source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Gabriel HARDEN, et al., Appellees.
    No. SC04-613.
    Supreme Court of Florida.
    May 18, 2006.
    Rehearing Denied Sept. 6, 2006.

      Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General, Louis F. Hubener, Chief Deputy Solicitor General, Lynn C. Hearn, Deputy Solicitor General, and Jason Vail, Assistant Attorney General, Tallahassee, FL, for Appellant.
    G. Richard Strafer, P.A., Anthony C. Vitale, P.A., Miami, FL, Ronald J. Manto of Manto and Kassebaum, LLP, Coconut Grove, FL, and Charles Wender, Boca Ra-ton, FL, for Appellees.
    M. Stephen Turner, P.A., Kelly A. O’Keefe and Brooke E. Lewis of Broad and Cassel, Tallahassee, FL, and Gabriel L. Imperato, P.A., of Broad and Cassel, Fort Lauderdale, FL, on behalf of DaVita, Inc., Fresenius Medical Care Holdings, Inc., and Gambro Healthcare, Inc.; Brit L. Geiger, New York, NY, Gadi Weinreich, and Howard J. Young, Washington, D.C., on behalf of Sonnenschein Nath and Ro-senthal, LLP; and Max R. Price and Colleen M. Greene, Miami, FL, on behalf of Joel M. Berger, D.D.S., As Amici Curiae.
   QUINCE, J.

We have on appeal a decision of the Third District Court of Appeal declaring invalid section 409.920(2)(e), Florida Statutes (2000), the “anti-kickback” provision of the Florida Medicaid fraud statute. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we conclude that this provision of Florida’s' Medicaid fraud statute is in conflict with federal law and therefore preempted by it.

FACTS AND PROCEDURAL HISTORY

In December 2000, the Office of the Statewide Prosecutor filed a nine-count information against ten individuals (Gabriel Harden, Edward Polsky, Maria Rodriguez, Bruce Eric Smith, Herbert Lee Goss, Flora Johnson, Elsa Cortorreal, Victor Rivera, Billy Madison, and Von Shelia Carter) associated with or “employed by” Dental Express Dentists, Dental Express, Inc., and Express Dental, Inc., three corporate entities providing dental services to children (hereinafter Dental Express). The information charged these individuals with conspiracy, racketeering, and Medicaid fraud under section 409.920(2)(e), Florida Statutes (2000). The State alleged that the defendants engaged in a “pay for patients” scheme in which individuals received “per head” payments in exchange for soliciting and driving Medicaid-eligible children for dental treatment at Dental Express.

The defendants filed motions to dismiss the information, arguing that the payment of wages by a Medicaid provider to its employees for the solicitation and transportation of Medicaid-eligible children to dental facilities for treatment was expressly protected by the federal Medicaid statute and the federal administrative regulation “safe harbor” provisions. Thus, the defendants argued, the State’s attempt to prosecute this federally protected activity was unconstitutional under the Supremacy Clause in article VI, clause 2 of the United States Constitution. Alternatively, the defendants argued that the undefined term “remuneration” in section 409.920(2)(e) was unconstitutionally vague as applied to employer-employee wages. They also argued that the “solicitation” of patients by employees of a legitimate Medicaid provider, when the solicitation involves no intent to defraud, is protected activity under the First Amendment of the United States Constitution and article I, section 9 of the Florida Constitution. In its response, the State conceded that the patients treated by Dental Express were Medicaid-eligible patients. However, the State asserted that the commission-based method of paying the drivers was unlawful under both federal and state law.

After hearing argument from the parties, the circuit court entered an order granting the defendants’ motion to dismiss. The circuit court concluded that the State’s attempt to prosecute the defendants under the unlawful remuneration provision of section 409.920(2)(e) was preempted by federal law and thus unconstitutional under the Supremacy Clause. The circuit court also held that the mens rea requirement in section 409.920(l)(d) was preempted by federal law and unconstitutional under the Supremacy Clause. Additionally, the circuit court agreed with the defendants’ alternative argument that the State’s construction of section 409.920(2)(e) as a criminal ban on the solicitation of commercial business would, absent an intent to defraud requirement not contained in the statute, violate the First Amendment and render the statute unconstitutionally vague as applied.

The State appealed the circuit court’s ruling to the Third District. The Third District agreed with the circuit court that there is an implied conflict preemption which renders section 409.920(2)(e) unconstitutional. See State v. Harden, 873 So.2d 352 (Fla. 3d DCA 2004). In reaching this conclusion, the Third District noted two significant differences between the federal statute and the Florida statute. First, the federal statute contains “safe harbor” provisions that exclude certain types of payments from being considered “illegal remuneration,” including employer-employee payments for the provision of covered items or services such as the transportation of patients for eligible dental services. Based on this distinction, the Third District concluded that Florida’s anti-kickback statute criminalizes activity that is protected under the federal statute and “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” thereby resulting in implied conflict preemption. Id. at 355. Second, the federal statute contains a “knowing and willful” mens rea requirement that is not part of the Florida statute. Under federal law, the government must prove that the defendant acted with knowledge that his conduct was unlawful. In contrast, the Florida statute only requires that the defendant act knowingly. The Florida statutory definition of “knowingly” in section 409.920(l)(d) includes mere negligence and consequently criminalizes activity that the federal statute intended to protect. Id. The Third District found these two differences to be disposi-tive in this case and did not address the other constitutional defects found by the circuit court. Id. at 355 n. 1. Accordingly, the Third District declared the statute unconstitutional.

The State sought review by this Court on the basis of our mandatory jurisdiction to hear appeals of district court decisions declaring a state statute invalid. The Court heard oral argument from the parties and also received several amicus briefs filed in support of the appellees, who were the defendants in the circuit court. The State raises three arguments in its appeal to this Court. The State contends that: neither the federal Medicaid anti-Mckback statute nor the federal safe harbor regulations preempts section 409.920(2)(e); the safe harbor regulations do not protect a “per head” payment scheme for the solicitation and referral of eligible Medicaid patients; and section 409.920(2)(e) does not violate the First Amendment and is not constitutionally vague.

