author: WISE, Judge.

text:
    James SHOULDIS v. STATE of Alabama.
    CR-04-1907.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied June 9, 2006.

      James Grady Curenton, Jr., Fairhope; and James C. Powell, Robertsdale, for appellant.
    Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.
   WISE, Judge.

The appellant, James Shouldis, was convicted of sexual abuse in the first degree, a violation of § 13A-6-66(a)(3), Ala.Code 1975. He was sentenced to five years’ imprisonment. Shouldis filed a motion for a new trial, which was denied by operation of law. This appeal followed.

E.D., the victim, testified that she was 10 years old at the time of trial. The victim stated that Shouldis, her step-grandfather, touched her “private parts” when she was visiting her grandmother and Shouldis around Christmas-time when she was 7 years old. According to the victim,

“Whenever I would go to [her grandmother’s and Shouldis’s] house, after I would get out of the bathtub, my little sister would stay back there with my [grandmother] and my [grandmother] would dry her off. And I would go and sit in [Shouldis’s] lap and he would give me a bad touch.”

(R. 105.) She further stated that he would “touch my private” outside of her clothing using two or three fingers to “rub it upwards and downwards.” (R. 105.) According to the victim, this happened “maybe three, four, maybe five times.” (R. 117.) The victim stated that after Shouldis had rubbed her “private” areas, he would “take his finger and go ‘shhhhhhh.’ ” (R. 122.)

The victim also testified that on another occasion, she awoke to find Shouldis standing at the foot of the bed holding the underwear she had been wearing when she went to sleep.

Sgt. Dean McGowan of the Baldwin County Sheriffs Department testified that he interviewed Shouldis about the allegations. According to Sgt. McGowan, Shoul-dis told him that he accidentally touched or grabbed the victim’s crotch on one occasion while he was tickling her in the chair and that he told her that they should keep it a secret. Sgt. McGowan further testified that Shouldis denied ever penetrating the child. Finally, Sgt. McGowan testified that Shouldis denied removing the victim’s underwear in the bedroom and denied any touching her in any sexual manner.

Shouldis’s wife testified that the victim was her granddaughter. She stated that her deceased son was the victim’s father. According to her, the victim’s mother had on two previous occasions alleged that one of the victim’s half-siblings had been sexually abused; one of those allegations involved that child’s father and the other involved her stepfather. Shouldis’s wife testified that Shouldis would tickle the children and had some sort of game called “the Claw” where he and the children would tickle each other. She stated that Shouldis denied committing the acts alleged.

The defense presented several character witnesses regarding Shouldis’s character and further attacked the character of the victim’s mother.

Finally, Shouldis testified that on one occasion he and the victim were playing a tickling game when the victim flipped up like she was going to do a somersault and that at the same time he reached down from his chair to tickle her causing his hand to inadvertently catch the victim in the groin area. He stated that he immediately apologized and told her he had not meant to do that. Shouldis also testified that on one other occasion, he was asleep in his chair when the victim jumped into his lap, striking his groin. He stated that he was startled and that as he reached up instinctively toward his groin area he firmly but accidentally struck the victim’s groin area. Shouldis denied intentionally touching the victim’s groin and further stated that he had never touched the victim for sexual gratification.

I.

Shouldis first argues that the trial court erred in refusing to require the State to elect a specific instance of abuse and for not giving a unanimity instruction to the jury.

As noted above, the victim testified that Shouldis touched her “private” areas while she and Shouldis were sitting in his chair “maybe three, four, maybe five times.” (R. 117.) During his motion for a judgment of acquittal, Shouldis argued that as to one count of the indictment the State had failed to present a prima facie case that any offense occurred in the bedroom. Defense counsel argued that the prosecutor previously assigned to the case had asserted that that particular count of the indictment involved an incident that allegedly occurred in the bedroom, while another count of the indictment involved the incidents in the chair. .There was considerable discussion about a motion for a more definite statement that was apparently filed by defense counsel that was handled by the prosecutor who was assigned to the case before the prosecutor who actually tried the case was assigned. After additional argument, the trial court admonished the State for filing what it referred to as a “boilerplate” indictment. The trial court then determined that one count of the indictment involved the allegations in the bedroom and dismissed that count for a lack of evidence. There was no mention of election during the remainder of the trial or during the proceedings on Shouldis’s motion for a judgment of acquittal at the close of the evidence.

A.

With regard to Shouldis’s argument that the State should have been required to elect as to which instance of abuse in the rocking chair it was traveling under, it is well-settled that “[r]eview on appeal is limited to review of questions properly and timely raised at trial.” New-some v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989). “Even constitutional claims may be waived on appeal if not specifically presented to the trial court.” Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997). Further, “[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala.1987).

Here, the record does not contain any indication that the defense requested the State to elect on which instance of abuse in the rocking chair it was seeking a conviction. The thrust of counsel’s argument during the motion for a judgment of acquittal went not to which specific instance of abuse in the rocking chair it was proceeding on in the remaining count of the indictment; rather, the thrust of the argument went to whether the State was seeking to use one instance in the rocking chair to prove count one of the indictment and a second incident in the rocking chair to prove count two of the indictment. Thus, because it does not appear from the record that Shouldis requested that the State elect on which incident in the rocking chair it was basing the remaining charge, that claim is not preserved for appellate review. See Pierson v. State, 677 So.2d 830 (Ala.Crim.App.1996). Moreover, even if this claim had been preserved, Shouldis would not have been entitled to any relief because his claim is without merit.

In R.L.G. v. State, 712 So.2d 348 (Ala.Crim.App.1997), this Court held that the general election rule does not apply in cases involving generic evidence and resident child molesters. The Alabama Supreme Court affirmed that holding in Ex parte R.L.G., 712 So.2d 372 (Ala.1998), and in R.A.S. v. State, 718 So.2d 117 (Ala.1998), further extended that holding to include cases involving both generic and specific evidence.

Although Shouldis contends that the holding in R.L.G. does not apply because he and the victim did not “reside” together, based on the evidence presented in this case, we conclude that the law regarding “resident abusers” or “resident child molesters” still governs. As this Court stated in R.L.G.:

‘The term “elect” implies a knowledge of facts which go to make up two or more offenses; ... to hold [the prosecutor] to have elected to proceed for a certain offense, he must have learned enough to enable him to individualize the transaction, and then pursue his inquiry with a view of learning the details and particulars of the act or transaction thus individualized.’
“Jackson v. State, 95 Ala. 17, 18, 10 So. 657, 657 (Ala.1892). The very nature of the evidence in this case, as discussed below, is dictated by the nature of the circumstances of the alleged abuse: abuse upon a young child by an abuser residing with the child, thus an abuser who could perpetuate the abuse so frequently and in so many locations that the young child loses any frame of reference in which to compartmentalize the abuse into ‘distinct and separate transactions.’ Such evidence of abuse has been termed ‘generic evidence.’
“Justice Maddox recognized this type of evidence in his dissent in Ex parte King, 707 So.2d 657 (Ala.1997), when he quoted the following from State v. Brown, 55 Wash.App. 738, 746-47, 780 P.2d 880, 885 (1989), review denied, 114 Wash.2d 1014, 791 P.2d 897 (1990):
“ ‘ “Particularly when the accused resides with the victim or has virtually unchecked access to the child, and the abuse has occurred on a regular basis and in a consistent manner over a prolonged period of time, the child may have no meaningful reference point of time or detail by which to distinguish one specific act from another. The more frequent and repetitive the abuse, the more likely it becomes that the victim will be unable to recall specific dates and places. Moreover, because the molestation usually occurs outside the presence of witnesses, and often leaves no permanent physical evidence, the state’s case rests on the testimony of a victim whose memory may be clouded by a
blur of abuse and a desire to forget. See People v. Luna, 250 Cal.Rptr. 878, 884, 204 Cal.App.3d 726, quoting People v. Martinez, 243 Cal.Rptr. 66, 73, 197 Cal.App.3d 767 (1988) (Hamlin, J„ dissenting).” ’
707 So.2d at 661. As the court in People v. Jones, 51 Cal.3d 294, 305, 270 Cal.Rptr. 611, 616, 792 P.2d 643, 648 (1990), aptly observed:
“ ‘A young victim ..., assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by “specific incidents or dates” all or even any such incidents. (Indeed, even a mature victim might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or circumstance. See People v. Luna (1988) 204 Cal.App.3d 726, 748,250 Cal.Rptr. 878.)’
“It is exactly because of the nature of this ‘generic’ evidence of abuse that the prosecution of resident child molesters presents unique challenges rarely present in prosecution for other crimes. ‘It is in the context of [sexual molestation of children] cases that the issues associated with evidence of multiple offenses and jury unanimity usually arise.’ Brown, 55 Wash.App. at 746, 780 P.2d at 885. Moreover, ‘[c]hild molestation cases frequently involve difficult, even paradoxical, proof problems.’ Jones, 51 Cal.3d at 305, 270 Cal.Rptr. at 616, 792 P.2d at 648. Cf. Seales v. State, 581 So.2d 1192, 1193 (Ala.1991) (in its review of the appellant’s conviction for the rape of his seven-year-old stepdaughter, the court quoted with approval the following observation in Patrick v. State, 495 So.2d 112, 114 (Ala.Cr.App.1986), “‘[b]ecause of the language and communication difficulties of an underage victim, more than a few cases have dealt with the matter of proving what was formerly referred to as a ‘statutory rape’ ” ’); Phillips v. State, 668 So.2d 881, 884 (Ala.Cr.App.1995) (recognizing, in its review of a first-degree rape conviction of a nine-year-old victim, that the victim’s poor testimony, wherein she repeatedly stated that she could not remember, is representative of the problem noted above in Seales).
“The case before us demonstrates also the difficulty of requiring a specific election where the evidence shows a continuing pattern of sexual abuse of young children. A.G.’s description of the alleged abuse offered no distinguishing characteristics identifying any separate and distinct incidents of abuse. Rather, the abuse ‘result[ed] in an amalgamation of the crimes in the child’s mind,’ People v. Luna, 204 Cal.App.3d 726, 748, 250 Cal.Rptr. 878, 890 (1988); thus ‘the child’s testimony [was] reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.’ id. Although the evidence that A.G. had been abused was convincing— the jury so concluded in 15 minutes of deliberation — we agree with the prosecutor and the trial court that the difficulty of isolating and identifying a particular incident for the jury’s consideration is manifest.”

