evidentiary hearing is an implicit requisite for determining whether a statute may potentially apply to other parties. Compare Fla. Dep’t of Bus. & Prof'l Reg., Div. of Pari-Mutuel Wagering v. Gulfstream Park Racing Ass’n, 912 So.2d 616, 620 (Fla. 1st DCA 2005) (finding the question of whether statute could apply to others is, in part, an issue of fact), review pending, No. SC05-2130, with Dep’t of Bus. Reg. v. Classic Mile, Inc., 541 So.2d 1155, 1157 (Fla.1989) (determining factual findings unnecessary as all parties agreed it was facially impossible for statute to apply to others) and Ocala Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 731 So.2d 21, 25-26 (Fla. 1st DCA 1999) (finding tiebreaker provision of statute made it facially impossible for others to obtain the single license available). Here, the trial court properly conducted an evidentiary hearing. Accordingly, the final declaratory judgment has both factual findings and legal conclusions. Under the familiar maxim, we review findings of fact under the competent substantial evidence standard, while legal conclusions are reviewed de novo. See Gulfstream Park, 912 So.2d at 620 (“We accept the trial court’s findings of fact and apply the de novo standard of review only to the legal conclusion drawn from the facts.”). Arguing for de novo review, St. Vincent’s urges this court to determine independently whether Appellees failed to prove their case beyond a reasonable doubt. See Lakeland Reg’l Med. Ctr., Inc. v. Fla. Agency for Health Care Admin., 917 So.2d 1024, 1030 (Fla. 1st DCA 2006) (stating that a statute will not be found unconstitutional unless proven invalid beyond a reasonable doubt). Nevertheless, we review the circuit court’s factual findings for legal sufficiency, not evidentiary weight, just as we would in a criminal case. See, e.g., Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (“Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.”).

We move to the question of whether the statute in question is a special law or a general law. This determination boils down to whether the statute may prospectively apply to parties other than St. Vincent’s. See Ocala Breeders’, 731 So.2d at 25 (“If it is possible in the future for others to meet the criteria set forth in the statute, then it is a general law and not a special law. This test applies even if only one entity currently qualifies under the statute and even if the House and Senate members voting on the bill were aware that it would benefit only one specific entity.” (citations.omitted)); see also Biscayne Kennel Club, Inc. v. Fla. State Racing Comm’n, 165 So.2d 762, 763 (Fla.1964) (“Because all of the classifications effected by this act are made on the basis of factors which are potentially applicable to others and which are not purely arbitrary in relation to the subject regulated or the conduct authorized, we conclude that the current effect of the law stipulated to by the parties is not controlling and it must be sustained as a general act of uniform operation.” (footnote omitted)). We recently enunciated the standard for determining whether a statutory class is open or closed:

We acknowledge that the class is not closed for the purpose of this analysis merely because it is unlikely that it will include anyone else. However, we could not say that th'e class is open merely because there is a theoretical possibility that some day it might include someone else. That approach would undermine the constitutional requirements for the adoption of special laws. We conclude from the applicable precedents that the proper standard is whether there is a reasonable possibility that the class will include others.

Gulfstream Park, 912 So.2d at 622 (emphasis added); see also Biscayne Kennel Club, 165 So.2d at 764 (“[S]ome [additional parties] may reasonably be expected to come within the class covered”).

The circuit court judge applied the correct legal standard in his analysis by considering present and prospective applicability of the statute. As the judge remarked during the evidentiary hearing:

[A]t least at this time nobody has applied or there’s no evidence of that. That, wouldn’t be the test, would it? The test would be if there’s some potential for the statute to be applied to any other hospital.

The circuit court heard extensive, conflicting expert testimony regarding the statute’s potential applicability to parties other than St. Vincent’s before the sunset date of January 1, 2008. In the final declaratory judgment, the court accepted the testimony of Appellees’ experts as more credible. The court noted:

[Tjhere is only one hospital or group of hospitals, St. Vincent’s and St. Luke’s, that can currently take advantage of the Exemption Provision.