LAW AND ANALYSIS

“We review de novo a district court decision declaring a statute unconstitutional.” Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla.2004). This case involves the confluence of federal and state Medicaid law, specifically those provisions referred to as the “anti-kickback” statutes. Both the federal and state statutes prohibit the payment, offer, solicitation, or receipt of a kickback, bribe, or rebate for referring an individual for services paid for under the Medicaid program or for arranging such services. We are asked to determine whether Florida’s statute, which encompasses a wide range of remunerations within its ambit of prohibited “kickbacks,” is preempted by the federal statute and thus unconstitutional under the Supremacy Clause of the United States Constitution. See U.S. Const, art. VI, cl. 2 (stating that federal law “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). In resolving this issue, we begin by reviewing the basic principles of preemption and then we examine the history and language of both the federal and state statutes.

Under the Supremacy Clause, a federal law may expressly or impliedly preempt state law. A state cannot assert jurisdiction where Congress clearly intended to preempt a field of law. See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). The United States Supreme Court has recognized three categories of preemption: (1) express preemption where a federal statute contains “explicit pre-emptive language”; (2) implied field preemption, where the scheme of federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it”; and (3) implied conflict preemption, in which “compliance with both federal and state regulations is a physical impossibility” or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality opinion) (explaining categories of preemption recognized in Supreme Court case law). The federal anti-kickback statute does not contain explicit preemptive language, nor does it contain such a pervasive scheme of federal regulation so as to indicate field preemption. Thus, this case involves the third category of preemption, i.e., implied conflict preemption.

In any preemption case, the court’s “ultimate task ... is to determine whether state regulation is consistent with the structure and purpose of the statute as a whole.” Id. (plurality opinion). This involves “looking to the provisions of the whole law, and to its object and policy.” Id. (plurality opinion) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)). “The nature of the power exerted by Congress, the object sought to be attained, and the character of the obligations imposed by the law, are all important in considering the question of whether supreme federal enactments preclude enforcement of state laws on the same subject.” Hines v. Davidowitz, 312 U.S. 52, 70, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

In analyzing a claim of preemption, a reviewing court assumes “that the historic police powers of the States [are] not to be superceded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d 66, 75 (1st Cir.2001) (quoting Grant’s Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agric., Food & Rural Res., 232 F.3d 8, 14-15 (1st Cir.2000)), aff'd 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003). Federal preemption of a state law is “strong medicine,” and is “not casually to be dispensed.” Id. (quoting Grant’s Dairy, 232 F.3d at 18). This is especially true when the federal statute creates a program, such as Medicaid, that utilizes “cooperative federalism.” “Where coordinated state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal preemption becomes a less persuasive one.” Id. (quoting Wash. Dep’t of Soc. & Health Servs. v. Bowen, 815 F.2d 549, 557 (9th Cir.1987)); see also Pharm. Research & Mfrs. of America v. Walsh, 538 U.S. 644, 666, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003) (“The presumption against federal pre-emption of a state statute designed to foster public health has special force when it appears ... that the two governments are pursuing common purposes.”) (citation omitted).

Federal Anti-Kickback Statute

The current federal anti-kickback statute, entitled “Criminal penalties for acts involving Federal health care programs,” prohibits illegal remunerations. 42 U.S.C. § 1320a-7b(b) (2000). The statute provides that

whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind—
(A) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or
(B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program,
shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both.

Id. § 1320a-7b(b)(l). The statute also prohibits anyone from “knowingly and willfully offering] or pay[ing] any remuneration” for the same purposes. Id. § 1320a-7b(b)(2). Thus, in order to convict under the federal anti-kickback statute, the government must prove three elements: the defendant (1) knowingly and willfully (2) solicited or received remuneration (3) in return for, or to induce, referral of program-related business. Paragraph (b)(3) of the federal statute lists eight exceptions to which the prohibitions in paragraphs (1) and (2) do not apply. One exception is any payment practice that is specified in the regulations promulgated by the Secretary of the Department of Health and Human Services (HHS). These are the so-called “safe harbors” which are exempt from the anti-kickback prohibitions.

The federal anti-kickback statute was first enacted as part of the Social Security Amendments of 1972, and was primarily concerned with outlawing health care referrals that were considered unethical or inappropriate. See Social Security Amendments of 1972, Pub.L. No. 92-603, § 242(b), 86 Stat. 1329, 1419 (1972). The original statute made it a misdemeanor for any individual to furnish, solicit, offer, or receive any kickback, bribe, or rebate in connection with any item or service for which payment could be made under the Medicare or Medicaid programs. Id. The penalties for violating the statute were fines of up to $10,000 and imprisonment for up to one year. Id. However, several problems arose as to the interpretation of the statute, including the following: there was no mens rea requirement for a violation of the statute; it was unclear what types of business arrangements were precluded by the statute; and the terms “kickback,” “bribe,” and “rebate” were not defined in the statute. These uncertainties led to conflicting court interpretations of the statute and the test to be applied in determining whether an anti-kickback violation had occurred. Compare United States v. Porter, 591 F.2d 1048 (5th Cir. 1979) (applying a narrow interpretation of the anti-kickback statute) with United States v. Hancock, 604 F.2d 999 (7th Cir. 1979) (rejecting reasoning in Porter and holding that broad interpretation of statute was appropriate).

Congress amended the statute in 1977 by substituting “any remuneration” for the terms “rebate,” “bribe,” and “kickback”; by increasing the violation from a misdemeanor to a felony; by increasing the possible fine to $25,000 and the possible length of imprisonment to five years; and by excluding two business practices from the scope of the statute, i.e., the practice of discounts and price reductions and payments made to employees under a bona fide employment relationship. See Medicare-Medicaid Anti-Fraud and Abuse Amendments, Pub.L. No. 95-142, § 4(b)(1), 91 Stat. 1175, 1180-81 (1977). As explained in the legislative history, the statutory amendments were based on a general agreement “that the existing language of these penalty statutes is unclear and needs clarification.” H.R.Rep. No. 95-393(11), at 53 (1977), reprinted in 1977 U.S.C.C.A.N. 3039, 3055. The Office of the Inspector General (OIG) of HHS has explained that the exceptions for certain business practices were prompted by the concerns of “health care providers that many relatively innocuous, or even beneficial, commercial arrangements are technically covered by the statute and are, therefore, subject to criminal prosecution” because “the statute on its face is so broad.” Medicare and Medicaid Programs; Fraud and Abuse OIG Anti-Kickback Provisions, 54 Fed.Reg. 3088, 3088 (Jan. 23, 1989) (explaining the statutory background for proposed safe harbor regulations). The legislative history also specifically states that “an amount paid ‘by an employer to an employee for employment in the provision of covered items or services’ is exempt” from the definition of a kickback. H.R. Conf. Rep. 95-673 (1977), at 41, reprinted in 1977 U.S.C.C.A.N. 3113, 3115. It is this employee payment exception that is at issue here. See 42 U.S.C. § 1320a-7b(b)(3)(B) (2000).