712 So.2d at 356-57 (footnote omitted). It is clear from reading the above-quoted excerpt from R.L.G. and the cases cited therein that the “resident child molester” doctrine is applicable in situations in which the accused has had “virtually unchecked access to the child” over an extended period of time. See R.L.G., 712 So.2d at 356, quoting Ex parte King, 707 So.2d 657, 661 (Ala.1997) (Maddox, J., dissenting).

Here, the evidence clearly indicated that the victim and her sister stayed at Shoul-dis’s house every other weekend and on assorted holidays from 1997 — when the victim’s father died — until the abuse was discovered near the end of 2001. The testimony further indicated that the victim spent nearly every weekend in November and December at Shouldis’s house in 2001. Clearly the evidence in this case indicated that Shouldis had “virtually unchecked access to the child” in the manner contemplated by the cases cited above. Therefore, the limited abrogation of the election rule as set out in R.L.G. and 12.AS. was applicable even though the victim resided with her mother and not Shouldis.

B.

With regard to the failure of the trial court to give a unanimity instruction, it is equally well-settled that “[n]o party may assign as error the court’s ... failing to give a written instruction ... unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.” Rule 21.3, Ala.R.Crim.P. See also Greenhill v. State, 746 So.2d 1064 (Ala.Crim.App.1999); and Sanders v. State, 683 So.2d 14 (Ala.Crim.App.1996). The record does not contain any request for a unanimity instruction. Thus, to the extent that Shouldis also challenges the failure to give a unanimity instruction, because he did not request such an instruction, that claim was not preserved for appellate review.

For these reasons, Shouldis is not entitled to any relief on this claim.

II.

Shouldis next argues that there was a fatal variance between the indictment and the facts presented at trial.

“ ‘[T]his court has determined that issues as to a variance between the indictment and proof ... are not preserved for review where they are not raised at trial.’ ” Biles v. State, 715 So.2d 878, 883 (Ala.Crim.App.1997), quoting Turner v. State, 610 So.2d 1198, 1199 (Ala.Crim.App.1992). We note that Shouldis concedes in his brief — in his argument regarding his ineffective-assistance-of-counsel claim — that his trial counsel “never expressly raised this issue at trial or on a motion for a new trial.” (Appellant’s brief at p. 64.) Thus, this claim was not preserved for appellate review.

Moreover, even had this issue been preserved, Shouldis would not have been entitled to any relief because his claim is without merit.

“ ‘ “An indictment is sufficient if it apprises the accused with a reasonable certainty of the nature of the accusation against him so that he may prepare his defense and plead the judgment of conviction as a bar to any subsequent prosecution for the same offense.” ’ Moore v. State, 659 So.2d 205, 208 (Ala.Cr.App.1994), quoting Rice v. State, 620 So.2d 140,142, (Ala.Cr.App.1993).
“One of the functions of an indictment is to adequately inform the accused of the crime charged so that a defense may be prepared. Ex parte Washington, 448 So.2d 404, 407 (Ala.1984). A variance in the form of the offense charged in the indictment and the proof presented at trial is fatal if the proof offered by the State is of a different crime, or of the same crime, but under a set of facts different from those set out in the indictment. Ex parte Hightower, 443 So.2d 1272, 1274 (Ala.1983).” ’
“Ex parte Hamm, 564 So.2d 469, 471 (Ala.), cert, denied, 498 U.S. 1008, 111 S.Ct. 572,112 L.Ed.2d 579 (1990).
‘[T]here must be material variance between indictment and proof before a conviction will be overturned for that reason.’ Ex parte Collins, 385 So.2d 1005, 1009 (Ala.1980)(emphasis in original). ‘The law of this state is well settled that “[t]here is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein.” ’ House v. State, 380 So.2d 940, 943 (Ala.1979). Compare Ex parte Hightower, 443 So.2d 1272 (Ala.1983) (fatal variance between indictment charging sexual misconduct without consent and proof of sexual misconduct with consent obtained by artifice.)”
‘Lipham v. State, 616 So.2d 396, 397 (Ala.Cr.App.1993).’
“Pace v. State, 652 So.2d 321, 324-25 (Ala.Cr.App.1994), cert, denied, 652 So.2d 328 (Ala.1994).”

Moore v. State, 697 So.2d 800, 802 (Ala.Crim.App.1996). Further,

“A fatal variance exist[s] only where the State fails to adduce any proof of a material allegation of the indictment or where the only proof adduced is contrary to a material allegation in the indictment. Eady v. State, 369 So.2d 841, 843 (Ala.Cr.App.1979), reversed on other grounds, Ex parte Alexander, 475 So.2d 628 (Ala.1985).”

Johnson v. State, 584 So.2d 881, 884 (Ala.Crim.App.1991).

Here, the indictment charged that Shouldis was over 16 years of age and subjected the victim to sexual contact when the victim was less than 12 years of age. The evidence at trial indicated that Shouldis, who was over 16 years of age, subjected the victim, who was under 12 years of age, to sexual contact. Thus, no material variance existed. Therefore, even had this issue been preserved by timely objection, Shouldis would not have been entitled to any relief on this claim.

III.

Shouldis also argues that improper evidence was introduced at trial. Specifically, he contends that evidence that Shouldis removed the victim’s underwear while they were in the bedroom and touched the victim on that occasion was improper under Rule 404(b), Ala.R.Evid.

Initially, we question whether this evidence should even be considered Rule 404(b) evidence, because it appears based on our review of the record and the arguments of counsel during Shouldis’s motion for a judgment of acquittal at the close of the State’s case that the evidence was actually evidence relating to the first count of sexual abuse charged in the indictment, i.e., the count that was dismissed by the trial court. The fact that that count of the indictment was dismissed based on insufficient evidence did not somehow render improper the evidence offered to support that charge.

In any event, we note that in order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated, and a ruling on the objection must be made by the trial court. See Ingram v. State, 729 So.2d 883 (Ala.Crim.App.1996). “When a timely objection at the time of the admission of the evidence is not made, the issue is not preserved for this Court’s review.” Ziglar v. State, 629 So.2d 43, 47 (Ala.Crim.App.1993). Here, Shouldis did not object to the admission of the evidence at the time it was offered by the State. Therefore, his allegation that the evidence was improper Rule 404(b) evidence was not preserved.

IV.

Shouldis also argues that the trial court erred in denying his motion for a judgment of acquittal. Specifically, he argues that there was no evidence as to the date of the alleged incident.

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff d, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of the appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Section 13A-6-66, Ala.Code 1975, provides, in relevant part:

“(a) A person commits the crime of sexual abuse in the first degree if:
“(3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.”

Section 13A-6-60(3), Ala.Code 1975, defines “sexual contact” as “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”

Time is not an essential element of sexual abuse. See Hambley v. State, 565 So.2d 692 (Ala.Crim.App.1990). Thus, the State did not have to present evidence of the specific date of the alleged violation to prove a prima facie case.

In addition, “the victim’s testimony alone is sufficient to establish a prima facie case of either rape or sexual abuse.” Jones v. State, 719 So.2d 249, 255 (Ala. Crim.App.1996). Here, the victim testified that she was 10 years old at the time of trial, and that Shouldis, her step-grandfather, rubbed her “private” areas with his fingers approximately 3 years earlier when she was 7 years old. This testimony alone was sufficient to support the trial court’s denial of Shouldis’s motion for a judgment of acquittal. The State having presented a prima facie case of sexual abuse, the trial court properly allowed the case to go to the jury. Therefore, Shouldis is not entitled to any relief on this claim.

V.

Finally, Shouldis argues that his trial counsel was ineffective for a number of reasons. The State contends that this claim was not preserved for our review. We agree.

