author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. Nicholas CAPPALO, Appellee.
    No. 2D04-3365.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   CANADY, Judge.

The State appeals the trial court’s order granting Nicholas Cappalo’s motion for judgment of acquittal on charges of aggravated fleeing and eluding and attempted aggravated assault. We conclude that the trial court erred in determining that the jury’s guilty verdicts for aggravated fleeing and eluding and attempted aggravated assault were impermissibly inconsistent with the not guilty by reason of insanity verdicts returned for related offenses of burglary and grand theft.

I. Background,

Cappalo was charged by information with aggravated fleeing and eluding, aggravated assault with a deadly weapon without intent to kill, burglary and grand theft. At trial, testimony was presented regarding the alleged burglary and grand theft, the substance of which is not important for purposes of this appeal. Other testimony provided by various law enforcement officers indicated that several times during a high-speed pursuit, which immediately followed the charged burglary and theft, Cappalo tried to run a sheriffs deputy off the road. When Cappalo was ultimately apprehended, he acted excited and made an unusual comment, yet the law enforcement officers testified that Cappalo was coherent and acknowledged he had seen the officers pursuing him.

Two psychologists testified that Cappalo suffered from bipolar disorder with psychotic features and paranoia and that he was not sane at the time of the crimes. The State, however, provided rebuttal testimony from another psychologist who agreed there were some mental health issues, but opined that Cappalo was sane at the time of the crimes.

After presentation of the evidence and closing arguments, the jury was given the standard jury instruction providing that “the evidence applicable to [each crime] must be considered separately” and “[a] finding of guilty or not guilty as to one crime must not affect your verdict as to the other crime(s) charged.” The jury found Cappalo not guilty by reason of insanity on the burglary and grand theft charges. Conversely, the jury found Cap-palo guilty of aggravated fleeing and eluding and attempted aggravated assault, a lesser-included charge of aggravated assault with a deadly weapon.

Cappalo filed a motion for judgment of acquittal/new trial, alleging the crimes were all part of one criminal episode and because the jury acquitted him by reason of insanity on the grand theft charge, he did not have the requisite intent or frame of mind to commit the crimes of aggravated fleeing and eluding and attempted aggravated assault. Cappalo’s motion also alleged that the State failed to prove he was sane at the time of the crimes.

At the motion hearing, when defense counsel argued the verdicts were inconsistent, the trial court commented' that the verdicts could be the result of a jury pardon. Defense counsel disputed the idea of a jury pardon and argued that someone could not be insane during the commission of two crimes and then immediately thereafter regain sanity. The State maintained the position that the verdicts were not impermissibly inconsistent.

After considering the arguments, the trial court agreed there was one continuing transaction and noted that there was no evidence that Cappalo’s sanity or insanity was episodic. . The court then stated, in relevant part:

To find him not guilty by reason of insanity on the initial two counts which started this whole transaction, which was very short in duration, and a finding of guilty on the second two counts that followed closely thereafter is totally inconsistent and boggles the reasoning as far as I’m concerned. He’s either in or he’s out on the whole thing, either sane from the beginning to the end or insane from beginning to end.
Im for that reason denying the motion for new trial but granting the [Judgment of acquittal].

Subsequently, the trial court entered an order setting aside the guilty verdicts and adjudicating Cappalo not guilty by reason of insanity on the aggravated fleeing and eluding and attempted aggravated assault charges. This appeal followed.

II. Analysis

“As a general rule, inconsistent verdicts are permitted in Florida” because “jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant.” State v. Powell, 674 So.2d 731, 732-33 (Fla.1996). Inconsistent vex'dicts are ordinarily considered to arise from a jury’s exercise of its “inherent authority to acquit” even if the facts support a conviction. State v. Connelly, 748 So.2d 248, 253 (Fla.1999).

The sole exception from the general rule permitting inconsistent verdicts “come[s] into play when verdicts against one defendant refer to legally interlocking charges.” Id. at 252. “This exception [is] referred to as the ‘true’ inconsistent verdict exception-” Powell, 674 So.2d at 733. Inconsistent verdicts on factually interlocking charges, which are permissible, are distinguished from the impermissible inconsistent verdicts on legally interlocking charges. See Connelly, 748 So.2d at 252 (“We have not extended the truly inconsistent verdict exception to verdicts that are factually inconsistent.”).

Such impermissible inconsistent verdicts are “those in which an acquittal on one count negates a necessary element for conviction on another count.” Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983). Inconsistent verdicts thus are impermissible “where an acquittal of the underlying felony effectively holds the defendant innocent of a greater offense involving that same felony.” Gonzalez v. State, 449 So.2d 882, 887 (Fla. 3d DCA 1984).

For example, the verdicts are im-permissibly inconsistent where a defendant is convicted of felony murder but convicted of only a misdemeanor rather than the underlying felony, see Mahaun v. State, 377 So.2d 1158, 1161 (Fla.1979), or where a defendant is convicted of possession of a firearm during the commission of a felony but convicted of only a misdemeanor rather than the underlying felony, see Redondo v. State, 403 So.2d 954, 956 (Fla.1981). Such cases involve an offense that as a matter of law cannot be committed unless another underlying offense has also been committed. The commission of the underlying offense is a necessary element of the other offense. Where a defendant is charged with such legally interlocking offenses and is effectively acquitted of the underlying offense, a guilty verdict on the other offense is an impermissible inconsistent verdict. Because “the underlying felony [is] a part of the crime charged[,] without the underlying felony the charge [can]not stand.” Eaton v. State, 438 So.2d 822, 823 (Fla.1983).

The offenses charged against Cap-palo were not legally interlocking offenses. The offenses of aggravated fleeing and eluding and attempted aggravated assault are not predicated as a matter of law on the other offenses charged against Cappa-lo. The jury’s determination that Cappalo was not guilty by reason of insanity on the burglary and grand theft charges is unquestionably factually inconsistent with the jury’s guilty verdicts on the aggravated fleeing and eluding and attempted assault charges. As the foregoing authorities make clear, however, such a factual or logical inconsistency is permissible under Florida law. See also Lleo v. State, 601 So.2d 1292, 1293 (Fla. 1st DCA 1992) (holding that verdict of not guilty by reason of insanity on one charge was not impermissibly inconsistent with guilty verdict on related charges but that “jury’s verdicts reflect only what has been referred to as a ‘logical inconsistency’ ”).

III. Conclusion

Accordingly, the trial court erred in determining that the verdicts were impermis-sibly inconsistent and in granting Cappa-lo’s motion for judgment of acquittal. We reverse the judgment of acquittal on the aggravated fleeing and eluding and attempted aggravated assault charges and remand for further proceedings consistent with this opinion.

Reversed and remanded. ,

CASANUEVA and SALCINES, JJ., Concur.

      . Compare Pitts v. State, 425 So.2d 542 (Fla.1983), which held that the verdicts were not impermissibly inconsistent where the defendant was found not guilty of aggravated battery but guilty of the possession of a firearm during the commission of an aggravated battery. In Pitts, 425 So.2d at 543, the court reasoned that "[t]he occurrence of an aggravated battery is not a prerequisite to a finding of guilt on the possession charge. An attempted aggravated battery is sufficient.” The court did not address the significance of the absence of a verdict on the offense of attempted aggravated battery. See also McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), aff'd, 425 So.2d 1 (Fla.1983).


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Keith Allen SHEPHERD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2848.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2006.
   STRINGER, Judge.

Keith Allen Shepherd appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), the supplements to his rule 3.800(a) motion, and his motion for rehearing. We affirm the summary denial of all of Shepherd’s claims. As to three of Shepherd’s claims, our affir-mance is without prejudice to Shepherd’s refiling these claims in a facially sufficient motion to correct illegal sentence filed pursuant to rule 3.800(a).

In 1994, Shepherd was originally convicted, after a jury trial, of first-degree murder (count one), robbery (count two), grand theft of a motor vehicle (count four), arson (count five), grand theft (count six), and dealing in stolen property (count seven). On direct appeal, the conviction for grand theft was vacated. Shepherd v. State, 659 So.2d 399 (Fla. 2d DCA 1995). Pursuant to a series of motions for post-conviction relief, Shepherd was ultimately resentenced as a habitual felony offender (HFO), on November 20, 1998, for counts one, two, four, five, and seven. It appears from the portions of the record currently before this court that the sentences on counts five and seven were to run consecutive to the sentence on count one.

Shepherd originally filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He then filed an amended motion alleging that his consecutive HFO sentences for counts five and seven were illegal because he was given a guidelines sentence as to count one and the HFO sentences running consecutive to count one would prevent him from preserving his entitlement to controlled release. This court affirmed the summary denial of Shepherd’s original rule 3.850 motion but reversed for the newly added claim to be considered as a rule 3.800(a) claim. Shepherd v. State, 890 So.2d 333 (Fla. 2d DCA 2004).

On remand, in considering the newly added claim under rule 3.800(a), the post-conviction court failed to consider whether Shepherd’s claim was, in fact, facially sufficient. The posteonviction court addressed the merits of Shepherd’s claim, concluding that Shepherd was sentenced as an HFO for count one, thereby allowing the court to properly run his sentences for counts five and seven consecutive to count one. The postconviction court relied on section 775.021(4)(a), Florida Statutes, to conclude that it was permissible to sentence a defendant to consecutive sentences for separate crimes which occur as part of the same criminal episode.