Congress amended the statute again in 1980 by adding a “knowingly and willfully” mens rea element. See Omnibus Reconciliation Act of 1980, Pub.L. No. 96-499, § 917, 94 Stat. 2599, 2625 (1980). As explained by the House Budget Committee, this amendment was prompted by a “concern[ ] that criminal penalties may be imposed under current law to an individual whose conduct, while improper, was inadvertent.” H.R. Rep. 96-1167, at 59 (1980), reprinted in 1980 U.S.C.C.A.N. 5526, 5572. Accordingly, Congress amended the statute “to assure that only persons who knowingly and willfully engage in the proscribed conduct could be subject to criminal sanctions.” Id.

The anti-kickback statute was amended again in 1987 to establish more statutory exceptions. See Medicare and Medicaid Patient and Program Protection Act of 1987, Pub.L. No. 100-93, §§ 4, 14, 101 Stat. 680, 688-89, 697-98 (1987). These statutory exceptions were designed to assist health care providers in understanding the legal limits of the anti-kickback statute. The Act also required the Secretary of HHS to issue regulations establishing specific financial arrangements that would not violate the anti-kickback statute, referred to as “safe harbors.” The proposed regulations took a number of years to be finalized. These safe harbors, which currently number twenty-two, provide immunity from prosecution for behavior that might have violated the anti-kickback statute. The employee safe harbor provides that a remuneration “does not include any amount paid by an employer to an employee, who has a bona fide employment relationship with the employer.” 42 C.F.R. § 1001.952(i) (2005). This provision also states that the term employee has the same meaning as it does for purposes of 26 U.S.C. § 3121(d)(2), the Internal Revenue Code definition of an employee. The employee safe harbor presumes a reduced potential for program abuse because of the greater degree of control that employers are presumed to exercise over their employees. See Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed. Reg. 35,952, 35,981 (July 29, 1991) (“We are confident that the employer-employee relationship is unlikely to be abusive, in part because the employer is generally fully hable for the actions of its employees and is therefore more motivated to supervise and control them.”).

The 1987 amendment also gave the Secretary of HHS authority to exclude a violator from participating in federal health care programs and to direct appropriate state agencies to exclude that person or entity from participation in state health care programs as well. See 42 U.S.C. § 1320a-7a(a) (2000). In addition to the criminal penalties, as of August 5, 1997, a violator may also be subject to a civil penalty of up to $50,000 for each act and to an assessment of damages. Id.

As part of the Health Insurance Portability and Accountability Act, in 1996 Congress charged HHS with issuing advisory opinions in response to requests for guidance as to whether a specific business arrangement violates the anti-kickback law. See Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, § 205, 110 Stat.1936, 2000-02 (1996) (codified as 42 U.S.C. § 1320a-7d(b)). These advisory opinions require the re-questor to fully identify himself or herself and to involve an actual set of facts or a seriously proposed transaction that will be implemented if the requestor receives a favorable advisory opinion. 42 C.F.R. §§ 1008.11-.15 (2005). The request may also seek advice on the application of the anti-kickback statute or civil money penalties to a set of facts. Id. § 1008.5(a). Notably, the requestor may not seek an opinion as to whether something is fair market value or whether a person is a bona fide employee. Id. § 1008.5(b); see also 42 U.S.C. § 1320a-7d(b)(3) (2000).

Beginning in 1989, the OIG has issued “Fraud Alerts” to Medicaid providers from time to time. These alerts are intended to inform the health care industry about possibly fraudulent and abusive practices within the industry that constitute statutory violations. See Publication of OIG Special Fraud Alerts, 59 Fed.Reg. 65,372 (Dec. 19, 1994). The fraud alerts also create a stronger case of “intent” if the questionable conduct continues after the alert, encourage whistleblowers to report questionable conduct, and create a cautionary effect on the industry. Patricia Meador, Health Care Fraud and Abuse, 1175 Practicing L. Inst./Corp. 21, 43 (2000).

In response to two requests that OIG “clarify the relationship between the [federal anti-kickback] statute and various State laws,” OIG responded that “[i]ssues of state law are completely independent of the federal anti-kickback statute and these regulations.” Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed.Reg. 35,952, 35,957 (July 29, 1991). The OIG also noted that there is no federal preemption provision under the statute, so conduct that is lawful under the federal statute or regulations may still be unlawful under state law, and vice-versa. The State cites this commentary as evidence that there is no federal preemption of the Florida statute at issue in this case. However, we do not read this commentary as entirely foreclosing the question of preemption. As explained above, the absence of an express preemption provision only means that there is no explicit preemption of the Florida anti-kickback statute. The statute may still be subject to implicit conflict preemption. As the Supreme Court explained in Gade, conflict preemption can result when it is impossible to comply with both the state and federal regulations or where the state law is an obstacle to accomplishing the full purposes and objectives of Congress. 505 U.S. at 98, 112 S.Ct. 2374.

Gade involved Illinois statutes governing the licensing requirements for hazardous waste equipment operators and workers. The Supreme Court concluded that these state regulations were impliedly preempted because they were in conflict with the federal Occupational Safety and Health Act (OSHA) regulations. The Supreme Court concluded that the “OSH Act as a whole evidences Congress’ intent to avoid subjecting workers and employers to du-plicative regulation.” 505 U.S. at 100, 112 S.Ct. 2374 (plurality opinion). The Supreme Court noted that OSHA permits a state to assume responsibility for occupational safety and health standards, but only if it submits a plan that is approved by the Secretary of Labor. Id. at 99, 112 S.Ct. 2374 (plurality opinion). In considering the provisions in this section of OSHA as a whole, the Supreme Court concluded that the “implications of the text of the statute evince a congressional intent to preempt nonapproved state regulations when a federal standard is in effect.” Id. at 104 n. 2, 112 S.Ct. 2374 (plurality opinion).