It is well settled that ineffective-assistance-of-counsel claims cannot be presented on direct appeal when they have not been first presented to the trial court. Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000). Thus, “ ‘[a]n ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala.R.Crim.P., expires, in order for that claim to be properly preserved for review upon direct appeal.’ ” 781 So.2d at 1010, quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996). Because Shouldis did not raise this claim before the trial court, he cannot present that argument for the first time on direct appeal.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, J., concur.

SHAW, J., concurs in the result.

BASCHAB, J., recuses herself.

      . Shouldis was indicted for two counts of sexual abuse. The trial court granted Shoul-dis's motion for a judgment of acquittal at the close of the State’s case as to one of those counts, and that charge was dismissed.

      . The victim testified that she never got in Shouldis’s lap when he was asleep. She further testified that he was awake on each instance that she says he rubbed her inappropriately.

      . That written motion is not contained in the record. See Wilson v. State, 727 So.2d 869, 869-70 (Ala.Crim.App.1998) ("It is the appellant’s burden to provide a reviewing court with a complete record on appeal.... We will not predicate error on a silent record.”). However, another pleading filed by the former prosecutor regarding the State’s notice of intent to introduce child hearsay referenced the incident in the bedroom and two incidents in the rocking chair.

      . The trial court’s ruling further supports our conclusion that that was the trial court’s understanding of the nature of Shouldis’s argument in his motion for a judgment of acquittal, because the trial court clearly decided that question adversely to the State, holding that one count involved the allegations in the bedroom and dismissing that count as unsupported by sufficient evidence.

      . That there was some discussion of the evidence during the discussion on Shouldis’s motion for a judgment of acquittal as Rule 404(b) evidence did not relieve Shouldis from the requirement that he object to the evidence at the time it was offered.

      . Shouldis argues in his reply brief that because trial counsel filed the motion for a new trial, "it would only be proper for this Court to remand this case for the filing of a Rule 32 petition on the ineffective assistance of counsel claim." (Appellant’s reply brief at p. 33.) However, this Court does not remand direct appeals for an appellant to file a Rule 32 petition. Petitions for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., are separate and independent of direct appeals. In short, because the ineffective-assistance-of-counsel claim Shouldis argued as claim V on direct appeal was not preserved for appellate review on direct appeal, we now hold that claim not preserved for appellate review on direct appeal. That holding in this case does not of itself preclude Shouldis’s ability to pursue that claim in a properly pleaded, timely filed, Rule 32 petition for postconviction relief, should he chose to do so.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Ex parte James SHOULDIS. (In re James Shouldis v. State of Alabama).
    1051357.
    Supreme Court of Alabama.
    Oct. 13, 2006.
    James G. Curenton, Jr., Fairhope, for petitioner.
    Submitted on petitioner’s brief only.
   SMITH, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.


author: SHAW, Judge.

text:
    Charles Edward JACKSON v. STATE of Alabama.
    CR-04-2035.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.
    Rehearing Denied May 12, 2006.
    Certiorari Denied Oct. 13,2006 Alabama Supreme Court 1051206.

      Scott K. Hedeen, Dothan, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   SHAW, Judge.

Charles Edward Jackson pleaded guilty to theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975. He was sentenced to three years’ imprisonment; the sentence was suspended, and he was placed on three years’ probation. Before entering his plea, Jackson expressly reserved the right to appeal the trial court’s denial of his motion to dismiss.

Our review of the record reveals the following. On July 25, 2003, Jackson executed a rental agreement with Abbeville Rental, Inc., for several items of furniture. (C. 30.) He made three payments under this agreement — one on July 25, 2003, one on August 25, 2003, and one on September 25, 2003. (C. 31-32.) In November 2003, Norman Leidinger of Abbeville Rental learned that Jackson had sold the furniture to Britt Ludlum at Ludlum Trading Post after representing to Ludlum that the furniture covered by the agreement had been paid for. (C. 3^1.) Leidinger filed a complaint against Jackson alleging second-degree theft of property. Thereafter, Jackson was indicted for that offense. The indictment stated that Jackson

“did in Henry County, Alabama, knowingly obtain or exert unauthorized control over a TWO PIECE LIVING ROOM SUITE and ONE QUEEN MATTRESS AND FRAME the property of ABBEVILLE RENTAL CENTER, of the value of $1,309.00, with the intent to deprive the owner of said property, in violation of Section 13A-8-4 of the Code of Alabama.”

(C. 12.)

Jackson filed a motion to dismiss the case, alleging that in light of the holding in Rhyne v. H & B Motors, 505 So.2d 307 (Ala.1987), he could not, as a matter of law, be guilty of theft of property because, he said, under the rental agreement executed on July 25, 2003, Abbeville Rental was no longer the owner of the property, but was a secured party that had merely retained a security interest in the property. He also alleged that the criminal division of the Henry Circuit Court was not the proper forum for this ease because the parties had agreed to arbitration.

On May 10, 2005, the trial court conducted a hearing on Jackson’s motion to dismiss. After hearing arguments from both parties, the trial court stated:

“THE COURT: Well, my ruling in the case — I have read these cases on the subject, and my ruling is, number one, is that this transaction, according to the lease document, is not a secured transaction, either constructive as is set out in the Lawson State [Cmty.] College [v. First Cont’l Leasing Corp., 529 So.2d 926 (Ala.1988) ] case, where an actual leasing company took title, and then from the vendor, and the vendor in this case never did anything but lease — or an actual sale to the — with a security interest back, as in the [Rhyne v. H & B] Motors case, which means the motion in that regard as to the first area, about its being a secured transaction, is denied. And then, it is denied as to the second area, about the victim — alleged victim having a civil remedy, which is effected by an arbitration case, that that would not apply, because the State of Alabama is not bound by the civil remedies of a victim, nor an arbitration case, because they are not a party to. So, the motion is denied on both counts.”

(R. 11-12.)

On appeal, Jackson contends that his motion to dismiss should have been granted because, he says, under the terms of the July 25, 2003, agreement, Abbeville Rental is not the owner of the property, and thus, its employee, Leidinger, could not file a complaint against Jackson alleging second-degree theft of property as to the property that is the subject of the agreement. He also contends that the agreement he executed with Abbeville Rental on July 25, 2003, was a security agreement rather than a rental agreement and that Abbeville Rental does not fall within the definition of an “owner” set out in § 13A-8-l(8), Ala.Code 1975. Jackson does not raise the arbitration issue on appeal.

The State argues that Jackson was properly charged with second-degree theft of property because, it says, Abbeville Rental was the owner of the property, not merely a secured party, and that when Jackson sold the property to a third party without authorization from Abbeville Rental, he was exerting unauthorized control over property belonging to Abbeville Rental.

The rental agreement dated July 25, 2003, indicates that the rental term was “MONTHLY.” (C. 30.) The agreement also states that “[rjental payments are due at the beginning of each term that you choose to rent the property” and that “THIS IS A RENTAL TRANSACTION. You may use the property for the terms of this lease. At your option, you may renew this lease. To do this, you must make rental payment in advance for each term you wish to rent the property.” (C. 30.) Additionally, the rental agreement states that “[y]ou are liable for loss, damage and/or destruction of the leased property, normal wear and tear, excepted.” (C. 30.) The rental agreement further states:

“TERMINATION: You may voluntarily terminate this lease at the end of any term with no penalty. To do so, you must return the property and pay all rental payments and other charges due through the date of return.
“ASSIGNMENT: We may sell, transfer, or assign this lease without notice to you.
“TITLE, MAINTENANCE AND TAXES: We retain title to the property at all times and will pay any taxes which might be levied on the property. You do not own the property unless you buy or acquire ownership as provided by the terms of this lease. We will maintain the property in good working order as long as you rent it.
“OUR RIGHTS TO TAKE POSSESSION: If you do not renew this lease, we have the right to take possession of the property. If you do not allow us to do so, you agree to pay our costs incurred in taking possession of the property including reasonable attorney’s fees.
“FORBIDDEN ACTS: If you sell, mortgage, pawn, pledge, encumber, hock, dispose of the property or move it from your current residence, without our consent, you will have breached this lease and we will have the immediate right to possession of the property.”

(C. 30) Additionally, the rental agreement states:

“5. COST OF LEASE: If you choose to rent to own you must renew this lease for the following number of months or weeks:
“12 Months @ $85.32/mo. for a total cost of $1023.84
“_Weeks @ _/wk. for a total cost of_
“6. OUR ESTIMATED FAIR MARKET VALUE FOR THIS PROPERTY IS $899.00.
“7. PURCHASE OPTION: If you wish to purchase the rental property you may do so by the payment of $100.00 of the remaining total balance calculated at that time. This option is not available within 90 days of conclusion of this contract.”

(C. 30.)