In his motion for rehearing, Shepherd correctly pointed out that if he was actually sentenced as an HFO for count one, then he was incorrectly habitualized for an offense that was a capital felony. See Parrimon v. State, 644 So.2d 95 (Fla. 2d DCA 1994). Shepherd additionally claimed that section 775.021(4)(a) cannot be used to impose consecutive HFO sentences for offenses that occurred as part of the same criminal episode. See Murray v. State, 890 So.2d 451 (Fla. 2d DCA 2004). Furthermore, Shepherd claimed that if he did not receive an HFO sentence as to count one, then he could not properly be sentenced as an HFO for counts five and seven when those sentences will run consecutively to his non-HFO sentence in count one. See Marion v. State, 850 So.2d 618 (Fla. 2d DCA 2003).

There is not enough in the record before this court to determine whether Shepherd’s convictions were all part of the same criminal episode. Furthermore, as Shepherd has not alleged, nor did the trial court address, whether his claims could be determined from the face of the record, we have no way of knowing whether Shepherd might be entitled to possible relief pursuant to rule 3.800(a) as to any of the three above-mentioned claims. Accordingly, our affirmance is without prejudice to Shepherd’s raising these three claims in a facially sufficient rule 3.800(a) motion to correct illegal sentence. See Thomas v. State, 916 So.2d 24 (Fla. 2d DCA 2005). Any such motion filed by Shepherd shall not be considered successive.

Affirmed.

SILBERMAN and CANADY, JJ., Concur.


author: WARNER, J.

text:
    Lazaro MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2713.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2006.

      Lazaro Martinez, Moore Haven, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the trial court’s order denying the appellant’s Florida Rule of Criminal Procedure 3.800(a) motion seeking additional jail credit for time spent in jail in Miami-Dade County. The appellant claimed that he was arrested on a warrant from Broward County while he was being held in Miami-Dade on other charges. He attached to his motion an arrest affidavit from the Miami-Dade Police. Thus, based upon Gethers v. State, 838 So.2d 504 (Fla.2003), he contended that he was entitled to jail credit on his Broward County sentence for the time spent in Miami-Dade jail after his arrest. However, the state responded to his motion, providing evidence that the Broward Sheriffs Office only notified Miami-Dade County authorities that a detain-er or hold should be placed on the appellant. In that circumstance, the appellant would not be entitled to jail credit for the time spent in the Miami-Dade facility while awaiting conclusion of his Miami-Dade charges. See Gethers, 838 So.2d at 508.

It is apparent that this issue cannot be resolved in a rule 3.800(a) proceeding, because the issue requires consideration of matters outside the record before the court in Broward County, including the teletypes between the Broward Sheriffs Office and the Miami-Dade Police, as well as the arrest affidavit signed in Miami-Dade.

We therefore affirm the order denying relief under rule 3.800(a), but we do so without prejudice to the appellant filing a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 to resolve the factual issues regarding whether the appellant was actually arrested on the Broward warrant while in the Miami-Dade jail.

POLEN and MAY, JJ., concur.


author: LAWSON, J.

text:
    AUGLINK COMMUNICATIONS, INC., Appellant, v. Frederick J. CANEVARI, as Trustee, etc., Appellee.
    No. 5D05-1009.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2006.

      T. Geoffrey Heekin and Dana R. Blunt of Heekin, Malin & Wenzel, P.A., Jacksonville, for Appellant.
    Robert L. McLeod, II, of The McLeod Firm, St. Augustine, for Appellee.
   LAWSON, J.

Auglink Communications, Inc., (“Au-glink”), appeals a final order awarding attorneys’ fees to Frederick J. Canevari, Trustee, (“Canevari”).

The material facts are not in dispute. On January 25, 1999, Auglink executed and delivered a promissory note, and a second mortgage securing payment on the note, to Canevari in exchange for certain real property. The note required monthly payments and contained the following attorney fee provision:

Each maker and endorser ... agrees to pay all costs, including a reasonable attorney’s fee, whether suit brought or not, if counsel shall after maturity of this note or default hereunder or under said mortgage, be employed to collect this note or to protect the security thereof.

Auglink made multiple late payments and incurred late fees over the first two years. After several missed payments in early 2001, Canevari ultimately declared Auglink in default, and accelerated the payments pursuant to terms of the note.

In response, Auglink filed a two count complaint against Canevari requesting declaratory and injunctive relief (count I), and alleging trespass (count II). In count I, Auglink requested the court to determine, inter alia, whether Auglink was in default of the note and second mortgage. Canevari filed an answer that contained a counterclaim, wherein he sought to foreclose on the mortgage and recover damages due under the note. In the counterclaim, he demanded judgment for costs and attorneys’ fees and alleged:

Plaintiff [Canevari] is obligated to pay the undersigned attorney a reasonable attorney fee for bringing this action, for which attorney fee counterclaim Defendant [Auglink] is liable under the note.

Ultimately, Auglink negotiated what appeared to be a full settlement of all claims related to the note and mortgage, which included payment of Canevari’s attorneys’ fees incurred in collecting payment. Accordingly, in March 2003, Canevari dismissed his counterclaim with prejudice.

On June 4, 2003, however, Auglink filed an amended complaint, adding a new claim for breach of contract. Auglink’s theory was that in settling with Canevari, Auglink had overpaid under the terms of the note. Canevari did not file an answer to the amended complaint. Instead, he filed a motion to dismiss, wherein he asserted that the “new” breach of contract action was brought under the contract and asked the court to award him “attorneys’ fees incurred in defending against this ... cause of action.” As its basis for entitlement to fees, the motion provided: “The plaintiff has alleged this cause of action exists under the parties’ contract, which contains an attorney fee provision.”

When Auglink’s amended complaint was dismissed for failure to seek leave of court before filing, Auglink filed a third amended complaint — again alleging breach of contract and entitlement to prevailing party attorneys’ fees. This time, Canevari answered, but neglected to re-plead entitlement to attorneys’ fees.

Thereafter, however, both parties clearly proceeded under the assumption that the prevailing party would be entitled to an award of attorneys’ fees. Auglink conducted discovery regarding Canevari’s attorneys’ fees, involving both interrogatories and a request for production of documents served in August 2004. Additionally, all settlement discussions appear to have centered around Canevari’s claim for attorneys’ fees.

On August 5, 2004, Auglink filed a motion to dismiss its entire action which the court granted with prejudice. Although Auglink had been actively attempting to negotiate a resolution pursuant to which Canevari would waive his claim for attorneys’ fees, Canevari never agreed. Nonetheless, Auglink unilaterally declared in its notice of dismissal that “each party shall bear their own costs and attorneys’ fees.”

On August 11, 2004, Canevari filed his motion for attorneys’ fees and memorandum of law. A hearing was held on the motion on November 16, 2004. It appears that Auglink failed to raise Canevari’s failure to plead entitlement to fees as a defense until two weeks after the hearing, when it filed a memorandum of law with the trial court.

On appeal, Auglink argues that reversal is warranted because Canevari did not plead entitlement to contractual attorneys’ fees and cites Stockman v. Downs, 573 So.2d 835 (Fla.1991). While Auglink correctly cites the general rule of law in Florida, Stockman contains one limited exception which we find to be applicable here: “Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Id. at 838.

We agree that the pleading requirement set forth in Stockman should be very strictly adhered to, and the narrow exception very rarely used. As explained by this court in Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003): “The purpose of the pleading requirement is notice — by pleading a claim to attorney’s fees, a party notifies the opposing party of the claim and prevents unfair surprise.” The existence or nonexistence of a claim for attorney’s fees may often affect the decision whether to pursue, dismiss or settle a claim. These are clearly paramount concerns. However, in this case it is abundantly clear that there was no surprise caused by Canevari’s failure to plead entitlement to attorneys’ fees in his answer. Auglink was clearly on notice of Canevari’s attorneys’ fee claim from other record filings; Auglink itself pled entitlement to attorneys’ fees under the contract; and, Auglink operated throughout the litigation under the assumption that attorneys’ fees would be awarded to the prevailing party. Therefore, we find this to be one of those rare cases to which the narrow Stockman exception applies.

Additionally, Auglink asserts that the trial court erred in assessing several specific costs not authorized by the Uniform Guidelines for Taxation of Costs in Civil Actions. However, we find that this issue was not sufficiently preserved for appellate review. See Happ v. Moore, 784 So.2d 1091 (Fla.2001) (noting that the specific legal argument, to be preserved for appellate review, must have been raised in the trial court). There is nothing in the record demonstrating that Auglink objected at the hearing on fees and costs to any of the specific cost items it now claims to have been awarded in error. After the trial court issued its ruling, Auglink filed a motion for reconsideration which simply stated that “[t]he taxable costs reported include costs which are not taxable under the Uniform Guideline for Taxation of Costs.” This sort of generalized objection is insufficient to preserve the issue for appellate review because it was insufficient to bring to the trial judge’s attention the specific cost items Auglink claimed to be inappropriate for taxation. Cf. Levine v. Keaster, 862 So.2d 876, 882 (Fla. 4th DCA 2003) (holding that the party opposing an award of fees bears the burden of pointing out with specificity which hours should be deducted).