Unfortunately, the federal anti-kickback statute is silent on state anti-kickback laws and state regulatory schemes. Instead, we look to the statutory differences between the federal and state laws to determine whether these differences warrant conflict preemption in light of the preemption principles explained above.

Florida Anti-Kickback Statute and Preemption

Section 409.920(2)(e), Florida Statutes (2000), which is included in the statute entitled “Medicaid provider fraud,” makes it unlawful to:

Knowingly solicit, offer, pay, or receive any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind, in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made, in whole or in part, under the Medicaid program, or in return for obtaining, purchasing, leasing, ordering, or arranging for or recommending, obtaining, purchasing, leasing, or ordering any goods, facility, item, or service, for which payment may be made, in whole or in part, under the Medicaid program.

A person who violates this subsection commits a felony of the third degree, which is punishable by imprisonment of up to five years and a fine of $5,000. § 409.920(2), Fla. Stat. (2000) (“A person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084”). The statute was created in 1991. See ch. 91-282, § 50, Laws of Fla. The statute provided definitions related to Medicaid provider fraud, established penalties for certain types of fraud, and set the statute of limitations for prosecution under the statute. See Fla. H.R. Comm, on Health Care, CS for CS for SB 1000 (1991) Staff Analysis 21 (May 21, 1991) (on file at Fla. Archives). There were no pertinent substantive changes to the statute until 2004, when the Legislature changed the definition of “knowingly” to require a higher scienter level. See ch. 2004-344, § 8, Laws of Fla. However, that higher scienter is not applicable to the instant case, which was prosecuted under the 2000 statute.

The 2000 Florida anti-kickback statute differs from the federal statute in two important respects. First, the Florida statute has a lower mens rea element which permits an anti-kickback violation based on negligent behavior. The Florida statute defines “knowingly” as “done by a person who is aware or should be aware of the nature of his or her conduct and that his or her conduct is substantially certain to cause the intended result.” § 490.920(l)(d), Fla. Stat. (2000) (emphasis added). In contrast, the federal statute applies only to those acts that are performed “knowingly and willfully,” which requires proof that “the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” United States v. Starks, 157 F.3d 833, 838 (11th Cir.1998) (quoting Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), in which a federal firearms trafficking law prohibited anyone from “willfully” violating the statutory provision that forbids dealing in firearms without a federal license). These mens rea elements, which were added to the federal Medicaid anti-kickback statute in 1980, reflect Congressional concern “that criminal penalties may be imposed under current law to an individual whose conduct, while improper, was inadvertent.” H.R.Rep. No. 96-1167, at 59 (1980), reprinted in 1980 U.S.C.C.A.N. 5526, 5572; see also United States v. Jain, 93 F.3d 436, 440 (8th Cir.1996) (noting that “the literal language of this statute might otherwise encompass some types of innocent conduct”).

Second, the Florida anti-kickback statute contains no exceptions or safe harbors. Congress was concerned that the federal anti-kickback statute was so broad that “some relatively innocuous commercial arrangements were technically covered by the statute and therefore were subject to criminal prosecution.” Medicare and State Health Care Programs: Fraud and Abuse; Clarification of the Initial OIG Safe Harbor Provisions & Establishment of Additional Safe Harbor Provisions Under the Anti-Kickback Statute, 64 Fed. Reg. 63,518, 63,518 (Nov. 19,1999).

Our research has only revealed one other case which addresses the question of preemption of a state anti-kickback statute. In Massachusetts v. Mylan Labs., 357 F.Supp.2d 314 (D.Mass.2005), the defendants argued that the anti-kickback provision in Massachusetts law was preempted by federal law. The defendants argued that “the lack of a scienter requirement means that certain behavior legal under the federal statute would be illegal under the Massachusetts statute, leading to inevitable conflict.” Id. at 325. The Mylan Laboratories defendants cited the Third District’s decision in Harden in support of their preemption argument. However, because the argument was raised late in the briefing and because the court found that “the interpretation of the law [on the scienter requirement] is evolving,” it deferred ruling on the preemption issue. Id.; see also Boman v. S.E. Med. Services Group, No. 9501957, 1998 WL 1182063, at *10 (Mass.Super.Ct. Jan. 7, 1998) (“The primary difference between the federal anti-kickback statute and the state provisions is that the Massachusetts statutes do not require the action or practice to be knowing and willful.”).

Based on the differences between the federal and state statute at issue here, we conclude that Florida’s anti-kickback statute criminalizes conduct that federal law specifically intended to be lawful and shielded from prosecution. See legislative history of federal statute discussed supra pp. 486-88 and differences in Florida statute discussed supra pp. 490-92. There is clear congressional intent to exempt compensation paid by employers to bona fide employees for providing covered items or services from those remunerations that constitute prohibited kickbacks under the federal statute. The heightened mens rea of the federal statute also indicates a clear intent that negligent or inadvertent behavior not subject an individual to prosecution under the federal statute.

Both the heightened mens rea requirement and the safe harbor provisions are key elements in fulfilling the purpose of the federal anti-kickback statute, which is to outlaw health care referrals that are unethical. Accordingly, we agree with the Third District that the Florida anti-kickback statute is preempted because it presents an obstacle to the accomplishments of the purposes of the federal law.