Section 13A-8-l(8), Ala.Code 1975, defines an “owner” as follows:

“A person, other than the defendant, who has possession of or any other interest in the property involved, even though that interest or possession is unlawful, and without whose consent the defendant has no authority to exert control over the property.
“A secured party, as defined in Section 7-9A-102(a)(72), is not an owner in relation to a defendant who is a debtor, as defined in Section 7-9A-102(a)(28), in respect of property in which the secured party has a security interest, as defined in Section 7-1-201(37).”

Section 7-1-201(37), Ala.Code 1975, defined the term “security interest” as follows:

“a. ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. The term also includes any interest of a consignor and a buyer of accounts, chattel paper, a payment intangible, or a promissory note in a transaction that is subject to Article 9A. The special property interest of a buyer of goods on identification of those goods to a contract for sale under Section 7-2-401 is not a ‘security interest,’ but a buyer may also acquire a ‘security interest’ by complying with Article 9A. Except as otherwise provided in Section 7-2-505, the right of a seller or lessor of goods under Article 2 or 2A to retain or acquire possession of the goods is not a ‘security interest,’ but a seller or lessor may also acquire a ‘security interest’ by complying with Article 9A. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (Section 7-2^101) is limited in effect to a reservation of a ‘security interest.’

“b. Whether a transaction creates a lease or security interest is determined by the facts of each case; however, a transaction creates a security interest if the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee, and

“1. the original term of the lease is equal to or greater than the remaining economic life of the goods, or
“2. the lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods, or
“3. the lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement, or
“4. the lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.

“c. A transaction does not create a security interest merely because it provides that:

“1. the present value of the consideration the lessee is obligated to pay the lessor for the right to possession and use of the goods is substantially equal to or is greater than the fair market value of the goods at the time the lease is entered into,
“2. the lessee assumes risk of loss of the goods, or agrees to pay taxes, insurance, filing, recording, or registration fees, or service or maintenance costs with respect to the goods,
“3. the lessee has an option to renew the lease or to become the owner of the goods,
“4. the lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable fair market rent for the use of the goods for the term of the renewal at the time the option is to be performed, or
“5. the lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods at the time the option is to be performed.

“d. For purposes of this subdivision (37):

“1. Additional consideration is not nominal if (i) when the option to renew the lease is granted to the lessee the rent is stated to be the fair market rent for the use of the goods for the term of the renewal determined at the time the option is to be performed, or (ii) when the option to become the owner of the goods is granted to the lessee the price is stated to be the fair market value of the goods determined at the time the option is to be performed. Additional consideration is nominal if it is less than the lessee’s reasonably predictable cost of performing under the lease agreement if the option is not exercised;
“2. ‘Reasonably predictable’ and ‘remaining economic life of the goods’ are to be determined with reference to the facts and circumstances at the time the transaction is entered into; and
“3. ‘Present value’ means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain. The discount is determined by the interest rate specified by the parties if the rate is not manifestly unreasonable at the time the transaction is entered into; otherwise, the discount is determined by the court as a matter of law by a commercially reasonable rate that takes into account the facts and circumstances of each case at the time the transaction was entered into.”

In Rhyne v.H&B Motors, supra, Harvey Rhyne purchased an automobile from H & B Motors. Rhyne made a down payment on the automobile, and he received a bill of sale and signed a promissory note and a security agreement. He did not make any further payments on the automobile. A warrant was issued for Rhyne’s arrest on a charge of first-degree theft of property by deception; the charge was later dropped. Thereafter, Rhyne sued H & B Motors alleging malicious prosecution, and the case proceeded to trial. The trial court directed a verdict in favor of H & B Motors, finding that probable cause for Rhyne’s arrest had been established as a matter of law. On appeal, the Alabama Supreme Court quoted the definition of an “owner” as set out in § 13A-8-1(8) and then stated:

“The undisputed testimony makes it clear that a valid security agreement existed between Rhyne and H & B Motors. Under this agreement, H & B Motors is a ‘secured party’ as defined in § 7-9-105(1)(m), Code of 1975, and Rhyne is a debtor as defined in § 7-9—105(1)(d), Code of 1975. As a result, H & B Motors is not the ‘owner’ of the automobile, of which the defendants charged Rhyne with theft. See § 13A-8-2, Code of 1975. Thus, as a matter of law, probable cause to charge Rhyne with the crime of theft of property did not exist.”

Rhyne, 505 So.2d at 311.

In Lawson State Community College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988), overruled on other grounds, Berner v. Caldwell, 543 So.2d 686 (Ala.1989), Lawson State Community College had negotiated with Energy Recovery for the purchase of a heating, ventilating, and air-conditioning system to be installed at Lawson State. The parties financed this transaction by way of an equipment lease. First Continental Leasing Corporation paid Energy Recovery in full for both the equipment and for installing and maintaining the equipment. First Continental took title of the equipment and, in turn, leased the equipment to Lawson State. Under the terms of the “Equipment Lease-Purchase Agreement,” Lawson State was to pay $2,618.88 per month for 60 months; at the end of the 60-month period, Lawson State had the right to purchase the equipment “for a ‘concluding payment’ of $1.00.” 529 So.2d at 927.

The Alabama Supreme Court determined that the lease between First Continental and Lawson State was

“not a ‘true’ lease, but [was] instead a lease in the nature of a security interest, as contemplated by Ala.Code (1975), § 7-1-201(37) and § 7-9-102. These sections establish that a ‘lease’ allowing the lessee to purchase at a ‘nominal consideration’ the subject-matter of the lease is to be considered a security agreement rather than a ‘true’ lease. See Commerce Union Bank v. John Deere Indus. Equip. Co., 387 So.2d 787 (Ala.1980); see generally B. Clark, The Law of Secured Transactions under the Uniform Commercial Code, at 1-25 through 1-29 (1980). In the instant case, the right of [Lawson State] to purchase the equipment for a mere $1.00 at the termination of the lease constitutes an option to purchase at a ‘nominal consideration,’ and hence, the arrangement between these two parties is no mere bailment lease, but is instead a disguised conditional sale secured by a security agreement. Accordingly, Article 9 applies to this ‘lease’ transaction.”

529 So.2d at 929.

In Commerce Union Bank v. John Deere Industrial Equipment Co., 387 So.2d 787 (Ala.1980), the Alabama Supreme Court sought to determine whether the agreement between John Deere Industrial Equipment Company and American Forest Resources, Inc., was a true lease or a security interest.

“Upon a cursory examination of the rental agreement in question, many of its conditions and terms seem to indicate a security interest. The standard printed lease form provides that lessee shall be liable for the full rent of the guaranteed minimum rental period, that lessee may purchase at his option at any time during the term and apply ninety-one percent (91%) of all rentals paid to the purchase price which is the present value as indicated on the lease, that lessee shall indemnify lessor for loss or damage (except to the extent covered by insurance purchased by the lessor), that the amount of total loss shall be calculated according to the present value, less any rental payments made, and that damage other than total loss shall not terminate the rental payments for the remainder of the term. The lease, however, does not designate any guaranteed minimum rental term. Although the instrument provides a space for the designation of a guaranteed term and the lease provisions and conditions refer to a guaranteed term, there is no evidence of any guaranteed minimum rental period under this lease.
“Most of the cases declaring rental agreements to be security interests have involved leases which obligated lessees for a guaranteed minimum term: Matter of Tillery, 571 F.2d 1361 (5th Cir.1978); James Talcott, Inc. v. Associates Capital Co., Inc., 491 F.2d 879 (6th Cir.1974). American Forest Resources was not obligated to pay any particular sum of money for any specified term other than monthly rental payments of $2,575.00. According to competent testimony at trial, the rental value of this equipment would be between $2,200.00 and $2,500.00 per month. Under this arrangement, therefore, American Forest Resources could terminate the lease and return the equipment at any time without further liability.
“Although ninety-one percent (91%) of the rentals paid could be applied to the purchase price in the event American Forest Resources exercised its option to purchase, there is no conclusive evidence that this provision would allow the lessee to ‘become or [have] the option to become the owner of the property for no additional consideration or for a nominal consideration.’ Code 1975, § 7-1-201(37). Likewise, there is no evidence to support a contention that the only sensible course for American Forest Resources under the terms of the lease would be to exercise the purchase option. In fact, American Forest Resources exercised its option pursuant to the ninety-one percent (91%) accrual allowance only one month after the lease was executed, which left almost the entire purchase price to be paid. There is also evidence that the actual purchase price was more than the option price in the lease. The present value (option price) of the equipment was $35,808.00 in the lease as compared to the actual purchase price of $41,700.00 in the purchase agreement. The seeming renegotiation of the purchase price further indicates the intent of the parties to enter into two separate transactions — first a lease, then a purchase agreement.
“Although American Forest Resources obtained actual possession of the equipment on August 10, pursuant to the rental agreement, it did not become a ‘debtor,’ nor did it ‘[receive] possession of the collateral’ for purposes of § 7-9-312(4) until September 11, the date of the purchase agreement. Brodie Hotel Supply, Inc. v. United States, 431 F.2d 1316 (9th Cir.1970). Brodie states that ‘the term “debtor” as it is used in this particular priority statute ... [§ 7-9-312(4) ] means “the person who owes payment or other performance of the obligation secured.” ’ [§ 7 — 9—105(d) ], Id. at 1319. American Forest Resources was only required to pay rent on a monthly basis for the use of the equipment; therefore, it ‘did not owe performance of an “obligation secured” by the collateral in question’ until the purchase agreement was executed on September 11,1978. Id.
“After a careful review of the lease, and for the above stated reasons, we find that the intent of the parties was to create a true lease. John Deere’s purchase money security interest was created by the execution of the purchase agreement on September 11, and the financing statement filed September 21 perfected and secured John Deere’s preferred status over Commerce Union’s prior perfected security interest.”