Canevari is also entitled to appellate attorneys’ fees in an amount to be determined by the trial court on remand. § 59.46, Fla. Stat. (2005).

AFFIRMED and REMANDED.

SHARP, W., and ORFINGER, JJ., concur.

      . Auglink asserts that Canevari refused to settle the claim unless Auglink paid certain fees and costs. Auglink further asserts that it agreed to pay off the note under duress and as a result was forced to pay an amount in excess of its contractual obligation.

      . He also filed a motion for sanctions pursuant to section 57.105, Florida Statutes, which necessarily includes an award of attorneys’ fees. However, here the fee award was based solely on the contract and not the statute.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Miguel FLORES, Appellee.
    No. 2D05-1331.
    District Court of Appeal of Florida, Second District.
    March 8, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court order granting Miguel Flores’ motion to suppress evidence and admissions in its case against him for possession of a controlled substance within 1000 feet of a convenience store and possession of drug paraphernalia. We reverse.

The charges against Flores arose out of a controlled buy in which a confidential informant (“Cl”) that the police had never used before arranged to purchase crack cocaine from one of his suppliers. The Cl had been arrested earlier in the day for possession of cocaine and possession of drug paraphernalia. An officer was present when the Cl arranged the meeting by telephone, and the Cl provided the officers with the following information: The Cl was to meet a man named Chico in fifteen minutes at a particular 7-Eleven to purchase $50 worth of crack cocaine; Chico, a Hispanic male in his midtwenties, would be driving a dark-colored Nissan; Chico would arrive at the west side of the convenience store; and Chico would be alone. A car matching the description given by the Cl arrived at the arranged place at the arranged time; however, there were two people in the car. Officers approached the car with guns drawn and opened the car door. As the driver exited the vehicle, officers observed him drop cocaine from his hand. The officers arrested the driver for possession of cocaine and determined that the driver was Flores.

In his motion to suppress below, Flores argued that officers did not have probable cause to arrest him because the Cl’s veracity and reliability had not been established prior to the arrest. In granting Flores’ motion to suppress, the trial court found that since the Cl was previously unknown to authorities, his reliability had not been established. Additionally, the trial court concluded that the Cl’s tip lacked specificity because “there was no real detail as to Chico’s description such as his height, weight, or even complexion” or as to the model or year of the Nissan. The trial court determined that since the Cl was not previously known to the officers and the specificity and detail of the tip had not been established, the officers were without probable cause for the arrest.

As support for its conclusion that the tip was not sufficiently detailed, the trial court cited Miller v. State, 780 So.2d 151 (Fla. 2d DCA 2000), in which this court reversed the denial of a motion to suppress. In Miller, this court concluded that the tip there, which was similar to the one here, was not sufficiently reliable to provide probable cause to detain Miller. In Miller,

[t]he C.I. ... had never been used by the investigating officers before. He was arrested earlier on the day of these events and, after giving information concerning his drug supplier, was released. By arrangement with the officers, the C.I. used a pay phone to call a pager number that he said belonged to his supplier. The call was returned, and the C.I. stated to the officers that a man named Rolo would arrive at an agreed location to sell him drugs in about fifteen minutes.... The C.I. told the officers where Rolo lived, that he would be driving a maroon Buick with a tan top, and there would be drugs under the seat on the driver’s side of the car.

Id. at 151. The officers in Miller stopped the car a couple of blocks before it arrived at the agreed upon location, immediately ordered Miller out of the car, and searched him. This court concluded, “The information given by the C.I. was not sufficiently reliable so as to provide the officers with the reasonable suspicion needed for a Terry stop nor the probable cause required to search Miller or his vehicle.” Miller, 780 So.2d at 152. In granting the motion to suppress here, the trial court reasoned that if the tip in Miller was not sufficiently reliable to provide probable cause, the one here was not either.

When reviewing a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, Caso v. State, 524 So.2d 422 (Fla.1988), while the trial court’s application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

The basis of the trial court’s granting of the motion to suppress was that the tip did not provide probable cause. However, that is not the issue in this case. The facts found by the trial court do not suggest that the arrest of Flores was based on the information from the Cl, but rather that the arrest came after officers had stopped Flores and observed him discard cocaine. Accordingly, the issue here is whether the tip provided the reasonable suspicion needed to make the initial stop. We conclude that it did.

Although a superficial reading of Miller might suggest otherwise, Miller is not controlling here. In Miller, upon stopping Miller’s car, the police immediately ordered him out of the vehicle and searched him. 780 So.2d at 151-52. As such, the issue there was whether law enforcement had probable cause to stop and search Miller. Although we acknowledge that the opinion in Miller does state that the information provided by the Cl “was not sufficiently reliable so as to provide the officers with the reasonable suspicion needed for a Terry stop,” id. at 152, that language, at best, is dicta. The facts of that case did not involve a Terry stop, but rather a stop and immediate search. Accordingly, the holding of Miller is that the tip was not sufficient to provide probable cause for a search or arrest, and that is a different issue than the issue involved in this case.

Here, the issue is whether officers had the reasonable suspicion to conduct a Terry stop. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (“The second level of police-citizen encounters involves an investigatory stop.... At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.”). “Whether there is reasonable suspicion for a stop depends on the totality of the circumstances.” L.J.S. v. State, 905 So.2d 222, 224 (Fla. 2d DCA 2005). Although the tip here was similar to the one in Miller, our de novo review of the totality of the circumstances in this case leads us to conclude that the police did have reasonable suspicion to conduct an investigatory stop of Flores. The Cl had purchased drugs from Flores previously, thus establishing the basis of his knowledge. The officer listened as the Cl made arrangements to purchase $50 of cocaine from someone on the telephone. The Cl provided information as to where and when the purchase would take place and what type of vehicle the supplier would be driving. The officers reported to the location given by the Cl, and a vehicle matching the description given by the Cl timely arrived. The totality of these circumstances supports the conclusion that the officers had the necessary reasonable suspicion to make the investigatory stop. Following that legal stop, Flores exited the vehicle and the officers saw cocaine drop out of his hand. This gave the officers the probable cause necessary to arrest him.

Accordingly, we reverse the trial court order granting Flores’ motion to suppress and remand for further proceedings.

Reversed and remanded.

ALTENBERND and KELLY, JJ„ Concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . The fact that the initial investigatory stop was conducted at gunpoint does not convert the stop into an arrest. See Carroll v. State, 636 So.2d 1316, 1318 (Fla.1994); State v. Hendrex, 865 So.2d 531, 535-36 (Fla. 2d DCA 2003); State v. Perera, 412 So.2d 867, 871 (Fla. 2d DCA 1982).


author: SAWAYA, J.

text:
    FLORIDA HOSPITAL WATERMAN, INC., etc., Petitioner, v. Teresa M. BUSTER, as personal representative of the Estate of Larry Buster, Deceased, et al., Respondents.
    No. 5D05-2195.
    District Court of Appeal of Florida, Fifth District.
    March 10, 2006.

      Mason H. Grower, III, Jack E. Holt and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Petitioner.
    Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of counsel, of The Carlyle Appellate Law Firm, The Villages, for Respondent Teresa M. Buster.
    Stephen H. Grimes and Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, Amicus Curiae for Florida Hospital Association, Inc.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach and Lincoln J. Connolly of Rossman, Baumber-ger, Reboso & Spier, P.A., Miami, Amicus Curiae for Floridians for Patient Protection, Inc.
   SAWAYA, J.

Of the several constitutional amendments approved by the voters in 2004, we are called upon to consider the provisions of article X, section 25 of the Florida Constitution, commonly known as Amendment 7 or the “Patients’ Right To Know Amendment.” Amendment 7 provides, in pertinent part, that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Because Amendment 7 was placed on the ballot through the citizens’ initiative process, its provisions did not emerge from the cauldron of the legislative process where, after debate and deliberation, the body politic bespeaks the will of the people. Through adoption of Amendment 7, the people have spoken directly for themselves.

Amendment 7 has spawned a frenzy of litigation wherein litigants and trial courts have struggled to discern its purpose and the extent of its application. The litigation now before this court presents us with the following issues to resolve: 1) does Amendment 7 preempt statutory privileges afforded health care providers’ self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation; 2) is Amendment 7 self-executing; and 3) should Amendment 7 be applied prospectively or retroactively. In essence, resolution of these issues involves a search for the intended meaning of the provisions of Amendment 7. That this is no easy task is a fact best illustrated by the disparate conclusions reached by the several circuit courts that have attempted to decide these issues. We undertake resolution of these issues by discussing the factual and procedural background and the appropriate standard of review, after which we analyze each issue in the order previously presented. We parenthetically note that the issue whether the information gathered in accordance with the provisions of Amendment 7 is admissible into evidence in trial proceedings is not an issue before us and will not be addressed.

Factual and Procedural Background

A detailed discussion of the underlying facts of the litigation between the parties is not necessary to resolve the issues presented to us. Suffice it to say that Respondent, Teresa Buster, as personal representative of the estate of Larry Buster, brought a medical malpractice action against Florida Hospital Waterman, Inc. (the Hospital) and the other respondents, Jeffrey B. Keeler, M.D., and Keller & Goodman, M.D., P.A. As part of the discovery, Buster sought production of documents relating to the investigation of the decedent’s death and any medical incidents of negligence, neglect, or default of any health care provider who rendered services to the decedent. The Hospital objected and filed a motion for a protective order, relying on various statutory privileges and arguing that Amendment 7 does not apply.