Employee Safe Harbor

The State also argues that the employee safe harbor exception to the federal Medicaid anti-kickback statute does not permit the type of “per head” referral payments made here, even if the payments are made to a bona fide employee. The employee exception provides that the prohibition on illegal remunerations is not applicable to “any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services.” 42 U.S.C. § 1320a-7b(b)(3)(B) (2000). The safe harbor regulation further explains that “the term employee has the same meaning as it does for purposes of 26 U.S.C. [§ ]3121(d)(2).” 42 C.F.R. § 1001.952® (2005). In explaining the final rule which implemented the safe harbors, the OIG stated that the employee exception permits “an employer to pay an employee in whatever manner he or she chose for having that employee assist in the solicitation of program business and applied to bona fide employee-employer relationships.” Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed.Reg. 35,952, 35,953 (July 29, 1991); see also Medicare and Medicaid Programs; Fraud and Abuse OIG Anti-kickback Provisions, 54 Fed.Reg. 3088, 3093 (Jan. 23, 1989) (“We believe that if individuals and entities desire to pay a salesperson on the basis of the amount of business they generate, then to be exempt from civil or criminal prosecution, they should make these salespersons employees where they can and should exert appropriate supervision for the individual’s acts.”). In its provision-by-provision analysis of the safe harbors, the OIG explained that Congress expressly limited the employee exception to bona fide employment relationships, which do not include independent contractors; that the IRS definition of employee which establishes the criteria for a bona fide employment relationship under the safe harbor also includes the IRS’s interpretation of 26 U.S.C. § 3121(d)(2) as codified in its regulations and other interpretive sources; that a part-time employee who is paid on a commission-only basis can fall within the scope of the employee provision as long as a bona fide employer-employee relationship exists; and that other types of personal service arrangements, while not covered by the employee provision, may be protected under the personal services and management contracts safe harbor provision. 56 Fed.Reg. at 35,981.

Individuals or entities will be exempt from prosecution under the federal anti-kickback laws if the activities in which they engage satisfy the require-merits of the safe harbor provisions. See Lissa Bourjolly & Erin Moak, Health Care Fraud, 41 Am.Crim. L.Rev. 751, 767 (2004). In order to fit within a safe harbor, each element of the particular safe harbor must be met. See David W. Ball, Medicare Fraud and Abuse Anti-Kickback Safe Harbor Regulations, 3 S.C. Law. 34, 35 (1991). However, failure to comply with the applicable safe harbors is not a per se violation of the anti-kickback statute. In the preamble to the 1999 safe harbor regulations, OIG states that an arrangement does not have to comply with a safe harbor in order to be legal under the anti-kickback statute. Medicare and State Health Care Programs: Fraud and Abuse, 64 Fed.Reg. 63,518, 63,521 (Nov. 19, 1999). Moreover, in response to several comments, the OIG emphasized that an arrangement is not necessarily suspect because it does not comply with a safe harbor, although it may be suspect under particular circumstances. However, due to substantial uncertainty in the safe harbors, each transaction is likely to be evaluated on a case-by-case basis to determine whether it constitutes an anti-kickback violation. Bourjolly & Moak, 41 Am.Crim. L.Rev. at 766-67. The burden of proof lies with the entity or individual claiming a safe harbor as a defense. Health Care Programs: Fraud and Abuse, 57 Fed.Reg. 3298, 3353 (Jan. 29, 1992) (“The respondent bears the burden of going forward and the burden of persuasion with respect to affirmative defenses and any mitigating circumstances.”).

While there are no HHS advisory opinions that address the exact situation presented in the instant case, the OIG has made a number of enlightening statements in the preambles to the safe harbor regulations, In response to comments requesting that the OIG protect marketing and advertising activities because such activities promote competition or do not violate the statute, the OIG noted that many marketing and advertising activities may involve at least technical violations of the anti-kickback statute. Medicare and State Health Care Programs, 56 Fed.Reg. at 35,974. However, the OIG has also stated that many of these marketing and advertising activities should not be subject to prosecution because they are passive in nature and do not involve direct contact with program beneficiaries, or because the individual or entity involved in these promotions is not involved in the delivery of health care. Id.

There is no case law directly on point with the pay arrangement here. However, there are several cases involving payments for referrals. In one case, a federal district court upheld commission-based payments to physicians who referred Medicaid patients to the hospital that employed the physicians. See United States ex rel. Obert-Hong v. Advocate Health Care, 211 F.Supp.2d 1045 (N.D.Ill.2002). In another case, a Texas appellate court concluded that a contract between a hospital and a recruiter was not a violation of the federal anti-kickback statute because the recruiter was an employee under the safe harbor provision. See New Boston Gen. Hosp., Inc. v. Texas Workforce Comm’n, 47 S.W.3d 34 (Tx.App.2001). In contrast, the Eleventh Circuit upheld anti-kickback convictions for per-patient payments made to two employees of the Florida Department of Health and Rehabilitative Services (HRS) for referring patients to a drug treatment program funded by Medicaid. See United States v. Starks, 157 F.3d 833 (11th Cir.1998). The Eleventh Circuit concluded that the HRS employees did not fit within the employee safe harbor because they were not providing “covered items or services” as required by the statute, but were simply paid for referrals to the program; and they did not receive regular salary checks from the drug treatment program at their place of employment, but clandestinely received checks with false category codes or cash in parking lots and other locations to avoid detection by their coworkers. Id. at 839. The Seventh Circuit also found an anti-kickback violation for cash payments given to an independent cardiac pacemaker sales representative for each Medicare patient that he referred to a medical facility where he was not an employee. See United States v. Polin, 194 F.3d 863 (7th Cir.1999). The medical facility defendants argued that they had not violated the statute because the pacemaker sales representative recommended the facility to the patients but only a doctor could actually refer the patients to the facility. The Seventh Circuit did not agree with this argument and characterized the arrangement as a “classic case of an illegal kickback” prohibited by the federal statute. Id. at 867.

We note a glaring distinction between the arrangements upheld in Obert-Hong and New Boston and those deemed prohibited in Starks and Polín. The payments deemed legal involved payments to bona fide employees. See Obert-Hong, 211 F.Supp.2d at 1050 (explaining that the doctors signed employment contracts requiring them to refer patients to the hospital and that the anti-kickback statute was not designed to regulate hospital-physician employment relationships); New Boston, 47 S.W.3d at 36 (explaining that the Texas Workforce Commission found that the individual in question was an employee and not an independent contractor, based on a continuing relationship, training, and methods of compensation which included fringe benefits). In contrast, the payments found in violation of the federal anti-kickback statute involved payments to nonemployees. See Starks, 157 F.3d at 835-36 (describing payment recipients as community health aides in the employ of Florida HRS who were prohibited from accepting any outside employment that might pose a conflict of interest with their work at HRS and obligated to report any outside employment to HRS); Polin, 194 F.3d at 864 (describing person offered cash payments for referring patients to cardiac pacemaker monitoring service as a pacemaker sales representative).