The court then considered whether another party could prospectively qualify for the exemption before the sunset date. Such consideration is, we think, implicit in paragraph 13 of the judgment:

The' Respondent and the Intervenor also suggest that the repealer date in this statute could potentially be extended by a future legislature; however, the Court must review and evaluate the statute based upon the.existing provisions and cannot presume that the legislature will make future amendments. ,

After considering all of the evidence, the circuit court judge determined that no hospital, other than St. Vincent’s, could qualify for the statutory exemption. The court’s findings of fact are supported by competent substantial evidence, particularly the testimony of Dr. Sagin and Patty Greenberg. The circuit court also correctly applied the law when it concluded there is no reasonable possibility the exemption could currently or prospectively apply to any other party before it sunsets on January 1, 2008.

Finally, we find no merit to Appellees’ equal protection argument on cross-appeal. Accordingly, we AFFIRM the decree in all respects.

LEWIS and POLSTON, JJ., concur.


text:
    Anthony TAYLOR, Appellant, v. LABOR FINDERS and Ace USA, Appellees.
    No. 1D05-2732.
    District Court of Appeal of Florida, First District.
    April 28, 2006.
    John W. Wesley of Woodburn S. Wesley & Assoc., Ft. Walton Beach, for Appellant.
    James H. Wyman of Hinshaw & Culbertson LLP, Ft. Lauderdale, for Appel-lees.
   PER CURIAM.

In this workers’ compensation case, the Judge of Compensation Claims (JCC) adopted as the claimant’s average weekly-wage (AWW) the determination of the employer/earrier (E/C) that such should be based on a 20-hour workweek. Nothing in the record supports this determination, however. The parties agree that the claimant had worked 32 hours during his four days of employment and that section 440.14(l)(d), Florida Statutes (2003), governs the calculation of the AWW in this case. Similar to the situation in Able Body Temporary Services v. Lindley, 867 So.2d 499 (Fla. 1st DCA 2004), we find the JCC abused her discretion in adopting the E/C’s determination of the AWW. See also, e.g., Jackson v. Hochadel Roofing Co., 657 So.2d 1266, 1267 (Fla. 1st DCA 1995) (“When there is no contractual provision governing the number of hours the claimant, will work per week, the JCC must calculate the AWW based upon the actual wages earned.”); Orange-Co of Fla. v. Waldrop, 454 So.2d 724, 725 (Fla. 1st DCA 1984) (“[T]here is nothing in the record indicating a contract of employment for any period of time. Waldrop’s full-time weekly wages, therefore, should have been determined using her actual earnings as set out in the wage statement furnished by the E/C and admitted into evidence without objection.”). Accordingly, we reverse and remand for the JCC to use the claimant’s actual wages in determining his AWW.

REVERSED and REMANDED.

KAHN, C.J., WOLF and BENTON, JJ., concur.


author: CASANUEVA, Judge. KELLY, Judge,

text:
    Chris A. WEGNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2486.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      William D. Sites, Lakeland, for Appellant.
    . Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Chris A. Wegner appeals from his convictions for receiving computer transmissions of descriptive or identifying information about a minor for the purpose of sexual conduct with a child, in violation of section 847.0135(2)(d), Florida Statutes (2000), and for showing obscene material to a minor, in violation of section 847.0133, Florida Statutes (2000). We reject Mr. Wegner’s assertion that the trial court committed three reversible errors and affirm. One issue, however, merits discussion. Mr. Wegner contends that section 847.0135(2)(d) is unconstitutional in two primary ways. According to Mr. Wegner’s theory, the statute violates the Due Process Clause of the United States Constitution because the Florida Legislature failed to include a mens rea element requiring the offender to know that the person from whom computer transmissions have been received is a minor. Mr. Wegner further contends that the statute violates the First Amendment by encompassing protected expression.