Emanating from a hearing on the objection and motion was the trial court’s order overruling the Hospital’s objection and requiring the Hospital to produce the discovery that the Hospital claims was privileged. The court held that Amendment 7 is self-executing, should be retroactively applied, and any legislation to the contrary is subordinate to the constitutional amendment. Accordingly, the court ordered the production of documents and information pertaining to incidents dating back to December 25, 2000. Florida Hospital seeks certiorari review of that order, arguing that it constitutes a departure from the essential requirements of law, causing irreparable harm because it requires the production of privileged information and improperly gives self-executing, retroactive effect to Amendment 7.

Standard of Review

“While several standards of review are utilized to review petitions for writs of certiorari, when an appellate court reviews [a]non-appealable non-final order rendered by a trial court, the party seeking review must demonstrate that the trial court departed from the essential requirements of law and that the resulting harm is irreparable and cannot be remedied on appeal following final judgment.” Dep’t of Children & Families v. L.D., 840 So.2d 432, 435 (Fla. 5th DCA 2003) (citing Belair v. Drew, 770 So.2d 1164 (Fla.2000); Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla.1998); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); S.H. v. Dep’t of Children & Families, 769 So.2d 452 (Fla. 5th DCA 2000)). Hence, this court has consistently held that certiorari is the appropriate vehicle to challenge non-final orders compelling the discovery of information claimed to be privileged. See Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005); Beverly Enters.Fla., Inc. v. Ives, 832 So.2d 161 (Fla. 5th DCA 2002), review denied, 845 So.2d 890 (Fla.2003).

Does Amendment 7 Preempt Statutory Privileges Afforded Health Care Providers’ Self-policing Procedures to the Extent that Information Obtained in Accordance with Those Procedures is Discoverable During the Course of Litigation

Because resolution of this issue requires that we determine the meaning of Amendment 7, we proceed with our analysis de novo. Zingale v. Powell, 885 So.2d 277 (Fla.2004). Applying rules that parallel the principles2 that guide us in statutory interpretation, we must forego any construction that would defeat the intent of the framers of the amendment and the people who enacted it. Id. at 282 (“Such a provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied.”); see also Coastal Fla. Police Benev. Ass’n, Inc. v. Williams, 838 So.2d 543, 549 (Fla.2003). Amendment 7 provides:

§ 25. Patients’ right to know about adverse medical incidents.
(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the following meanings:
(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the .patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.

Art. X, § 25, Fla. Const.

We must read these provisions in pari materia and construe the amendment as a whole “in order to ascertain the general purpose and meaning of each part; each subsection, sentence, and clause must be read in light of the others to form a congruous whole.” Dep’t of Envtl. Prot. v. Millender, 666 So.2d 882, 886 (Fla.1996); see also Bush v. Holmes, 919 So.2d 392 (Fla.2006); Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So.2d 1129, 1134 (Fla.2003). Unlike statutory construction, “we have an obligation to provide ‘a broader and more liberal construction’ of constitutional provisions.” Coastal Fla. Police Benev. Ass’n, Inc., 838 So.2d at 549 (“ ‘Consequently, courts are far less circumscribed in construing language in the area of constitutional interpretation than in the realm of statutory construction. When adjudicating constitutional issues, the principles, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of a provision.’ ”) (quoting Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986)).

Subsection (a) provides that “patients” may obtain “any records” relating to an “adverse medical incident.” The term “patient” is defined in very broad terms to include any individual who has received or is currently receiving medical care or treatment. Art. X, § 25(c)(2), Fla. Const. The term “adverse medical incident” means “medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient. ...” Art. X, § 25(c)(3), Fla. Const. The amendment’s use of the terms “medical negligence” and “intentional misconduct,” and its references to acts that caused or could have caused death or injury and to patients who have previously received medical care, clearly reveals to us that such information may be obtained during the course of litigation by the patient through the discovery process. We also note that subsection (c)(4) provides that the information may be obtained by an informal request, such as a letter, or by a formal request, which certainly includes a formal discovery request made during the course of litigation. Moreover, subsection (c)(4) also allows the request to be made by the patients or their representatives, which would include lawyers. Reading the provisions of Amendment 7 in pari materia so it forms a congruous whole, and construing the provisions broadly and giving them a more liberal interpretation than we would a statute, we come to the conclusion that Amendment 7 preempts the statutory privileges afforded health care providers regarding their self-policing procedures to the extent that such information is obtainable through a formal discovery request made by a patient or a patient’s legal representative during the course of litigation.

We believe that this conclusion comports with common sense, which is certainly applicable when attempting to discern the intent of those who enacted Amendment 7. Millender, 666 So.2d at 885-86; Plante v. Smathers, 372 So.2d 933, 936 (Fla.1979) (citing In re Advisory Opinion to the Governor, 276 So.2d 25 (Fla.1973)). It would make little sense to allow a patient access to the information prior to the institution of legal proceedings against a health care provider, but not during the course of litigation. Certainly if a patient may obtain the information and then proceed with litigation, we can find no discernable reason why Amendment 7 would prohibit access to the information by a patient during the progress of the litigation. “[A]n interpretation of a constitutional provision which will lead to an absurd result will not be adopted when the provision is fairly subject to another construction which will accomplish the manifest intent and purpose of the people.” Plante, 372 So.2d at 936 (citing City of Miami v. Romfh, 66 Fla. 280, 63 So. 440 (1913)).

It is also appropriate for us to examine the “ ‘explanatory materials available to the people as a predicate for their decision as persuasive of their intent.’ ” Millender, 666 So.2d at 886 (quoting Plante, 372 So.2d at 936). In Advisory Opinion to the Attorney General Re Patients’ Right To Know About Adverse Medical Incidents, 880 So.2d 617 (Fla.2004), the court quoted the summary for the proposed amendment as follows:

Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities’ or providers’ adverse medical incidents, including those which could cause injury or death. Provides that patients’ identitie [sic] should not be disclosed.

Id. at 619. This ballot summary states that the effect of the amendment is to give patients a right of access to information previously denied them under Florida law. This is an obvious reference to the statutory privileges that guarantee confidentiality of the self-policing processes of health care providers, which the courts have carefully protected from the discovery process during litigation. We believe that this ballot summary is a clear statement that Amendment 7 is intended to change Florida law by eliminating those privileges to the extent that such information is discoverable during the course of litigation between a patient and his or her health care provider. Moreover, the reference to medical malpractice in the summary indicates to those deciding whether to vote for Amendment 7 that the information would be made available for investigations of medical malpractice actions. We believe this means investigations conducted before and during the litigation process.

Despite this rather clear statement of purpose, the Hospital continues to view this issue through the prism of privilege and confidentiality. The Hospital contends that preservation of the legislatively-established privileges that enhance self-policing by health care providers for the betterment of the patients they serve is a firmly-established policy that is of paramount importance and the people of Florida could not have meant to abrogate such a policy, especially one so carefully guarded by the courts. This is evident, continues the Hospital, because the text of Amendment 7 does not explicitly state that as its declared purpose. Interpreting the text of Amendment 7 differently and more broadly, we disagree. Further, what the Legislature gives through its enactments and the courts protect through their decisions, the people, through the constitutional amendment process, can certainly take away. See State ex rel. McIver v. Swank, 152 Fla. 565, 12 So.2d 605, 609 (1943) (“This is a case where the Legislature gave and the Legislature took away.”). We believe that is what the people of Florida intended when they inserted Amendment 7 into our constitution. Through this amendment, the people have clearly expressed their preference for freedom of information regarding adverse medical incidents over the privileges that protect the self-policing processes enacted by the Legislature and protected by the courts. The people have made their choice, and it is not for us to question the wisdom of it. We note, parenthetically, that Amendment 7 does not profess to affect the work-product and attorney-client privileges, and the parties do not contend otherwise.

Effective June 20, 2005, the Legislature enacted section 381.028, Florida Statutes, to implement the provisions of Amendment 7. In doing so, the Legislature expressed an interpretation of Amendment 7 contrary to ours. It is the prerogative of the courts to interpret the Florida Constitution, including its amendments, by discerning the intent of the people who enact its provisions, and we have done so. Moreover, the provisions of Amendment 7, emanating from the citizens’ initiative process, were not tested by a formalistic catechism of legislative debate where inquiry is made and answers provided regarding the purpose and meaning of the proposal sought to be enacted into law. Hence, the Legislature is in no position to claim superior interpretive knowledge of Amendment 7, as it sometimes does in instances where it enacts subsequent remedial legislation to correct what it perceives to be an erroneous interpretation of prior legislation by the courts. Equally important, when the people have spoken and expressed their will through the constitutional amendment process, the Legislature is not free to abrogate it through subsequent enactments. See Austin v. State ex rel. Christian, 310 So.2d 289, 293 (Fla.1975) (“A statute enacted by the Legislature may not constrict a right granted under the ultimate authority of the Constitution.”). While we express no opinion regarding the processes established in section 381.028 to secure the requested information pursuant to Amendment 7, we do reject the interpretation of that amendment by the Legislature.