387 So.2d at 791-92.

Under the rental agreement, Jackson was not obligated to pay any particular sum of money for any specified period of time except the amount of the monthly rental; he had an option to renew the lease by making the monthly rental payment in advance; and he had a right to terminate the lease by returning the property to Abbeville Rental without any further liability. The rental agreement provided that Abbeville Rental retained title to the property and was responsible for paying any taxes levied on the property. Under the terms of this agreement, this agreement was a lease; it did not create a security interest. Thus, the trial court properly denied Jackson’s motion to dismiss because Abbeville Rental was the owner of the property and could prosecute Jackson for second-degree theft of property-

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . We recognize that effective January 1, 2005, the definition of the term "security interest” can be found at § 7-1-201(35), Ala.Code 1975, rather than at § 7-1-201(37), Ala.Code 1975, and that, effective January 1, 2005, that portion of § 7-1-201(37) that explained the difference between a security interest and a lease can be found at § 7-1-203, Ala.Code 1975. In fact, effective January 1, 2005, § 7-1-201(35) states, in pertinent part, that "[w]hether a transaction in the form of a lease creates a 'security interest’ is determined pursuant to Section 7-1-203.”


author: PER CURIAM.

text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR—RULE 3-7.2.
    No. SC07-460.
    Supreme Court of Florida.
    April 5, 2007.
    John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Director, Attorney Consumer Assistant Program, Tallahassee, FL, Henry M. Coxe, III, President, Jacksonville, FL, and Franciso R. Angones, President-Elect, The Florida Bar, Miami, FL, for Petitioner.
   PER CURIAM.

After considering proposals from The Florida Bar and a comment filed by a member of the public, this Court adopted amendments to Rule Regulating the Florida Bar 3-7.2 (procedures upon criminal or professional misconduct). See In re Amendments to the Rules Regulating the Fla. Bar — Rules 3-5.2 & 3-7.2, 933 So.2d 498 (Fla.2006). Since adopting the amendments to rule 3-7.2, the Court has considered the impact the rule has on referees and court dockets. We have jurisdiction, see art. V, § 15, Fla. Const., and we hereby modify the rule.

The current rule requires a referee to hold a hearing on sanctions and file a report with this Court within thirty days of assignment. In practice, this has proven to be too short a time period, requiring numerous extensions. Thus, the Court modifies the rule to increase this period to ninety days.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The amendments shall become effective immediately upon the release of this opinion.

However, because the amendment has not been published for comment, interested persons shall have until July 5, 2007, in which to file comments with the Court on the change from thirty days to ninety days. An original and nine paper copies of all comments must be filed with the Court, with a certificate of service verifying that a copy has been served on John F. Harkness, Jr., Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Florida Bar has until July 25, 2007, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

It is so ordered.

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

APPENDIX

RULE 3-7.2 PROCEDURES UPON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE UPON DETERMINATION OR JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT

(a) Definitions. [No change.]

(b) Determination or Judgment of Guilt, Admissibility; Proof of Guilt.

[No change.]

(c) Notice of Institution of Felony Criminal Charges. [No change.]

(d) Notice of Determination or Judgment of Guilt of Felony Charges. [No change.]

(e) Notice by Members of Determination or Judgment of Guilt of All Criminal Charges. [No change.]

(f) Suspension by Judgment of Guilt (Felonies). [No change.]

(g) Petition to Modify or Terminate Suspension. [No change.]

(h) Appointment of Referee. [No change.]

(1) Hearing on Petition to Terminate or Modify Suspension. [No change.]

(2) Hearing on Sanctions. In addition to conducting a hearing on a petition to terminate or modify a suspension entered under this rule, the referee shall also hear argument concerning the appropriate sanction to be imposed and file a report and recommendation with the supreme court in the same manner and form as provided in rule 3-7.6(m) of these rules. The hearing shall be held and a report and recommendation shall be filed with the supreme court within 30 90 days of assignment as referee.

The respondent may challenge the imposition of a sanction only on the grounds of mistaken identity or whether the conduct involved constitutes a felony under applicable law. The respondent may present relevant character evidence and relevant matters of mitigation regarding the proper sanction to be imposed. The respondent may not contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings may be allowed to explain the circumstances concerning the entry of the plea for purposes of mitigation.

The report and recommendations of the referee may be reviewed in the same manner as provided in rule 3-7.7 of these rules.

(i) Appeal of Conviction. [No change.]

(j) Expunction. [No change.]

(k) Waiver of Time Limits. [No change.]

(Z) Professional Misconduct in Foreign Jurisdiction. [No change.]


text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420—SEALING OF COURT RECORDS AND DOCKETS.
    No. SC06-2136.
    Supreme Court of Florida.
    April 5, 2007.
    Gary Devenow Fox, Chair, Rules of Judicial Administration Committee, Miami, Florida, William C. Vose, Chair, Florida Bar Criminal Procedure Rules Committee, Orlando, Florida, Scott M. Dimond of Dimond, Kaplan and Rothstein, P.A., Miami, Florida, and John F. Harkness, Jr., Executive Director, J. Craig Shaw, Bar Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.
    Carol Jean LoCicero and Deanna K. Shullman of Thomas and LoCicero, PL, Tampa, Florida on behalf of Florida Media Organizations; Carol M. Touhy, Deland, Florida on behalf of the Honorable Diane M. Matousek, Clerk of the Circuit Court, Seventh Judicial Circuit; Arthur I. Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Jacobs and Associates, P.A., Fernandina Beach, Florida and Penny H. Brill, Assistant State Attorney, Eleventh Judicial Circuit, Miami, Florida on behalf of the Florida Prosecuting Attorneys Association; John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, Robert Dewitt Trammell, General Counsel for Florida Public Defender Association, Inc., and. Nancy Daniels, Public Defender, Second Judicial Circuit, Tallahassee, Florida on behalf of Florida Public Defender Association, Inc.; W. Hampton Keen of Lytal, Reiter, Clark, Fountain and Williams, LLP, West Palm Beach, Florida on behalf of Don Fountain, Jr.; the Honorable Judith L. Kreeger, Circuit Judge, Eleventh Judicial Circuit, Chair, Committee on Access to Court Records, Miami, Florida on behalf of Supreme Court Committee on Access to Court Records, Responding with comments.
   PER CURIAM.

At the request of the Court, the Florida Bar’s Rules of Judicial Administration Committee (RJA Committee) has filed an out-of-cycle report proposing procedures for sealing court records. See Fla. R. Jud. Admin. 2.140(f). This report addresses highly serious concerns first identified by Florida news media reports about hidden cases and secret dockets, sometimes called “supersealing.” These reports identified practices that, however unintentional, were clearly offensive to the spirit of laws and rules that ultimately rest on Florida’s well-established public policy of government in the sunshine. We have jurisdiction. See art. V, § 2(a), Fla. Const. As explained below, the public’s constitutional right of access to court records must remain inviolate, and this Court is fully committed to safeguarding this right.

The Florida Constitution mandates that the public shall have access to court records, subject only to certain enumerated limitations, see art. I, § 24, Fla. Const., and this Court has adopted rules of procedure recognizing this right of public access to court records. See Fla. R. Jud. Admin. 2.420. These rules identify a narrow category of court records where public access is automatically restricted by operation of state or federal law or court rule, see Fla. R. Jud. Admin. 2.420(c)(7)-(8), such as in child dependency cases. See, e.g., § 39.0132(3)-(4), Fla. Stat. (2006); Fla. RApp. P. 9.146(f). Otherwise, our rules strongly disfavor court records that are hidden from public scrutiny. The rules provide only a limited veil that is restricted to a second category of court records where a set of carefully defined interests are involved. See Fla. R. Jud. Admin. 2.420(c)(9); see also Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988).

With these principles in mind, the Court today adopts on an interim, emergency basis the amendments to rule 2.420 set forth herein. These amendments provide a procedural vehicle for making circuit and county court records in noncriminal cases confidential under rule 2.420(c)(9), on the one hand, and for unsealing court records that have been made confidential under that rule, on the other hand. The following are among the procedures we adopt:

1. A request to make court records in noncriminal cases confidential must be made by written motion.
2. A public hearing must be held on any contested sealing motion and may be held on certain uncontested sealing motions.
3. A sealing order issued by a court must state with specificity the grounds for sealing and the findings of the court that justify sealing.
4. All sealing orders must be published to the public.
5. A nonparty may file a motion to vacate a sealing order. '
6. A public hearing must be held on any contested motion to vacate a sealing order and may be held on certain uncontested motions to vacate.
7. A court may impose sanctions on any party who files a sealing motion without a good-faith basis and without a sound factual and legal basis.
8. Most significant for our purposes here, by mandating that the'case number, docket number, or other identifying number of a case cannot be made confidential, the removal from public view of all information acknowledging the existence of a case is expressly not allowed.