The State. charged Mr. Wegner by amended information with a violation of a provision of the Computer Pornography and Child Exploitation Prevention Act of 1986, which is codified in section 847.0135. Section 847.0135(2)(d) imposes criminal liability on a person who

[b]uys, sells, receives, exchanges, or disseminates, any notice, statement, or advertisement, or any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information, for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct.

By statute, the crime is classified as a third-degree felony.

The amended information charged, in pertinent part, that the defendant “did knowingly receive by means of a computer, any statement of a minor’s name or other descriptive or other identifying information, for purposes of facilitating sexual conduct of or with a minor, to-wit [the minor victim].” Before trial, Mr. Wegner sought dismissal of this count, asserting that the statute was unconstitutionally defective for failure to include a mens rea requirement. In other words, the statute operated to hold people criminally liable for receiving computer information from someone they did not know was a minor. The trial court reasoned that because the amended information charged that the crime was committed knowingly and the State was obligated to meet that element of proof, there was no constitutional failing.

Statutory interpretation raises an issue of law, and we review the trial court’s ruling de novo. Racetrac Petroleum v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998). Statutes enjoy a strong presumption in favor of constitutionality, Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999), and courts are obligated to construe statutes to avoid declaring them unconstitutional, Gray y. Cent. Fla. Lumber Co., 104 Fla. 446, 140 So. 320, 323 (1932). Applying that principle and the reasoning of our supreme court in State v. Giorgetti, 868 So.2d 512 (Fla.2004), we reject Mr. Wegner’s claim that application of section 847.1035(2)(d) to his conduct violates his due process rights.

In Giorgetti the court analyzed whether Florida’s sexual offender registration statutes, which criminalize the failure to register, are constitutionally defective because the laws fail to contain a scienter or mens rea requirement and thus act to deprive the accused of due process. In affirming the Fourth District’s conclusion that “before an offender may be held criminally liable for failing to register, the State must prove that he was aware of a registration requirement,” 868 So.2d at 513, the supreme court reasoned that a mens rea element must, in virtually every instance, be read into the statute. Id. at 513-20.

At common law, the general rule was that guilty knowledge or mens rea was a required element in the proof of every crime. It was necessary that the act or omission be joined with the mental intent to commit a crime. United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922). “In fact, the United States Supreme Court ‘has on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.’ Moreover, because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored.” Giorgetti 868 So.2d at 515 (quoting United States Gypsum, 438 U.S. at 437, 98 S.Ct. 2864). Often, the disfavor is due to a violation of the Due Process Clause, which incorporates the principle that the state is required to prove an accused guilty of all essential elements of a crime beyond a reasonable doubt. Amend. XIV, U.S. Const.; see also art. I, § 9, Fla. Const.

The Giorgetti court held that its decision was controlled by the analysis in Lambert v. California, 355 U.S. 225, 227, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), in which the Supreme Court examined a Los Angeles ordinance imposing criminal penalties on convicted felons who failed to register. In concluding that the ordinance violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the Supreme Court observed that it was required to “assume that appellant had no actual knowledge of the requirement that she register under this ordinance”; therefore, the question to be answered was “whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” Id.

The Lambert Court noted that the conduct sought to be criminalized by the city ordinance was passive — the failure to register. Accordingly, in that instance, actual knowledge of the registration requirement or, alternatively, proof of the probability that the offender possessed such knowledge, was necessary. “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.” Id. at 229-30, 78 S.Ct. 240.

Section 847.0135(2)(d) lacks an explicitly stated mens rea element. However, as noted, before a court may declare a statute unconstitutional, it is obligated to construe the statute in a manner that avoids a finding of unconstitutionality. The Giorgetti rationale authorizes a court to construe a knowledge or mens rea element into a criminal statute. 868 So.2d at 519. Relying on United States Supreme Court precedent, the Florida Supreme Court noted that the “Court has virtually created a presumption in favor of a guilty knowledge element absent an express provision to the contrary.” Id. at 515. Thus, Florida courts ordinarily will “presume that the Legislature intends statutes defining a criminal violation to contain a knowledge requirement absent an express indication of a contrary intent. An express provision dispensing with guilty knowledge will always control, of course, since in that instance the Legislature will have made its intent clear.” Id. at 516.