Based on this limited precedent regarding the applicability of the employee safe harbor to various payment arrangements and the stated intent for this safe harbor, we agree with the circuit court and the Third District that the particular pay arrangement at issue here involves protected employer-employee payments for the provision of covered items or services, which are protected from criminal prosecution under the federal statute.

Constitutional Defects

The circuit court also ruled that the Florida statute violates Dental Express’s First Amendment right to solicit patients and provide transportation to those patients and is unconstitutionally vague. State v. Harden, No. F00-38785, at 17-20 (Fla. 11th Cir.Ct. Feb. 5, 2003) (order granting defendants’ motion to dismiss). On appeal, the Third District found the preemption issue to be dispositive and did not address these constitutional defects. State v. Harden, 873 So.2d 352, 355 n. 1 (Fla. 3d DCA 2004). Because we conclude that the statute is preempted by the federal law, we do not reach these constitutional issues.

CONCLUSION

For the reasons stated above, we agree with the Third District that section 409.920(2)(e), Florida Statutes (2000), is preempted by federal law and thus unconstitutional under the Supremacy Clause. Accordingly, we affirm the decision of the Third District in Harden.

It is so ordered.

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

LEWIS, J., concurs in result only.

CANTERO, J., recused.

      . The federal statute specifies certain activities that do not constitute prohibited “illegal remunerations.” See 42 U.S.C. § 1320a-7b(b)(3) (2000). Parallel administrative provisions are contained in 42 C.F.R. § 1001.952 (2005).

      . Section 409.920(l)(d) was amended by the Florida Legislature in 2004 to conform with the federal law on this point. See ch. 2004-344, § 8, at 2392-93, Laws of Fla. This amendment of the mens rea element was in response to the Third District's decision in Harden. See Fla. S. Comm, on Approp. & Fla. S. Comm. Health, Aging & Long-Term Care, CS for CS for SB 1064 (2004), Staff Analysis 10-11 (March 29, 2004) (on file with comm.). As amended, the statute now provides that the term "knowingly” also includes "willfully.”

      . This background statement was repeated by the OIG when it issued the final rule implementing the "safe harbor” regulations two years later. See Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed.Reg. 35,952, 35,952 (July 29, 1991) (codified at 42 C.F.R. § 1001.952 (2005)).

      . Some commentators list twenty-three safe harbors. This discrepancy is attributed to differences in how they are divided and not to the substantive content of the regulations. The Code of Federal Regulations divides the safe harbors into twenty-two sections. See 42 C.F.R. §§ 1001.952(a)-(v) (2005); see also Solicitation of New Safe Harbors and Special Fraud Alerts, 70 Fed.Reg. 73,186, 73,187 (Nov. 30, 2005) ("To date, OIG has developed and codified in 42 C.F.R. [§ ] 1001.952 a total of 22 final safe harbors that describe practices that are sheltered from liability.”). HHS is required to develop and publish an annual notice in the Federal Register formally soliciting proposals for modifying the existing safe harbors to the anti-kickback statute and for developing new safe harbors. See 42 U.S.C. § 1320a-7d(a) (2000). Thus, the safe harbors are subject to a continual process of refining and modification.

      . This provision of the Internal Revenue Code defines an employee as "any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee.” 26 U.S.C. § 3121(d)(2) (2000).

      . To date, the OIG has issued twelve individual Special Fraud Alerts. See Solicitation of New Safe Harbors and Special Fraud Alerts, 70 Fed,Reg. 73,186, 73,187 (Dec. 9, 2005); see also HHS Office of Inspector General, Fraud Alerts, Bulletins, and Other Guidance, http://oig.hhs.gov /fraud/fraudalerts. html (last visited May 1, 2006).

      . The definition of "knowingly" was amended by the Legislature in 2004 to include the word "willfully.” See ch. 2004-344, § 8, at 2392-93, Laws of Fla. As amended, the statute now provides:
      "Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident. As used in this section, the term "knowingly” also includes the word "willfully” or "willful" which, as used in this section, means that an act was committed voluntarily and purposely, with the specific intent to do something that the law forbids, and that the act was committed with bad purpose, either to disobey or disregard the law.
      § 409.920(l)(d), Fla. Stat. (2005).

      . Prior to the Supreme Court's decision in Bryan, only the Ninth Circuit Court of Appeals had applied a heightened mens rea standard to the federal anti-kickback statute. See Hanlester Network v. Shalala, 51 F.3d 1390, 1400 (9th Cir.1995) (construing "knowingly and willfully” as requiring defendants to know that the statute prohibits offering or paying remuneration to induce referrals and to engage in the prohibited conduct with the specific intent to disobey the law). Other circuits have interpreted "willfully” under a middle mens rea standard, which is consistent with the Supreme Court’s subsequent decision in Bryan. See United States v. Davis, 132 F.3d 1092, 1094 (5th Cir.1998) (approving jury instruction which informed jury that knowingly "means that the act was done voluntarily and intentionally, not because of mistake or accident”); United States v. Jain, 93 F.3d 436, 441 (8th Cir.1996) (concluding that heightened mens rea standard of Medicare anti-kickback statute only required proof that defendant knew that his conduct was wrongful and not that he knew it violated "a known legal duty”); United States v. Neufeld, 908 F.Supp. 491, 496-97 (S.D.Ohio 1995) (declining to follow the Hanlester interpretation of "willfulness” as requiring knowledge of illegality). Commentators have predicted that the standard announced in Bryan will be followed by federal courts in anti-kickback prosecutions. See Robb De Graw, Note, Defining “Willful” Remuneration: How Bryan v. United States Affects the Scienter Requirement of the Medicare/Medicaid Anti-kickback Statute, 14 J.L. & Health 271 (1999-2000). However, even after the decision in Bryan, the Tenth Circuit still applied the higher mens rea standard to an anti-kickback prosecution. See United States v. McClatchey, 217 F.3d 823 (10th Cir.2000) (requiring proof of specific intent to violate the law). Thus, there is still some question as to the scienter requirement for a violation of the federal anti-kickback statute. In no cases, however, have the federal courts applied a negligence or inadvertence standard similar to that in Florida’s statute.