These procedures, which are intended for use in noncriminal cases, are adopted in the same spirit of openness and transparency that has informed the Court’s case law and rules of procedure throughout its modern history. Their adoption reaffirms our courts’ commitment to ensuring that the public has proper access to court records and case information, and this will prevent a recurrence of the practices that gave rise to the present concerns. The procedures we adopt today are not the Court’s final statement in this area. Given the importance Of this issue, the Court will continue to work with the appropriate committees to achieve uniform statewide procedures to address all aspects of this issue. Specifically, as for criminal case records, we refer the matter back to the appropriate committees for additional study. We also refer to the appropriate rules committees the issue of whether procedures similar to those adopted here are needed to address requests to seal appellate court records.

PROCEDURAL BACKGROUND

In response to media reports concerning hidden cases and secret dockets, the Florida Association of Court Clerks and Comptrollers (FACCC), at the Court’s invitation, suggested amendments to the following rules: Florida Rules of Judicial Administration 2.051 (renumbered 2.420), Public Access to Judicial Branch Records, and 2.075 - (renumbered 2.430), Retention of Court Records, and Florida Rule of Criminal Procedure 3.692, Petition to Seal or Expunge. After the Court reviewed the proposals, Chief Justice Lewis notified the RJA Committee and the Criminal Procedure Rules Committee (CPR Committee) that the Court would like those committees to consider the proposals and to file out-of-cycle proposed rule amendments on an expedited basis to address the concerns raised by the media. Further, the Chief Justice, on behalf of the Court, directed the chief judges of the circuit courts to promptly take the following action: (1) establish a procedure for reviewing sealed cases or sealed court records in their circuits similar to the procedures already established in certain circuits; (2) submit a report explaining the status of their review of such cases or records; and (3) describe the steps taken, or to be taken in the immediate future, to address this issue.

The chief judges subsequently filed their reports. Those reports indicate that the corrective action taken by the chief judges, which included the issuance of administrative orders, has addressed and remedied the immediate public concern about the sealing of court records or dockets. The procedures implemented, however, vary from circuit to circuit. This lack of uniformity underscores the urgent need for adoption of a uniform statewide rule. Pursuant to this goal, the RJA Committee filed its report proposing new rule 2.420(d), Request to Make Circuit and County Court Records Confidential. The committee approved the proposal by a vote of twenty-five to zero. The Executive Committee of The Florida Bar Board of Governors approved it by a vote of nine to zero. The Court scheduled oral argument and published the proposal for comment in the December 15, 2006, edition of The Florida Bar News. Comments were filed by several entities.

After the CPR Committee was granted an extension of time in which to file its report, the Chief Justice, on behalf of the Court, asked that committee to also consider whether a rule of criminal procedure is needed to address a related concern about a reported practice of altering court records to protect confidential informants. Just prior to oral argument in this case, the CPR Committee filed its report recommending adoption of the RJA Committee’s proposed amendments to rule 2.420 with several changes suggested by the Florida Prosecuting Attorneys Association (FPAA), as explained below. Alternatively, the CPR Committee recommends that the Court return this matter to the committee for consideration of new Rule of Criminal Procedure 3.693, which would govern requests to make records confidential in criminal cases and which was proposed by the Miami-Dade State Attorney’s Office. Because the CPR Committee’s report contained no separate proposed rule amendments, the report was treated as a comment in this case. Oral argument in the present case was held on March 5, 2007.

LEGAL BACKGROUND

Pursuant to the policy of open government, Florida electors in 1992 adopted article I, section 24, Florida Constitution, sometimes called the Sunshine Amendment, effective July 1, 1993, which applies to all branches of state government, including our courts, and provides as follows in relevant part:

SECTION 24. Access to public records and meetings.—
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder....
(d) All laws that are in effect on July 1, 1993, that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.

Art. I, § 24, Fla. Const, (emphasis added).

Anticipating adoption of the Sunshine Amendment, the Court, effective October 29, 1992, adopted Florida Rule of Judicial Administration 2.051, which was recently renumbered rule 2.420. Rule 2.420 provides as follows in relevant part:

RULE 2.420 PUBLIC ACCESS TO JUDICIAL BRANCH RECORDS
(a) Scope and Purpose. Subject to the rulemaking power of the Florida Supreme Court provided by article V, section 2, Florida Constitution, the following rule shall govern public access to the records of the judicial branch of government. The public shall have access to all records of the judicial branch of government, except as provided below.
(c) Exemptions. The following records of the judicial branch shall be confidential:
(7) All records made confidential under the Florida and United States Constitutions and Florida and federal law;
(8) All records presently deemed to be confidential by court rule, including the Rules for Admission to the Bar, by Florida Statutes, by prior case law of the State of Florida, and by the rules of the Judicial Qualifications Commission;
(9) Any court record determined to be confidential in case decision or court rule on the grounds that [the Barron factors are satisfied].

Fla. R. Jud. Admin. 2.420 (emphasis added).

Rule 2.420 recognizes a narrow category of court records where public access is automatically restricted by operation of state or federal law or court rule. See Fla. R. Jud. Admin. 2.420(c)(7)-(8). For records in this category, the State itself, through law and court rule, has identified specific privacy or government interests that clearly outweigh the public’s right to know. These interests have been identified through the democratic process either in the Legislature or through the Court’s public rule-making process. Rule 2.420 also identifies a separate category of court records where parties can assert a narrow set of carefully defined interests that may justify the closing of all or part of the record. See Fla. R. Jud. Admin. 2.420(c)(9). In these circumstances, courts may enter a sealing order only if reasonable public notice of the order is given so that the media and other third parties can exercise their right to challenge the propriety of the order once issued. These individualized sealing orders must meet the test first defined in Barron and subsequently codified in rule 2.420.

The subject of the present case, new rule 2.420(d), Request to Make Circuit and County Court Records in Noncriminal Cases Confidential, applies only to the latter category of court records. Court records that fall within the former category currently are being studied, in a separate matter, by the Court’s Committee on Access to Court Records (Access Committee).

NEW SUBDIVISION (d), REQUEST TO MAKE CIRCUIT AND COUNTY COURT RECORDS IN NONCRIMINAL CASES CONFIDENTIAL

The Court adopts proposed new subdivision (d) of rule 2.420 as submitted by the RJA Committee with the changes noted herein. The RJA Committee acknowledged at oral argument that the new subdivision was designed for use in civil, not criminal, cases, and we so limit its scope. We change the title and certain language in the subdivision to reflect the rule’s limitation to noncriminal cases. The major provisions of new subdivision (d), Request to Make Circuit and County Court Records in Noncriminal Cases Confidential, are summarized below.

Subdivision (d)(1) provides that a request to make records confidential under subdivision (c)(9) must be made via written motion. The parties may not merely submit an agreed-upon order. The motion must be captioned “Motion to Make Court Records Confidential” and must identify with particularity the records to be made confidential and the grounds. The clerk must treat all court records subject to such a motion as confidential pending resolution of the motion. To discourage litigants from using the motion to achieve temporary confidentiality, the moving party must certify that the motion is being made in good faith. The movant also must certify that the motion is supported by a sound factual and legal basis, as suggested by Florida Media Organizations (FMO).

Hearings on an initial motion are addressed in subdivision (d)(2), which provides that the court must hold a hearing on any contested motion and that the court may in its discretion hold a hearing on an uncontested motion. Because the mere filing of a motion has the effect of making materials confidential, a hearing must be held within thirty days after the filing of the motion. The hearings are open to the public, although a party may seek to hold all or a portion of the hearing in camera if necessary to protect any of the interests listed in subdivision (c)(9)(A). The moving party is responsible for ensuring that a record of the hearing is made. Prior public notice of the hearing is not automatically required, though the court in its discretion may require such notice.

The content of a sealing order is addressed in subdivision (d)(3), which seeks to eliminate confusion in clerks’ offices regarding the intent of sealing orders by requiring that an order granting a sealing request must contain as much detail as possible. This must be done without revealing the information that is being made confidential. Details include case type, grounds for seeking confidentiality, parties’ names or pseudonyms, whether the progress docket is to be confidential, the court records that are to be confidential, and the names of persons who are permitted access. The order also must contain specific findings that the degree, duration, and manner of confidentiality are no broader than necessary to protect the interests listed in (c)(9)(A), and that there are no less restrictive measures available to protect those interests. It also must direct the clerk to publish the order. These requirements are intended to ensure that sealing orders that are agreed upon by the parties are not entered until the court has independently verified that sealing is indeed warranted.