We can discern no legislative intent to dispense with a knowledge or mens rea element in section 847.0135(2)(d). Therefore, based upon the offense charged in the information in this case, we construe the statute as requiring knowledge by the accused that the person from whom or about whom he has received the computer transmissions is a minor. Because the State charged Mr. Wegner with knowledge of that fact and the trial court required the State to prove it, we find no due process violation and affirm the conviction on this ground. See Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004) (concluding that the failure of section 847.0135(3) to contain a mens rea requirement is not fatal because criminal statutes are presumed to include a knowledge requirement in the absence of a contrary legislative statement).

Additionally, a similar concern was addressed in a challenge to section 847.0138, Florida Statutes (2002), in Simmons v. State, 886 So.2d 399, 403 (Fla. 1st DCA 2004), review granted, 898 So.2d 81 (Fla. 2005). Section 847.0138 prohibits the transmission of materials harmful to a minor; in Simmons, the transmission was by electronic mail. Discussing a protected speech claim based upon the First Amendment, the court noted that a “defendant must have actual knowledge or believe that the recipient of the communication was a minor.” Simmons, 886 So.2d at 403. In this case, reading a mens rea requirement into section 847.1035(2)(d) similarly required Mr. Wegner to possess - actual knowledge or to believe that the person from whom he received computer transmissions of descriptive or identifying information was a minor and that Mr. Wegner did so for one purpose of facilitating sexual conduct with that minor.

In a second point, Mr. Wegner contends that the statute is unconstitutionally over-broad and violates the First Amendment. Again, however, the thrust of his contention is that because the statute fails to define the requisite guilty knowledge element, it criminalizes expressions protected by the First Amendment. Because we have construed the statute to require mens rea or scienter, this argument also fails.

Affirmed.

DAVIS, J., Concurs.

KELLY, J., Concurs specially.

KELLY, Judge,

Specially concurring.

I concur in the majority’s result; however, I respectfully disagree with the majority’s conclusion that section 847.0135(2)(d) lacks an explicitly stated mens rea element. The statute states that a person who buys, sells, receives, exchanges or disseminates, a minor’s name or other identifying information “for purposes of’ sexual conduct with any minor commits a third-degree felony. Id. (emphasis added). In discerning the mens rea element of a statute, courts have defined “purpose” to mean “specific intent.” See United States v. Bailey, 444 U.S. 394, 405, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); United States v. Scotti, 47 F.3d 1237, 1244-45 (2d Cir.1995); Frey v. State, 708 So.2d 918, 919 (Fla.1998); Wyche v. State, 619 So.2d 231 (Fla. 1993) (MacDonald J., dissenting). Because the statute explicitly describes the requisite of criminal intent, I believe it is unnecessary to “construe the statute to require mens rea or scienter.”

      . , We note that in footnote 17 to its opinion in Apprendi v. New Jersey, 530 U.S. 466, 493, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court of the United States observed that "among the most common definitions of mens rea is 'criminal intent.' ”

      . It is interesting to note that in his dissent in Lambert, 355 U.S. at 232, 78 S.Ct. 240, Justice Frankfurter predicted that the case would stand as an “isolated deviation from the strong currents of precedents — a derelict on the waters of the law.”


author: ORFINGER, J.

text:
    Nancy A. TANCHEL, M.D., Petitioner, v. John Benjamin SHOEMAKER and Jeanne Shoemaker, etc., Respondent.
    No. 5D06-237.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      W. Cleveland Aeree, II and Daniel A. Tressler, II, of The Unger Law Group, P.L., Orlando, for Petitioner.
    Alan J. Landerman of The Nation Law Firm, Longwood, for Respondent.
   ORFINGER, J.