      . This lack of cases might be attributable to the fact that some state anti-kickback statutes were drafted to closely follow the federal statute. See, e.g., People v. Palma, 40 Cal.App.4th 1559, 48 Cal.Rptr.2d 334, 338 (1995) (explaining that California legislature "was adopting the federal statutes” when it enacted the state anti-kickback statute; thus court looked to federal law for definition of “employee”); see also Colo.Rev.Stat. Ann. § 26-4-1103(2) (2002) (providing a number of exceptions to anti-kickback statute, including any remunerations permitted pursuant to “any safe harbor regulations of the federal department of health and human services”).


author: PER CURIAM. WELLS, J.,

text:
    THE FLORIDA BAR, Complainant, v. Kayo Elwood MORGAN, Respondent.
    No. SC04-1438.
    Supreme Court of Florida.
    June 22, 2006.
    Rehearing Denied Sept. 7, 2006.
    John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, and Michael David Soifer, Bar Counsel, Fort Lauderdale, FL, for Complainant.
    Fred Haddad, P.A., Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Kayo Elwood Morgan. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons that follow, we approve the referee’s findings and recommendation of a ninety-one-day suspension.

Facts and Recommendations

The Florida Bar filed a complaint against Morgan alleging he violated several of the Rules Regulating the Florida Bar by inappropriate courtroom behavior. A referee was appointed. After holding a hearing, the referee issued a report making detailed findings, summarized below.

Morgan represented a felony defendant in a circuit court trial. During the cross-examination of a prosecution witness, Morgan asked the witness how she was dressed on the occasion in question. The prosecution objected to the relevancy of the question. The court sustained the objection. At that point Morgan raised his voice and told the judge he did not understand why the judge was interfering with his cross-examination. This exchange occurred in front of the jury. The judge excused the jury. Morgan continued to speak in a loud and angry manner and to pace back and forth. The following exchange took place:

The Court: Mr. Morgan, I want you both to—
Mr. Morgan: I am moving for a mistrial.
The Court: Mr. Morgan, I am not going to—
Mr. Morgan: Don’t treat me like that in front of a jury.
The Court: I sustained an objection, and you—
Mr. Morgan: No judge treats me like that, in front of a jury.
The Court: I heard the way you treat other judges, and I don’t appreciate it.
Mr. Morgan: I don’t care how you think I treat other judges. You don’t treat me — you treat me with respect. I treat you with respect. I don’t care what you think about other judges.
The Court: Please come up, kindly. Please come up, sir.
Mr. Morgan: No, I’m staying right here.
The Court: I think you are out of line, sir.
Mr. Morgan: I think you are out of line. That’s what I think. You don’t talk to me like that in front of a jury.
The Court: You don’t have to talk any further. Are you going to continue? I sustained the objection, for the record.
Mr. Morgan: Wait a minute.
The Court: If you continue we will have a contempt hearing. I don’t want to go through this again.
Mr. Morgan: I object.
The Court: You are not going to pull stuff in my court without being — receiving—
Mr. Morgan: So you think I am pulling something on you, Judge Glare?
The Court: I think you are not respectful. I’ve never heard anyone—
Mr. Morgan: You are not respectful to me.
The Court: I have sustained an objection. I don’t want you to talk for one moment. I am controlling this courtroom. I am the judge here.

Ultimately, the trial court agreed to let Morgan make a proffer. During Morgan’s questioning of the witness during the proffer, the prosecution objected that the proffer exceeded the scope of the subject of the proffer, which the judge sustained. At that point, the following exchange occurred:

[The Prosecutor]: Judge, now it’s gone beyond the proffer. It’s gone beyond the item of clothing.
The Court: I don’t know what he is doing.
Mr. Morgan: Now, wait a minute.
The Court: I have already ruled.
By Mr. Morgan:
Q. Were you dressed properly for the inside of that bar?
The Court: Hold it, one second.
The Witness: Yes.
The Court: Hold it. I have ruled.
By Mr. Morgan:
Q. How do you know?
The Court: I want you to stop now. What’s the matter with you?
Mr. Morgan: She answered something.
The Court: I am the judge here. Now, you continue, I am going to have you arrested.
Mr. Morgan: Go ahead and have me arrested. What are you threatening me for? I want a mistrial. Take me to jail and let’s go with it. I want my mistrial. You don’t talk to me like this. It’s not going to happen.
The Court: Mr. Morgan?
Mr. Morgan: No, I am not going to be talked to like that, by you or anyone else, when I’m defending somebody in a felony case. It’s not going to happen.
The Court: You are out of line. I don’t want to hear anything further, here.
Mr. Morgan: Well, I move for a mistrial.
The Court: What you want to do?
Mr. Morgan: You are prejudice [sic].
The Court: And you are obnoxious.
Mr. Morgan: So what?
The Court: You can’t be obnoxious in a courtroom to a judge.
Mr. Morgan: You are obnoxious to me.
The Court: I don’t want to talk with you any further. You are not going to get me excited, sir.

Based on the facts above, the referee found Morgan violated rules 4-3.5(c) (conduct intended to disrupt tribunal) and 4-8.4(d) (conduct prejudicial to the administration of justice) of the Rules Regulating the Florida Bar. He further found several aggravating factors, including prior disciplinary offenses, a pattern of misconduct, a refusal to acknowledge the wrongful nature of his conduct, and substantial experience in the practice of law. Morgan has been disciplined twice before for similar misconduct. The first time he was publicly reprimanded for making several intemperate or derogatory remarks to and about the judiciary in 1995 and 1996. See Fla. Bar v. Morgan, 717 So.2d 540 (Fla.1998). The second time he was suspended for ten days for making statements that he knew were false or with reckless disregard of their truth or falsity about the qualifications or integrity of a judge in January 2000. He was also ordered to complete the Bar’s ethics school. See Fla. Bar v. Morgan, 791 So.2d 1103 (Fla.2001).

In mitigation, the instant referee considered Morgan’s character and reputation, noting that Morgan has provided pro bono legal services, has served as a role model for an assistant state attorney, and is perceived by two judges and an attorney as an excellent and passionate advocate.

As to discipline, the referee recommended a ninety-one-day suspension, which would require Morgan to establish rehabilitation before he could return to the practice of law. Morgan petitioned for review, arguing that the recommended sanction is too severe.