Public notice of a sealing order is addressed in subdivision (d)(4), which sets forth the procedures for court clerks to follow in giving public notice of a sealing order. The clerk must post a copy of the order on the clerk’s website and in a public location in the courthouse within ten days following entry of the order. The order must remain posted in both locations for at least thirty days, as urged by FMO. Current subdivision (c)(9)(D), which is a brief, general statement providing that reasonable public notice of a sealing order must be given, is deleted and supplanted by this new subdivision (d)(4).

The procedure by which a nonparty may challenge a sealing order is set forth in subdivision (d)(5). The procedure is similar to the procedure for requesting that court records be made confidential. The request to vacate a confidentiality order must be made in writing and provide as much detail as possible regarding the bases for relief. Because there will be times when party names are made confidential, the rule provides a procedure whereby the court will be responsible for serving a challenge motion on the parties. A hearing must be held on a contested challenge motion, and the court in its discretion may hold a hearing on an uncontested motion. Challenge hearings must be open to the public, though a party may seek to hold a portion or all of the hearing in camera if necessary to protect the interests listed in subdivision (c)(9)(A). The movant must ensure that a record of the hearing is made.

With respect to subdivision (d)(5), FMO proposes that the proponent of closure should bear the burden of establishing the propriety of closure in all such proceedings, including in any subsequent proceedings to vacate closure orders.. The Access Committee proposes that, on a motion to vacate, the burden of proving each of the elements of closure should remain on the proponent of closure in those cases where no prior adversarial hearing took place. We note, however, that under the new subdivision, regardless of whether a closure motion is contested or not, the court must state with specificity its grounds for closure under subdivision (c)(9)(A) and also must make specific findings supporting its ruling with respect to the (c)(9)(B) and (C) factors. Accordingly, we agree with the RJA Committee that it is reasonable to accord such an order a presumption of correctness and to require that the movant seeking to vacate such an order bear the burden of showing that the order is unsound.

Because a motion to make records confidential has the effect of making materials temporarily confidential merely by its filing, subdivision (d)(6) provides that if a motion is not made in good faith and supported by a sound legal and factual basis the court may impose sanctions upon the movant. And finally, subdivision (d)(7) provides that court records made confidential under this rule must be treated as confidential during any appellate proceedings.

CONCLUSION

We hereby adopt the amendments to the Florida Rules of Judicial Administration as set forth in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The court and committee commentary are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon issuance of this opinion and shall supersede any conflicting procedures established by administrative order. Because the RJA Committee did not focus on the sealing of court records in criminal cases and because the CPR Committee asked that this matter be returned to that committee if the Court declines to adopt FPAA’s proposals, the Court adopts new subdivision (d) on an interim basis and returns this matter to both rules committees to work together to propose rule amendments to address the sealing of court records in criminal cases. We also ask the RJA Committee to work with the Appellate Court Rules Committee to consider the need for rules governing requests to seal appellate court records.

We note that any procedures that the Court adopts, whether today or in the future, to address this issue are only as good as the manner in which they are applied and enforced. In this respect, Florida’s trial courts and court clerks are the first line of action. We are confident that trial judges and clerks of court will remain ever vigilant of the courts’ longstanding presumption in favor of open records. See Barron, 531 So.2d at 118 (“First, a strong presumption of openness exists for all court proceedings. A trial is a public event, and the filed records of court proceedings are public records available for public examination.”).

We thank the chief judges of the circuit courts for promptly taking the steps necessary to ensure that the public has proper access to court records in their respective circuits. We also extend our sincere appreciation to the Rules of Judicial Administration Committee, the Criminal Procedures Rules Committee, the Florida Association of Court Clerks and Comptrollers, and the commentators for their insight and .assistance in addressing this important matter.

We conclude with an observation. This Court would never have learned of the concerns we seek to address here had it not been for the media. For that, Florida’s media are to be commended. The pioneering broadcast journalist Edward R. Murrow is reported to have observed that the two things that truly distinguish a free society from all others are an independent judiciary and a free press. In this instance, the free press has shown its value to the people of Florida by helping the judiciary identify and quickly correct unintended practices that tended to undermine public trust and confidence in our courts.

It is so ordered.

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

APPENDIX

RULE 2.420. PUBLIC ACCESS TO JUDICIAL BRANCH RECORDS

(a)-(b) (No Change)

(c) Exemptions. The following records of the judicial branch shall be confidential:

(1) — (8) (No Change)

(9) Any court record determined to be confidential in case decision or court rule on the grounds that

(A) confidentiality is required to

(i)-(vii) (No Change)

(B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A); and

(C)no less restrictive measures are available to protect the interests set forth in subdivision (A)j-and

(B-L-except as provided by law or rule of-court, reasonable notice shall be given to the public of any-order closing any court record.

(10) (No Change)

(d) Request to Make Circuit and County Court Records in Noncriminal Cases Confidential.

(1) A request to make circuit and county court records in noncriminal cases confidential under- subdivision (c)(9) must be made in the form of a written motion captioned “Motion to Make Court Records Confidential.” A motion made under this subdivision must:

(A) identify the particular court records the movant seeks to make confidential with as much specificity as possible without revealing the information to be made confidential; and

(B) specify the bases for making such court records confidential.

Any motion made under this subdivision must include a signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis. The court records that are subject to a motion made under this subdivision must be treated as confidential by the clerk pending the court’s ruling on the motion. Notwithstanding any of the foregoing, the court may not make confidential the case number, docket number, or other number used by the clerk’s office to identify the case file.

(2) Except when a motion filed under subdivision (d)(1) represents that all parties agree to all of the relief requested, the court must, as soon as practicable but no later than 30 days after the filing of a motion under this subdivision, hold a hearing before ruling on the motion. Whether or not any motion filed under subdivision (d)(1) is agreed to by the parties, the court may in its discretion hold a hearing on such motion. Any hearing held under this subdivision must be an open proceeding, except that any party may request that the court conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A). The moving: party shall be responsible for ensuring that a complete record of any hearing held pursuant to this subdivision be created, either by use of a court reporter or by any recording device that is provided as a matter of right by the court. The court may in its discretion require prior public notice of the hearing on such a motion in accordance with the procedure for providing public notice of court orders set forth in subdivision (d)(4) or by providing such other public notice as the court deems appropriate.

(3)Any order granting in whole or in part a motion filed under subdivision (d)(1) must state the following with as much specificity as possible without revealing information made confidential:

(A) The type of case in which the order is being entered;

(B) The particular grounds under subdivision (c)(9)(A) for making the court records confidential;

(C) Whether any party’s name is to be made confidential and, if so, the particular pseudonym or other term to be substituted for the party’s name;

(D) Whether the progress docket or similar records generated to document activity in the case are to be made confidential;

(E) The particular court records that are to be made confidential;

(F) The names of those persons who are permitted to view the confidential court records;

(G) That the court finds that: (i) the degree, duration, and manner of confidentiality ordered by the court is no broader than necessary to protect the interests set forth in subdivision (c)(9)(A); and (ii) no less restrictive measures are available to protect the interests set forth in subdivision (c)(9)(A); and

(H) That the clerk of the court is directed to publish the order in accordance with subdivision (d)(4).

(4) Except as provided by law or court rule, notice must be given of any order granting a motion made under subdivision (d)(1) as follows. Within 10 days following the entry of the order, the clerk of court must post a copy of the order on the clerk’s website and in a prominent, public location in the courthouse. The order must remain posted in both locations for no less than 30 days.

(5) If a nonparty requests that the court vacate all or part of an order issued under subdivision (d)(3), the request must be made in the form of a written motion that states with as much specificity as possible the bases for the request. The movant must serve all parties in the action with a copy of the motion. In the event that the subject order specifies that the names or addresses of one or more parties are to be made confidential, the movant must state prominently in the caption of the motion “Confidential Party — Court Service Requested.” When a motion so designated is filed, the court shall be responsible for providing a copy of the motion to the parties in such a way as to not reveal the confidential information to the movant. Except when a motion filed under this subdivision represents that all parties agree to all of the relief requested, the court must hold a hearing before ruling on the motion. Whether or not any motion filed under this subdivision is agreed to by the parties, the court may in its discretion hold a hearing on such motion. Any hearing held under this subdivision must be an open proceeding, except that any party may request that the court conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A). The movant shall be responsible for ensuring that a complete record of any hearing held under this subdivision be created, either by use of a court reporter or by any recording device that is provided as a matter of right by the court.

(6) If the court determines that a motion made under subdivision (d)(1) was not made in good faith and supported by a sound legal and factual basis, the court may impose sanctions upon the movant.

(7) Court records made confidential under this rule must be treated as confidential during any appellate proceedings. In any case where an order making court records confidential remains in effect as of the time of an appeal, the clerk’s index must include a statement that an order making court records confidential has been entered in the matter and must identify such order by date or docket number.

(de) Judicial Review of Denial of Access Request. Expedited review of denials of access to records of the judicial branch shall be provided through an action for mandamus, or other appropriate appellate remedy, in the following manner:

(1) — (2) (No Change)

(ef) Procedure. Requests and responses to requests for access to records under this rule shall be made in a reasonable manner.