Nancy A. Tanchel, M.D., seeks certiorari review of an order compelling the production of “all [redacted] patient records of Liberty Laser Eye Center [in Vienna, Virginia] from the date of inception of [Dr. Tanchel’s] practice through August 19, 2003, in which PRK surgery was performed .... ” We grant the petition and quash the order.

John B.' Shoemaker filed a medical malpractice action against Dr. Tanchel, alleging that Dr. Tanchel was negligent when she performed PRK laser eye surgery on him in March 2000. In late 2002, Dr. Tanchel relocated her practice from Florida to the Liberty Laser Eye Center in Virginia. Mr. Shoemaker sought discovery of certain patient records regarding similar procedures performed by Dr. Tan-chel in Virginia more than two years after Mr. Shoemaker’s surgery. Dr. Tanchel objected to the production of those records on relevance grounds; however, the trial court overruled that objection and this proceeding follows.

Certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). Certiorari can be a proper remedy for overbroad discovery orders. Wooten Honeywell & Kest, P.A. v. Posner, 556 So.2d 1245 (Fla. 5th DCA 1990). However, not every erroneous discovery order creates certiorari jurisdiction. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Trial courts have broad discretion in discovery matters and discovery orders will only be overturned where the court has abused that discretion. Nat'l Sec. Fire & Cas. Co. v. Dunn, 751 So.2d 777 (Fla. 5th DCA 2000). This Court has, however, “embrace[d] the Supreme Court’s conclusion that litigants are not entitled to carte blanche discovery of irrelevant material.” Residence Inn by Marriott v. Cecile Resort, Ltd., 822 So.2d 548, 550 (Fla. 5th DCA 2002). Cf. Davich v. Norman Bros. Nissan, Inc., 739 So.2d 138 (Fla. 5th DCA 1999) (recognizing that relevancy in the discovery context is broader than in the trial context and that a party may be permitted to discover relevant evidence that would be inadmissible at trial so long as it may lead to the discovery of admissible evidence).

In support of the discovery order, Mr. Shoemaker relies on Amente v. Newman, 653 So.2d 1030 (Fla.1995), to support his assertion that the documents requested are relevant to notice, causation, and impeachment. In Amente, the doctor being sued for malpractice testified that he had followed the same delivery method for his morbidly obese obstetrical patients for some time without complication, and that he did not believe his delivery method caused the injury. Id. at 1032-33. The plaintiff suggested that if the doctor had not used the same method with similar patients or if others had suffered injury when the doctor had used the same method, then the information would be relevant to show causation, to show the doctor had noticed that the method was deficient, or for impeachment. The supreme court held that the trial court did not abuse its discretion in ordering discovery regarding the doctor’s treatment of similarly obese obstetrical patients under the circumstances described in the plaintiffs complaint. Id. at 1033; see also Pusateri v. Fernandez, 707 So.2d 892, 893 (Fla. 2d DCA 1998).

That general rule notwithstanding, discovery should be denied when it has been established that the information requested is neither relevant to any pending claim or defense nor will it lead to the discovery of admissible evidence. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Mr. Shoemaker’s claim against Dr. Tanchel relates to the care she provided to him in March 2000. Under Amente, Dr. Tanchel’s conduct in similar circumstances prior to Mr. Shoemaker’s surgery might be relevant and discoverable. However, what occurred subsequently is immaterial, as there has been no showing of its relevance or how it might possibly lead to relevant material. Caterpillar Indus., Inc. v. Keskes, 639 So.2d 1129, 1131 (Fla. 5th DCA 1994); Saunders v. Fla. Keys Elec. Co-op, Ass’n, 471 So.2d 88 (Fla. 3d DCA 1985) (holding that prior accidents are discoverable to establish that defendant was on notice).

Accordingly, we grant the petition for certiorari and quash the order under review.

TORPY, J., concurs.

GRIFFIN, J., concurs in result only.