We find support for our conclusion in the Florida Supreme Court’s advisory opinion regarding Amendment 7 rendered in Advisory Opinion to the Attorney General Re Patients’ Right To Know About Adverse Medical Incidents, 880 So.2d at 620-21, wherein the court stated, “Unquestionably, the amendment would affect sections 395.0193(8) and 766.101(5) of the Florida Statutes (2003), which currently exempt the records of investigations, proceedings, and records of the peer review panel from discovery in a civil or administrative action. Indeed, this is a primary purpose of the amendment.” While we consider this opinion for what it is — an advisory opinion — we also consider that the Florida Supreme Court views its advisory opinions as “ ‘frequently very persuasive and usually adhered to.’ ” Barley v. S. Fla. Water Mgmt. Dist., 823 So.2d 73, 82 (Fla.2002) (quoting Lee v. Dowda, 155 Fla. 68, 19 So.2d 570, 572 (1944)). Specifically, “[rjegarding advisory opinions concerning initiative opinions, ... ‘although our advisory opinions are not strictly binding precedent in the most technical sense, only under extraordinary circumstances will we revisit an issue decided in our earlier advisory opinions.’ ” Id. at 82 (quoting Ray v. Mortham, 742 So.2d 1276, 1285 (Fla.1999)). Hence, we believe that the statement made by the Florida Supreme Court is persuasive.

Retroactive or Prospective Application

The Hospital convincingly argues that Amendment 7 should not be applied retroactively. “When considering whether a statute should be retroactively applied, the courts should determine 1) whether there is clear evidence that the Legislature intended to apply the statute retrospectively; and 2) whether retroactive application is constitutionally permissible.” Campus Commc’ns, Inc. v. Earnhardt, 821 So.2d 388, 395 (Fla. 5th DCA 2002) (citing Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494 (Fla.1999)), review denied, 848 So.2d 1153 (Fla.2003); Promontory Enters., Inc. v. S. Eng’g & Contracting, Inc., 864 So.2d 479 (Fla. 5th DCA 2004). We believe that this test applies equally to constitutional amendments.

The first inquiry necessarily requires that we look to the provisions of Amendment 7 to determine whether it provides for retroactive application. It does not. A law is presumed to operate prospectively absent a clear legislative expression requiring that the statute be retroactively applied. State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983) (“Nowhere in either article I, section 12 as amended or in the statement placed on the November ballot is there manifested any intent that the amendment be applied retroactively. Therefore, the amendment must be given prospective effect only.”) (footnote omitted); State, Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353, 358 (Fla.1977); Promontory, 864 So.2d at 483; Earnhardt. Moreover, the amendment specifically provided that it was to become effective on the date it was approved by the electorate, which was November 2, 2004. We believe this is significant to our analysis because the inclusion of an effective date “effectively rebuts any argument that retroactive application of the law was intended.” State, Dep’t of Revenue, 354 So.2d at 358; see also In re Name Change Petition of Mullin, 892 So.2d 1214, 1215 (Fla. 2d DCA 2005); Promontory; Earnhardt. Accordingly, we have found nothing that inhibits us from indulging the presumption that Amendment 7 should be applied prospectively.

Although the second inquiry presumes that the answer to the first requires retroactive application, we will nevertheless, address it. Retroactive application would not be constitutionally permissible because it vitiates a vested right that health care providers have in the confidentiality of the information generated through the self-evaluative process. Because it is generally constitutionally impermissible to abrogate a vested right by retroactive application of a law, see Earnhardt, we believe that Amendment 7 should be prospectively applied. Buster argues that the amendment is remedial and procedural, thereby exempting it from the aforementioned rule. We disagree. As we have previously stated, Amendment 7 constitutes a change in the law based on an informed choice made by the electorate. Therefore, it is not remedial. As to the argument that the amendment is procedural rather than substantive, “substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994); see also Shaps v. Provident Life & Acc. Ins. Co., 826 So.2d 250, 254 (Fla.2002). Because Amendment 7 gives patients the right to information regarding adverse medical incidents and places a duty on the health care providers to provide it, it is a substantive amendment that should not be retroactively applied.

Our analysis of the second inquiry, like the first, leads us to the same conclusion, which is that Amendment 7 should be applied prospectively. Prospective application of Amendment 7 means that information and documents created on or after the effective date of the amendment, which is November 2, 2004, are obtainable and discoverable during the course of litigation by a patient against a health care provider.

Whether Amendment 7 is Self-Executing

The test for determining whether a constitutional provision is self-executing was established in Gray v. Bryant, 125 So.2d 846 (Fla.1960), wherein the court explained:

The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.

Id. at 851 (citations omitted). The court further held that there is a presumption in favor of finding constitutional amendments to be self-executing. This presumption is premised on the notion that “in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.” Id.

We believe that Amendment 7 sufficiently satisfies this test to leave undisturbed the presumption in favor of self-execution. The amendment contains sufficiently de-tailed definitions of the pertinent terms and adopts a fairly narrow policy of allowing access to information regarding adverse medical incidents to patients, including those who seek discovery during the course of litigation against their health care providers. We also believe that the reference to the procedures provided by general law in subsection (c)(4) (“The phrase ‘have access to any records’ means, in addition to any other procedure for producing such records provided by general law....”) is a clear expression of the people’s intent that existing law was sufficient to implement the provisions of the amendment and that no further legislation was necessary. For example, current legislation should be sufficient to address the issue of fees and timeliness of eompli-anee. See, e.g., § 895.3025, Fla. Stat. (2004); § 456.057(4), (16), Fla. Stat. (2004); § 766.204, Fla. Stat. (2004). Moreover, in the realm of litigation and the discovery process that is part of it, there are sufficient rules in place that will allow parties to obtain requested information under Amendment 7 in an orderly and lawful fashion. We see no need for further rules and regulations to govern the discovery procedures.

We are also of the view that holding Amendment 7 is not self-executing would frustrate the intent of the people who enacted it. We note that in addition to the reference to the procedure for providing records already established by general law in subsection (c)(4), the people of Florida voted to make Amendment 7 effective upon approval, which left no time for implementing legislation to be enacted. It is apparent to us that these factors clearly indicate that the people intended Amendment 7 to be self-executing. This conclusion is further supported by the stated purpose of the amendment to abrogate the law that prohibited access to information regarding adverse medical incidents during the course of discovery. Given the people’s intent to abrogate those laws previously enacted by the Legislature, we do not believe they intended for subsequent legislation to be enacted to help implement that intent and purpose. In essence, the people sought to eliminate certain legislative provisions rather than add more.

Conclusion

We believe that Amendment 7 heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers. We have come to this conclusion because we are obliged to interpret and apply Amendment 7 in accord with the intention of the people of this state who enacted it, and we have done so. It is not for us to judge the wisdom of the constitutional amendments enacted or the change in public policy pronounced through those amendments, even in instances where the change involves abrogation of long-standing legislation that establishes and promotes an equally or arguably more compelling public policy. See Sebring Airport Auth. v. McIntyre, 783 So.2d 238, 244 (Fla.2001).

Hence, what the Legislature has given through its enactments and the courts have enforced through their decisions, the people can take away through the amendment process to our state constitution. Moreover, what the people provide in their constitution, the Legislature and the courts may not take away through subsequent legislation or decision. Therefore, we are not much impressed or persuaded by the legislative interpretation of Amendment 7 pronounced in section 381.028.

We conclude that the trial court correctly held that Amendment 7 is self-executing and allows for the discovery, during the course of litigation by a patient against a health care provider, of information and documents that emanate from the self-policing processes of health care providers. In so ruling, the trial court did not depart from the essential requirements of the law and, therefore, as to these two issues, we deny the Hospital’s petition for writ of certiorari. However, the trial court did depart from the essential requirements of law in ruling that Amendment 7 should be applied retroactively, thereby allowing discovery of information and documents emanating from the self-policing processes dating back to December 25, 2000. Because this ruling allows for the discovery of privileged information, we believe that this erroneous ruling causes irreparable harm that cannot be remedied on appeal following entry of final judgment at the conclusion of the ease. Therefore, as to that issue, we grant the petition for writ of certiorari, quash that part of the trial court’s order, and remand this case to the trial court for further proceedings.

Certified Questions

Because our interpretation of Amendment 7 brings about a significant change in Florida law that will have impact statewide on litigation filed by patients against their health care providers, we hereby certify the following questions to the Florida Supreme Court as matters of great public importance:

1) DOES AMENDMENT 7 PREEMPT STATUTORY PRIVILEGES AFFORDED HEALTH CARE PROVIDERS’ SELF-POLICING PROCEDURES TO THE EXTENT THAT INFORMATION OBTAINED THROUGH THOSE PROCEDURES IS DISCOVERABLE DURING THE COURSE OF LITIGATION BY A PATIENT AGAINST A HEALTH CARE PROVIDER?
2) IS AMENDMENT 7 SELF-EXECUTING?
3) SHOULD AMENDMENT 7 BE APPLIED RETROACTIVELY?

Petition For Writ Of Certiorari Denied in Part; Granted in Part; Order Quashed in Part; Remanded.

ORFINGER and TORPY, JJ., concur.

      . See, e.g., Art. I, § 26, Fla. Const. (entitled “Claimant’s right to fair compensation”) (placing restrictions on the amount of attorneys’ fees in medical malpractice actions).