(1) — (3) (No Change)

Committee Commentary

[1995 Amendment.] (No Change)

2002 Court Commentary

(No Change)

2005 Court Commentary

(No Change)

2007 Court Commentary

New subdivision (d) applies only to motions that seek to make court records in noncriminal cases confidential in accordance with subdivision (c)(9).

2007 Committee Commentary

Subdivision (d)(2) is intended to permit a party to make use of any court-provided recording device or system that is available generally for litigants’ use, but is not intended to require the court system to make such devices available where they are not already in use and is not intended to eliminate any cost for use of such system that is generally borne by a party requesting use of such system.

      . See, e.g., In re Amendments to Fla. Rules of Jud. Admin.-Pub. Access to Jud. Records, 608 So.2d 472 (Fla.1992); Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988); Miami Herald Publ’g Co. v. Lewis, 426 So.2d 1 (Fla.1982).

      . See In re Amendments to Fla. Rules of Jud. Admin — Reorganization of Rules, 939 So.2d 966, 1005 (Fla.2006).

      . See id. at 1006.

      . The RJA Committee concluded that any change to rule 2.430, Retention of Court Records, is secondary to the issue at hand and should be considered later.

      . Comments were filed by the following entities: Florida Media Organizations (FMO); Diane M. Matousek, Clerk of the Circuit Court, Volusia County; Attorney Don Fountain; the Florida Supreme Court Committee on Access to Court Records (Access Committee); the Florida Prosecuting Attorneys Association (FPAA); and the Florida Public Defender Association, Inc. (FPDA).

        . See In re Amendments to Fla. Rules of Jud. Admin. — Pub. Access to Jud. Records, 608 So.2d 472 (Fla. 1992).

      . See In re Amendments to Fla. Rules of Jud. Admin. — Reorganization of Rules, 939 So.2d 966, 1005 (Fla.2006).

      . The factors, which are derived from the holding of Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla.1988), are set forth in rule 2.420(c)(9) as follows:
      (9) Any court record determined to be confidential in case decision or court rule on the grounds that
      (A)confidentiality is required to
      (i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;
      (ii) protect trade secrets;
      (iii) protect a compelling -governmental interest;
      (iv) obtain evidence to determine legal issues in a case;
      (v) avoid substantial' injury to innocent third parties;
      (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed;
      (vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law;
      (B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A);
      (C) no less restrictive measures are available to protect the interests set forth in subdivision (A); and
      (D) except as provided by law or rule of court, reasonable notice shall be given to the public of any order closing any court record.
      Fla. R. Jud. Admin. 2.420(c)(9).

      . See supra note 8.

      . See Committee on Access to Court Records, Fla. Admin. Order No. AOSC06-27 (Aug. 21, 2006) (on file with Clerk, Fla. Sup.Ct.).

      . None of the committees or commentators has urged that public notice of the mere filing of a closure motion should be a requirement under this subdivision; this is consistent with existing precedent in this area. See generally Fla. R. Jud. Admin. 2.420, Comm. Commentary, 1995 Amendment (iterating the relevant law in this area and citing relevant precedent).

      . Because new subdivision (d) applies only to noncriminal cases and because the issue of a procedure for use in criminal cases will be further addressed by the committees, the Court declines at this time to adopt proposed new subdivision (d)(8), which provides that requests to seal or expunge criminal history records must be made in accordance with Florida Rule of Criminal Procedure 3.692.

      . Both the Florida Prosecuting Attorneys Association (FPAA) and the Florida Public Defender Association (FPDA) propose that the new subdivision, in order to protect confidential informants, should provide that sealing orders in criminal cases must be kept confidential and not posted. The CPR committee agrees with this position. Because new subdivision (d) as adopted is limited to noncriminal cases, however, we decline to adopt the proposals.


text:
    Derrick L. WYCHE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0244.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2007.
    Rehearing Denied April 10, 2007.
    Derrick L. Wyche, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Brett Zane BASS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5605.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Rehearing Denied April 23, 2007.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Taylor v. State, 444 So.2d 931 (Fla.1983).

WOLF, VAN NORTWICK, and LEWIS, JJ., Concur.


text:
    HCA HEALTHCARE CORP., and Broadspire Services, Inc., Petitioners, v. Louis MANNARINO, Respondent.
    No. 1D06-6315.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Rehearing Denied April 19, 2007.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973 (Fla. 4th DCA 2003).

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    Hardrick GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6414.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    Rehearing Denied April 25, 2007.
    Hardrick Green, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of January 25, 2007, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on December 1, 2006, appealing the order denying the appellant’s motion for postcon-viction relief rendered on October 4, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). Thus, this appeal is hereby dismissed.

DISMISSED.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Phillip ADLINGTON, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-5452.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Rehearing Denied April 20, 2007.
    Phillip Adlington, pro se, Appellant.
    Bill McCollum, Attorney General; Kathleen Von Hoene, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to our order of December 18, 2006, we have determined that the Order Striking Motion for Rehearing is not an appeal-able order. Fla. R.App. P. 9.130(a)(4); Lewis v. State, 928 So.2d 384 (Fla. 1st DCA 2006). Accordingly, the appeal is dismissed for lack of jurisdiction.

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., concur.


text:
    Phillip ADLINGTON, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-5454.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Rehearing Denied April 20, 2007.
    Phillip Adlington, pro se, Appellant.
    Bill McCollum, Attorney General; Kathleen Von Hoene, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to our order of November 8, 2006, we have determined that the Order Striking Motion for Rehearing is not an appeal-able order. Fla. R.App. P. 9.130(a)(4); Lewis v. State, 928 So.2d 384 (Fla. 1st DCA 2006). Accordingly, the appeal is dismissed for lack of jurisdiction.

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., concur.


author: THOMAS, J.

text:
    LANDMARK TOWERS, LLC, and Aequicap Insurance Company/Claims Control, Appellants, v. Francisco IBARGUEN, Appellee.
    No. 1D06-607.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Rehearing Denied April 26, 2007.

      H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellants.
    Barbara B. Wagner of Waggenheim & Wagner, P.A., Fort Lauderdale; and Rodrigo L. Saavedra, Jr., Fort Lauderdale, for Appellee.
   THOMAS, J.

Appellants-Employer/Carrier (E/C) appeal the Judge of Compensation Claims’ (JCC) determination that Claimant’s workplace injury is the major contributing cause of his need for knee surgery. Although we might reach a different result were we the factfinder, we cannot exercise that authority and must affirm because the JCC’s conclusion is supported by competent, substantial evidence.

Claimant was injured when an air conditioning unit he was installing fell on him. E/C accepted the accident as compensable, but denied further treatment, contending that Claimant’s preexisting osteoarthritis was the major contributing cause of his current need for knee replacement surgery.

Testimony at the merits hearing established that knee replacement surgery was medically necessary only because Claimant had ongoing knee pain and evidence of arthritis. Claimant testified that he had no pain before the workplace accident and was able to fully perform his duties as a maintenance worker. E/C introduced an emergency room record, admitted only as fact evidence, showing that Claimant received emergency room treatment one time in 1988. Claimant then admitted that a knee inflammation precipitated this visit, but said this was a minor injury, explaining that he occasionally had pains requiring emergency room visits due to his work as a manual laborer. Claimant testified that this was his only occurrence of knee pain before the accident. No other records were introduced showing that he received treatment at any other time on his knee, and the JCC found that any knee pain Claimant suffered was resolved shortly after the emergency room visit.

The JCC accepted the testimony of Dr. Babak Sheikh, orthopedic surgeon, that the workplace accident is the major contributing cause of Claimant’s need for surgery. Dr. Sheikh testified that he based his opinion on Claimant’s self-reported asymptomatic history of knee pain and admitted that if medical records showed that Claimant had received prior treatment for arthritis, such as injections, his opinion might change. E/C argues that Dr. Sheikh’s conclusion regarding major contributing cause was not based on logic and reason, and thus must be rejected.

While we might disagree with the JCC’s conclusion regarding major contributing cause and choose to accept other medical testimony introduced below which conflicts with Dr. Sheikh’s testimony, we cannot substitute our conclusions for that of the JCC. It is within the JCC’s discretion to resolve a conflict in the evidence and make credibility determinations. Stacy v. Venice Isles Mobile Home Park, 635 So.2d 1039, 1042 (Fla. 1st DCA 1994). Dr. Sheikh’s testimony is not unsupported by logic and reason, as Claimant testified that he had no prior knee complaints, other than one minor injury, and no evidence was introduced to show that he experienced any arthritic pain prior to the accident. Cf. Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 559, 561 (Fla.1957) (rejecting deputy commissioner’s determination that a minor fall caused claimant’s husband to suffer a fatal heart attack when the expert’s medical opinion was based on an assumption, for which there was no record support, that the husband experienced symptoms between the fall and the fatal heart attack occurring two days later). The JCC, as factfinder, accepted Claimant’s testimony as truthful, and we must therefore affirm.

BARFIELD and VAN NORTWICK, JJ., concur.