      . There are several sources from which a constitutional amendment may originate. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000) ("Proposed amendments to the Florida Constitution may originate in any of several sources, including the Legislature, revision commission, citizen initiative, or constitutional convention.”) (footnotes omitted). Proposed Amendment 7 was placed on the ballot through the citizens' initiative process pursuant to the provisions of article XI, section 3 of the Florida Constitution.

      . See, e.g., Sardes v. S. Broward Hosp. Dist., No. 03-5290 (Fla. 17th Cir. Apr. 7, 2005) (2005 WL 831964); Brown v. Graham, No. 501999 (Fla. 15th Cir. Mar. 18, 2005) (2005 WL 900722); McHale v. Tenewitz, No. 052003 (Fla. 18th Cir. Feb. 28, 2005) (2005 WL 900744); Michota v. Bayfront Med. Ctr., Inc., No. 04-1057 (Fla. 6th Cir. Feb. 24, 2005) (2005 WL 900771); Rusiecki v. Jackson-Curtis, No. 03-008570 (Fla. 6th Cir. Jan. 31, 2005) (2005 WL 408133); Richardson v. Nath, No. 04-006970 (Fla. 6th Cir. Jan. 18, 2005) (2005 WL 408132); Bridgman v. Health Mgmt. Assocs., Inc., No. 51-04-CA-59-ES (Fla. 6th Cir. Jan. 14, 2005) (2005 WL 900630).

      . Specifically, the trial court ordered the Hospital to
      produce the requested records, including those related to this incident, as follows: The discovery is limited to a four (4) year period to December 25, 2000. Only documents and information related to incidents involving gastrointestinal bleeding adverse incidents and involving adverse incidents occurring on Holidays shall be provided.

      . The stated purpose of Amendment 7 has similar provisions. It states in pertinent part:
      The Legislature has ... restricted public access to information concerning a particular health care provider’s or facility's investigations, incidents or history of acts, neglects, or defaults that have injured patients or had the potential to injure patients. This information may be important to a patient. The purpose of this amendment is to create a constitutional right for a patient or potential patient to know and have access to records of a health care facility's or provider's adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death.

        Advisory Opinion to the Atty. Gen. Re Patients’ Right To Know About Adverse Med. Incidents, 880 So.2d 617, 618 (Fla.2004).

      . The privileges referred to are the numerous laws that prohibit discovery of various components of a hospital's self-evaluation process, which the Legislature believes are essential to meaningful self-regulation by health care providers in general. See, e.g., § 766.101(5), Fla. Stat. (2005) (medical review committee privilege); § 766.1016(2), Fla. Stat. (2005) (patient safety data); § 459.016(3), Fla. Stat. (2005) (reports of disciplinary actions); § 400.118, Fla. Stat. (2005) (quality assurance nursing homes); § 395.0191(8), Fla. Stat. (2005) (staff membership and clinical privileges); § 395.0197(4), (6)(c), (7), (13), Fla. Stat. (2005) (internal risk management); § 395.0193(8), Fla. Stat. (2005) (peer review). In addition, the Legislature has immunized the participants of such self-evaluation procedures from liability for actions taken. See, e.g., § 395.0191(7), Fla. Stat. (2005) (credentialing); § 395.0193(5), Fla. Stat. (2005) (peer review process); § 766.101(3), Fla. Stat. (2005) (medical review committee process).

      . See, e.g., Cruger v. Love, 599 So.2d 111, 114 (Fla.1992) (acknowledging previous holding that the discovery privilege for peer review committees is " 'designed to provide that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature [has] sought to encourage.1 ”) (quoting Holly v. Auld, 450 So.2d 217, 219-20 (Fla.1984)); Tenet Healthsystem Hosps., Inc. v. Taitel, 855 So.2d 1257, 1258 (Fla. 4th DCA 2003) (same); Beverly Enters.-Fla., Inc. v. Ives, 832 So.2d 161 (Fla. 5th DCA 2002), review denied, 845 So.2d 890 (Fla.2003); Miami Heart Inst. v. Reis, 638 So.2d 530, 532 (Fla. 3d DCA 1994) ("The constancy of the privilege [afforded medical review committees] is thus far absolute, [regardless of] the nature of the litigation or the procedural posture of the case....”). The privileges have been enforced, even though Florida courts have recognized that to do so impinges on the rights of some civil litigants to discovery of information that might be useful, or even essential, to their causes. See Holly, 450 So.2d at 220.


author: PER CURIAM.

text:
    Ricardo PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2245.
    District Court of Appeal of Florida, Third District.
    March 15, 2006.
    Opinion Denying Rehearing June 21, 2006.
    Ricardo Perez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

PER CURIAM.

On Motion to Amend Motion for Rehearing

Upon consideration, appellant’s motion to amend motion for rehearing is denied.

We recently affirmed appellant’s sentence in this case. We then denied a timely motion for rehearing filed. We now have before us a subsequently filed motion to amend motion for rehearing.

We treat this motion as a second motion for rehearing. Because Florida Rules of Appellate Procedure 9.330(b) clearly allow for only one motion of rehearing, we deny the motion. See Fla. R.App. P. 9.330(b) (“A party shall not file more than 1 motion for rehearing or for clarification of decision and 1 motion for certification with respect to a particular decision.”).

Motion denied.


author: WHATLEY, Judge.

text:
    William LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-425.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

William Lewis was convicted of trespass on a construction site and petit theft. He argues that the trial court erred in denying his motion for judgment of acquittal as to the charge of trespass on a construction site, because the evidence did not establish the posting element of the offense. We agree and reverse.

Lewis was charged with trespass on a construction site pursuant to section 810.09(2)(d), Florida Statutes (2002). Section 810.09(2)(d) provides that it is a third-degree felony to trespass on “a construction site that is legally posted and identified in substantially the following manner: ‘THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.’ ” Posted land is defined as

land upon which signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words “no trespassing” and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line.

§ 810.011(5)(a), Fla. Stat. (2002).

At Lewis’s trial, there was testimony that there was a sign on the victim’s property quoting the language required by section 810.09(2)(d). However, all of the witnesses testified that there was only one such sign on the property, not a sign on each corner of the property as required by section 810.011(5)(a). Further, there was no testimony that the letters on the sign were two inches in height, as required by this statute.

The State argues that section 810.09(2)(d) requires only substantial compliance, that the definition of posted land in section 810.011 should not be applied to section 810.09(2)(d), and that any technical deficiency was a matter for the jury to consider. We disagree. First, we note that the term “substantially” is used in section 810.09(2)(d) to describe the particular language required to be placed on the sign, but it is not used in conjunction with the term “legally posted.”

Second, we conclude that the definition of “posted land” in section 810.011 was intended to apply to the term “legally posted” in section 810.09. The only Florida case addressing this issue is Pointec v. State, 614 So.2d 570 (Fla. 5th DCA 1993). In Pointec, 614 So.2d at 573, the Fifth District held that the definition of “posted” was intended to control section 810.09(2)(d). We agree with the Fifth District and believe that this reasoning is supported by the legislature’s use of the language “legally posted” in section 810.09(2)(d), instead of merely providing that a construction site must be “posted in substantially the following manner.... ”

The trial court in the instant case similarly found no merit in the argument raised by the State. It found that the language regarding posting requirements in both statutes must be read in pari materia and that the court in Pointec correctly applied the definition of posted to section 810.09(2)(d). However, the trial court found that posting was not required pursuant to section 810.011(5)(b), because there was a dwelling on the property. We conclude that the trial court erred in applying this exception to the posting requirement. Dwelling is defined by section 810.011(2) as a building or conveyance that has a roof over it. Here, although the foundation of the house was complete and partial walls had been constructed, there was no roof on the residence. Therefore, it did not meet the definition of dwelling and the property was required to be legally posted.

Accordingly, because the signage in the instant case did not meet the requirements of section 810.09(2)(d) and section 810.011(5)(a), we reverse Lewis’s conviction for trespass on a construction site. Lewis’s conviction and sentence for petit theft is affirmed.

We note that the size of the property at issue was only 50 by 100 feet. However, neither section 810.011(5)(a) nor section 810.09(2)(d) provide for an exception to the posting requirements for properties of this size. If the legislature did not intend to require more than one sign on construction sites that are as small as the one here, hopefully it will consider amending the statute to address this type of factual pattern.

Affirmed in part; reversed in part.

FULMER, C.J., and WALLACE, J., Concur.


author: SALCINES, Judge.

text:
    Louis LOUISMEME, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3125.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.
   SALCINES, Judge.

Louis Louismeme appeals the summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Louismeme’s postconvietion motion is not properly sworn, we affirm. See Fla. R.Crim. P. 3.850(c). Our affirmance is without prejudice to any right Louismeme may have to file a verified motion for post-conviction relief pursuant to rule 3.850. Any such motion will not be deemed successive. We remind the postconvietion court that if it should again deny relief to any subsequent verified postconvietion motion Louismeme files, the court must attach portions of the record conclusively refuting the defendant’s allegations.

Affirmed.

NORTHCUTT and CANADY, JJ., Concur.

      . Hearsay documentation contained in the trial court record, such as a police report, cannot conclusively refute a defendant’s claim. See Carpenter v. State, 884 So.2d 385, 387 n. 3 (Fla. 2d DCA 2004); Wachter v. State, 868 So.2d 629, 630 (Fla. 2d DCA 2004).


author: WALLACE, Judge.

text:
    NEW POINTE, INC., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Carl L. Stuart, Appellees.
    No. 2D05-2194.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.
    Wilson T. Trammell and Talbot W. Trammell of Trammell & Trammell, Tallahassee, for Appellant.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Carl L. Stuart.
   WALLACE, Judge.

New Pointe, Inc. (the Employer), appeals an order of the Unemployment Appeals Commission (the UAC) affirming the appeals referee’s decision that awarded unemployment benefits to Carl L. Stuart (the Claimant). Because the only issues raised by the Employer on this appeal were not before the referee for decision, we affirm the UAC’s order.

On this appeal, the Employer does not challenge the UAC’s ruling that the Claimant is qualified for benefits because he was not terminated from his employment for misconduct connected with work. Instead, the Employer argues that the Claimant should be disqualified because he failed to carry the burden of proving that he was unemployed or that he was able and available for work.

It is true that the employee has the initial burden of proving that he is eligible for unemployment benefits. Lewis v. Lakeland Health Care Ctr., 685 So.2d 876, 878 (Fla. 2d DCA 1996). In this case, however, the issues of the Claimant’s unemployment or his availability for work were not issues before the appeals referee. The notice of hearing stated the issues involved in the appeal as follows:

SEPARATION: Whether the claimant was discharged for misconduct connected with work or voluntarily left work without good cause as provided in Sections 443.101(1), (9), (10), (11); 443.036(29), Florida Statutes; and Rule 60BB-3.020, Florida Administrative Code.
CHARGES TO EMPLOYMENT RECORD: Whether benefit payments made to the claimant shall be charged to the employment record of the employer, pursuant to Sections 443.101(9) and 443.131(3), Florida Statutes, and Rules 60BB-2.026 and 3.018, Florida Administrative Code. (For an employer not chargeable on the current claim, this hearing may determine changeability on a subsequent claim.)

Thus the only matters at issue before the appeals referee were whether the Claimant was discharged for misconduct or voluntarily left work without good cause and whether benefit payments made to the Claimant should be charged to the Employer.

Absent an informed and intelligent waiver, it would have been improper for the appeals referee to expand the scope of the hearing to include issues not noticed for hearing and to disqualify the Claimant from receiving benefits for a reason not included within the scope of the notice. See Reed v. Unemployment Appeals Comm’n, 863 So.2d 402, 403 (Fla. 2d DCA 2003); Lewis v. Hot Shoppes, 211 So.2d 20, 21 (Fla. 4th DCA 1968). Moreover, the Employer never raised these issues below. In its appeal of the initial determination that the Claimant qualified for benefits, the Employer did not contend that the Claimant was not unemployed or that he was not available for work. Instead, the Employer said: “I do not agree that [sic] was not misconduct. [The Claimant] was not performing his job the way it should have been done.” Similarly, at the hearing, the Employer failed to raise the issues it attempts to raise for the first time in this court. Cf. Sun States Servs. v. Fla. Unemployment Appeals Comm’n, 629 So.2d 858 (Fla. 5th DCA 1993) (reversing order awarding benefits and remanding for determination of whether employee was “unemployed” or “available for work” where the employer timely raised these issues and the appeals referee refused to consider them). For these reasons, we find no error, and we affirm the UAC’s order.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.


author: KELLY, Judge.

text:
    Charles BYNUM, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1552.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.

      Charles Bynum, III, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Charles Bynum appeals from the order denying his motion for postconviction relief after an evidentiary hearing. We reverse and remand for a new evidentiary hearing because the trial court abused its discretion in denying Bynum’s request for appointed counsel. See Williams v. State, 472 So.2d 738 (Fla.1985); Lee v. State, 801 So.2d 1022 (Fla. 2d DCA 2001).

The record reflects that after the postconviction court ordered a hearing on Bynum’s motion, he submitted a written motion for appointment of counsel stating that he had limited education and little understanding of the law or courtroom procedures, that he had received the assistance of an inmate law clerk in preparing his motions, and that he was not capable of properly conducting the hearing. Bynum later filed a renewed motion for appointment of counsel restating his need for counsel based upon his limited education, lack of legal training, ignorance of courtroom procedures, and his inability to subpoena and question witnesses. He argued that the hearing would place him and his prior trial counsel in an adversarial position based on his claim of ineffective assistance of counsel and, therefore, he required independent counsel to properly present his claims. The postconviction court proceeded with the evidentiary hearing without appointing counsel to represent Bynum. The transcript of the eviden-tiary hearing demonstrates that Bynum was at a loss as to how to present his case.

In deciding whether to appoint counsel for postconviction proceedings, the court must consider four factors: the adversary nature of the proceedings, its complexity, the need for an evidentiary hearing, or the need for substantial legal research. Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979). “The need for an evidentiary hearing itself implies that [the first] three of the four factors are involved.” Jackson v. State, 908 So.2d 1183, 1184 (Fla. 2d DCA 2005). As noted in Williams, “[e]videntiary hearings are adversarial in nature, and the rules of evidence and procedure are mystifyingly complex to all but the most sophisticated non-lawyers.” 472 So.2d at 740. “[A]ny doubt about the need for counsel must be resolved in favor of the indigent defendant.” Id.

The nature of Bynum’s postconviction claim is such that to meet his burden of proving his allegations, at a minimum he will have to be able to effectively cross-examine his prior counsel. It is also possible that he will have to present testimony from at least one other witness and that this witness will almost certainly take a position adverse to Bynum’s claim and thus need to be effectively cross-examined. Bynum’s claim is further complicated by the fact that it involves a challenge to his plea, aspects of which are problematic for both the State and Bynum, and the fact that Bynum’s claim, as characterized by the trial court, “raises the specter of actual innocence.” Assertions such as those By-num makes in his motions for appointment of counsel, such as his lack of education and the assistance of an inmate law clerk, may not warrant the appointment of counsel in every case where similar allegations are recited. However, in light of the nature of Bynum’s postconviction claim and what will be required to prove it, in this case they are sufficient to raise a doubt about whether he needed the assistance of counsel. Because that doubt must be resolved in his favor, we reverse and remand for the trial court to appoint counsel to assist Bynum and for a new evidentiary hearing.

Reversed and remanded.

FULMER, C.J., and ALTENBERND, J., Concur.


text:
    Oscar ARRATE and Mercedes Arrate, Appellants, v. VOLKSWAGEN OF AMERICA, INC., Appellee.
    No. 2D05-3854.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.
    Theadore F. Greene III, Orlando, for Appellants.
    John H. Pelzer, Ruden, McClosky, Smith Schuster & Russell, P.A., Fort Lauderdale, for Appellee. .
   PER CURIAM.

This is an appeal from a final judgment dismissing, with prejudice, a civil suit concerning the purchase of an allegedly defective automobile. The trial court concluded that the dispute was subject to mandatory arbitration.

The appellee now concedes error and recognizes that arbitration was not mandatory and that the action should proceed in the trial court.

Accordingly, we vacate the final judgment, and we remand the case for further proceedings in the trial court.

Vacated and remanded.

KELLY, WALLACE, and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Michael S. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5773.
    District Court of Appeal of Florida, Second District.
    March 17, 2006.
   LaROSE, Judge.

Michael S. Clark appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order without prejudice to any right Mr. Clark may have to refile a facially sufficient motion for prison credit under rule 3.800(a).

In his motion, Mr. Clark claimed that he was entitled to prior prison credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993). Mr. Clark alleged that on August 29, 2005, after violating the probation imposed in September 1999 in circuit court cases 1999-CF-1497, 1999-CF-1506, and 1999-CF-1508, he was sentenced to twenty-one months in prison with credit for time served in all three cases. However, Mr. Clark alleged that he received credit only for time spent in county jail and did not receive credit for time spent in prison for circuit court case 1999-CF-1507. Relying on Tripp, Mr. Clark alleged that his prior prison credit in case 1999-CF-1507 should apply towards his twenty-one-month prison sentences in the other cases because the trial court scored each on the same scoresheet when Mr. Clark was originally sentenced.

The postconviction court summarily denied Mr. Clark’s rule 3.800(a) motion without explanation or supporting attachments. However, Mr. Clark’s claim is facially insufficient because he fails to allege that the error is apparent from the face of the record and fails to allege that the court records demonstrate that he is entitled to relief. See Stathas v. State, 852 So.2d 881 (Fla. 2d DCA 2003) (holding that petitioner’s claim that he was entitled to jail time credit was facially insufficient). Consequently, we affirm the postconviction court’s order without prejudice to any right Mr. Clark may have to refile a facially sufficient motion for prison credit under rule 3.800(a). Id. Any such motion will not be considered successive.

Affirmed.

CASANUEVA and VILLANTI, JJ„ Concur.


text:
    The STATE of Florida, Appellant, v. Donald Roy GREEN, Appellee.
    No. 3D05-1991.
    District Court of Appeal of Florida, Third District.
    March 22, 2006.
    Rehearing Denied July 25, 2006.
    Charles J. Crist, Jr., Attorney General and María T. Armas, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Shannon P. McKenna, Assistant Public Defender, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The state appeals from a downward departure sentence entered pursuant to defendant’s plea agreement with the trial court alone, to which the state clearly objected, and from which it said it would appeal. Because there is acknowledgedly no basis for the downward departure, and the state adequately preserved the issue below, see State v. Brownell, 922 So.2d 244 (Fla. 3d DCA 2006); see also State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002), review denied, 832 So.2d 105 (Fla.2002); State v. Perez, 802 So.2d 1167 (Fla. 3d DCA 2001), review denied, 823 So.2d 125 (Fla.2002); State v. Turro, 724 So.2d 1216 (Fla. 3d DCA 1998), the sentence is reversed and the cause remanded either to sentence defendant within the guidelines or to permit him to withdraw his plea.

Reversed and remanded.


text:
    Scott SWEET, Appellant, v. Michael F. SHEEHAN, M.D., Appellee.
    No. 2D04-2744.
    District Court of Appeal of Florida, Second District.
    March 24, 2006.
    Rehearing Denied June 6, 2006.

      Philip M. Burlington, P.A., West Palm Beach, and David G. Eaton of Eaton & Powell, Tampa, for Appellant.
    Bradley S. Bell, Richard B. Mangan, Jr., and R. Clifton Acord, II, of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellee.
   KELLY, Judge.

Scott Sweet sued his psychiatrist, Dr. Michael F. Sheehan, for medical malpractice after he sustained severe neurological damage as a result of a failed suicide attempt. The facts underlying Sweet’s lawsuit are largely undisputed. Sweet began seeing Dr. Sheehan for depression and obsessive compulsive disorder in December 1993. In January 1997, Sweet told Dr. Sheehan that he felt hopeless and depressed and that he was considering suicide. Because he feared Sweet would take his own life, Dr. Sheehan recommended that Sweet admit himself to a hospital for treatment. When Sweet refused, Dr. Sheehan called 911, resulting in Sweet’s hospitalization. Sweet did not attempt to take his own life at that point, and after his release from the hospital, he continued his sessions with Dr. Sheehan.

In mid-November 2002, Dr. Sheehan diagnosed Sweet at a regular office visit as suffering from severe depression and suicidal ideation, but he did not recommend that Sweet be hospitalized. Within days, Sweet unsuccessfully attempted suicide by taking an overdose of medication Dr. Shee-han had px-escribed. Shortly thereafter, Sweet telephoned Dr. Sheehan and told him of his suicide attempt. Dr. Sheehan did not recommend that Sweet admit himself to a psychiatric facility, and he did not notify Sweet’s wife, parents, or son of the potential harm that could result if Sweet was not hospitalized. Days later, at a subsequent office visit, Sweet told Dr. Sheehan he was disappointed his suicide attempt failed. Dr. Sheehan again noted Sweet’s severe depression, but he did not notify anyone of Sweet’s condition or recommend hospitalization. The next day, Sweet took an overdose of drugs which had been prescribed by Dr. Sheehan. Sweet survived but suffered severe neurological damage.

In his complaint, Sweet alleged that Dr. Sheehan had a duty to exercise a level of care and treatment recognized as acceptable and appropriate by similar physicians and that he deviated from this accepted standard of care in one or more of the following respects: (1) failing to appropriately recognize and treat Sweet’s severe depression, (2) failing to recommend to Sweet and his family that Sweet needed immediate hospitalization after his first suicide attempt, (3) failing to adequately inform Sweet and his family of the risks of not being hospitalized, and (4) failing to appropriately monitor the amount of medication prescribed.

Dr. Sheehan moved for summary judgment. He first argued that he did not owe a duty to Sweet. In support of this contention, he relied primarily on Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988), in which the Fifth District held that as a matter of law a psychiatrist has no duty to involuntarily hospitalize a patient. Dr. Sheehan argued that because he was treating Sweet on an outpatient basis, he had no duty to prevent or attempt to prevent Sweet’s overdose or attempted suicide by involuntarily hospitalizing him; In support of his motion, Dr. Sheehan submitted the affidavit of psychiatrist Richard B. Seely. Dr. Seely opined that Dr. Sheehan “met or exceeded the standard of care applicable to him,” that Dr. Sheehan’s treatment of Sweet, including the type and dosage of medication prescribed did not cause or contribute to Sweet’s suicide attempt, and that Dr. Sheehan had no duty to hospitalize Sweet to prevent him from harming himself.

In opposition to Dr. Sheehan’s motion, Sweet submitted the affidavit of psychiatrist Larry S. Kirstein. Dr. Kirstein noted the ten-year relationship between Dr. Sheehan and Sweet and opined that Dr. Sheehan deviated from the requisite standard of care by failing to appropriately evaluate, treat, and manage Sweet’s severe depression after his initial suicide attempt including, but not limited to, recommending hospitalization to Sweet and his family. The trial court ultimately concluded that Dr. Sheehan owed no duty to Sweet and that there was no causal connection between Dr. Sheehan’s alleged negligence and Sweet’s injuries. Sweet appeals from the summary judgment entered in favor of Dr. Sheehan.

Sweet first contends that the trial court erred when it determined that Dr. Sheehan owed no duty to Sweet. We agree. Florida law unquestionably recognizes that physicians owe their patients a duty to “use the ordinary skills, means and methods that are recognized as necessary and which are customarily followed in the particular type of case according to the standard of those who are qualified by training and experience to perform similar services in the community or in a similar community.” Brooks v. Serrano, 209 So.2d 279, 280 (Fla. 4th DCA 1968); see also Pate v. Threlkel, 661 So.2d 278, 280 (Fla.1995); Torres v. Sullivan, 903 So.2d 1064, 1067 (Fla. 2d DCA 2005); but see Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001) (holding that a psychotherapist did not owe a legal duty to an outpatient client who committed suicide notwithstanding the fact that the plaintiffs expert opined that the psychotherapist had failed to act in accordance with the relevant standard of care). Section 766.102(1), Florida Statutes (2004), codifies this duty, stating that a health care provider has a duty to act in accordance with the prevailing professional standard of care for that health care provider. Pate, 661 So.2d at 280. Thus, the relevant inquiry is not whether Dr. Sheehan had a duty, but whether Dr. Sheehan breached that duty by failing to treat Sweet in accordance with the standard of care required of him, and if so, whether this failure resulted in Sweet’s injuries. See Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398, 399 (Fla. 2d DCA 1988) (holding that to prevail in a medical malpractice action, a plaintiff must identify the standard of care owed by the physician, establish that the physician breached the duty to render medical care in accordance with the requisite standard of care, and establish that the breach proximately caused the alleged injury).

The prevailing professional standard of care for a given health care provider “shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” § 766.102(1). In medical malpractice cases, the standard of care is determined by a consideration of expert testimony. Pate, 661 So.2d at 281; Torres, 903 So.2d at 1068. The record demonstrates that the affidavits and testimony of the parties’ experts conflicted on the question of whether Dr. Sheehan acted within the applicable standard of care in assessing and treating Sweet’s mental condition. To be entitled to a summary judgment, the moving party “must conclusively show the absence of any genuine issue of material fact.” Holl v. Talcott, 191 So.2d 40 (Fla.1966). Because Dr. Sheehan failed to demonstrate the absence of a genuine issue as to “the standard of care required and observed,” he was not entitled to a summary judgment on this ground. See Holl, 191 So.2d at 46; see also Torres, 903 So.2d at 1068.

Dr. Sheehan alternatively argued that he was entitled to summary judgment because Sweet could not demonstrate a direct causal relationship between any alleged deviation from the standard of care and Sweet’s injuries. To establish causation in a medical malpractice action, a plaintiff must show that the plaintiffs injury more likely than not resulted from the defendant’s negligence. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1020 (Fla.1984); Beisel v. Lazenby, 444 So.2d 953 (Fla.1984). Thus, to be entitled to a summary judgment Dr. Sheehan, as the moving party, had the burden to conclusively establish that Sweet could not show that his injuries more likely than not resulted from Dr. Sheehan’s alleged negligence. Dr. Sheehan relied on his expert’s affidavit to support his contention; however, the expert’s opinion was nothing more than a “net opinion,” and thus it does not satisfy Dr. Sheehan’s burden of establishing conclusively the absence of genuine issues of material fact. See Holl, 191 So.2d at 45. Accordingly, Dr. Sheehan was not entitled to summary judgment on this ground.

Because Dr. Sheehan failed to carry his burden to demonstrate conclusively the absence of any genuine issues of material fact, the trial court should not have granted his motion for summary judgment. Accordingly, we reverse the judgment in favor of Dr. Sheehan and remand for further proceedings.

Reversed and remanded for further proceedings.

VILLANTI and WALLACE, JJ., Concur.

      . Dr. Sheehan’s arguments rest largely on his contention that no Florida case holds that a psychiatrist has a duty to hospitalize a patient against his will. However, Sweet's complaint does not allege that Dr. Sheehan should have forced Sweet’s commitment. This contention was advanced in regard to Sweet's presuit investigation only. While Sweet has indicated in his brief that he may attempt to reassert this contention based on testimony from Dr. Sheehan indicating that under some circumstances the applicable standard of care might require him to attempt involuntary hospitalization, this issue was not before the trial court when Dr. Sheehan moved for summary judgment. Thus, it is not before us in this appeal, and we express no opinion regarding the merits of such a claim.

      . " '[N]aked assertion[s] — unsupported by an expert medical explanation of its basis or the reason it was reached.’ ” Holl, 191 So.2d at 45.