Analysis

Because it is ultimately the Court’s responsibility to order the appropriate sanction, we review a referee’s recommendation as to discipline of an attorney more broadly than the referee’s findings of fact and recommendations as to guilt. Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003); Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, the Court generally will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003); Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Morgan points to the facts that the conduct occurred outside the presence of the jury and that the trial judge did not hold him in contempt or lodge a complaint against Morgan with the Bar. Morgan further argues that the referee gave insufficient weight to the mitigating evidence and too much weight to the aggravating evidence. He maintains his conduct was not as egregious as the conduct seen in cases where a ninety-one-day rehabilitative suspension was imposed.

Contrary to Morgan’s argument, a ninety-one-day suspension has a reasonable basis in existing case law and the standards. Standards 6.22 (providing that a suspension is appropriate for knowingly violating a court order or rule, causing injury or potential injury to a client or party) and 7.2 (providing that a suspension is appropriate for knowingly engaging in the violation of a professional duty, causing injury or potential injury to a client, the public, or the legal system), which the referee cited, support the imposition of a suspension. Standard 8.1 even supports disbarment. That standard provides that disbarment is the appropriate discipline when a lawyer “has been suspended for the same or similar misconduct, and intentionally engages in farther similar acts of misconduct.”

Morgan was disciplined twice before for similar misconduct. The first time, he was publicly reprimanded; the second time, he was suspended. See Fla. Bar v. Morgan, 791 So.2d 1103 (Fla.2001) (suspending Morgan for ten days followed by probation with conditions); Fla. Bar v. Morgan, 717 So.2d 540 (Fla.1998) (publicly reprimanding Morgan).

In determining the appropriate discipline, this Court considers prior misconduct and cumulative misconduct, and treats more severely cumulative misconduct than isolated misconduct.... Additionally, cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct.

Fla. Bar v. Vining, 761 So.2d 1044, 1048 (Fla.2000) (citations omitted); see also Fla. Bar v. Carlon, 820 So.2d 891, 899 (Fla. 2002). Thus, this is Morgan’s third time appearing before the Court for the same kind of misconduct. His repeated misconduct therefore warrants the next level of available discipline — a rehabilitative suspension. We also warn that if he appears before this Court once again for similar misconduct, we may find it necessary to apply standard 8.1 and disbar him.

The cases the Bar cites, Florida Bar v. Wasserman, 675 So.2d 103 (Fla.1996), and Florida Bar v. Price, 632 So.2d 69 (Fla.1994), also support the imposition of a ninety-one-day rehabilitative suspension. In Wasserman, we suspended an attorney for six months in each of two cases involving conduct evidencing disrespect toward the judiciary. The attorney in Wasserman had been publicly disciplined on three pri- or occasions. Further, the attorney there admitted his behavior was inappropriate, but nevertheless seemed to feel his conduct was justified by a heavy caseload or excused as theatrics.

Like the attorney in Wasserman, Morgan admits his conduct was inappropriate, but seems to believe it is his obligation as a zealous advocate to take a judge “to task” if he comes to believe he or his client is being treated unfairly.

Having found support for the referee’s recommendation in existing case law and the standards for lawyer discipline, we approve the recommendation.

Conclusion

Kayo Elwood Morgan is hereby suspended from the practice of law for ninety-one days and thereafter until he has shown proof of rehabilitation. The suspension will be effective thirty days from the filing of this opinion so that Morgan can close out his practice and protect the interests of existing clients. If Morgan notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Morgan shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Kayo Elwood Morgan in the amount of $2,117.77, for which sum let execution issue.

It is so ordered.

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

WELLS, J., specially concurs with an opinion.

WELLS, J.,

specially concurring.

I concur in the majority decision and the majority opinion. I write to emphasize my belief that the conduct by Mr. Morgan that is reflected in the transcript of the trial proceedings set out in the majority opinion is so detrimental to the administration of justice that lawyers who engage in it must be subject to rehabilitative suspension.

From my experience as a long-time litigator, I understand that there can be frustrations on the part of litigators in dealing with some judges in the processing and trial of cases. I understand that there can be heat-of-battle impulses to vent those frustrations, but I also recognize that we have processes through which lawyers’ frustrations with judges must be directed. Obviously, we have the constitutional right of appeal to deal with a judge’s legal errors. We have the Judicial Qualifications Commission, which is open to receive complaints from lawyers or their clients con-eerning any violation of the Code of Judicial Conduct. Finally, we have elections at the trial court level in which judges can be challenged.

What is absolutely not available to a lawyer, either out of frustration or as a trial tactic, are in-court acts which demonstrate or give the appearance of a lawyer’s disrespect for the judge in a case. Integral to our system of justice is respect for court judgments. The system can only function when all involved at the end of a case are committed to abiding by what has been finally judged. This requires that in a particular case that the judge who makes that judgment be treated with respect.

It is a Florida lawyer’s oath-sworn duty to respect and protect the courts. It is likewise a lawyer’s duty to make the court system work for the people of this state, who each one depend upon it in so many ways.

The conduct of Mr. Morgan was an anathema to a properly functioning court system. The lesson of this decision is that the Court will not allow lawyers who engage in this conduct to do it in Florida courts without facing substantial discipline.

      . The trial court judge’s name was not Glare.

      . Neither party challenges the referee’s findings of fact or recommendations as to guilt, which we approve without comment.

      . It does not appear from the transcript of the trial in which Mr. Morgan engaged in his conduct that the trial judge did anything which could have reasonably provoked Mr. Morgan's frustration and conduct.


author: PER CURIAM.

text:
    ADVISORY OPINION TO the ATTORNEY GENERAL re REFERENDA REQUIRED FOR ADOPTION AND AMENDMENT OF LOCAL GOVERNMENT COMPREHENSIVE LAND USE PLANS.
    No. SC06-161.
    Supreme Court of Florida.
    June 22, 2006.
    Rehearing Denied Sept. 7, 2006.
    Louis Hubener, Chief Deputy Solicitor General, Office of the Attorney General, Tallahassee, FL, for Petitioner.
    Ross Stafford Burnaman, Esquire, on behalf of Florida Hometown Democracy, Inc., Tallahassee, FL, as Sponsor.
    Harry Morrison, Jr., General Counsel and Rebecca A. O’Hara, Deputy General Counsel, Florida League of Cities, Inc., Tallahassee, FL, and Virginia Saunders Delegal, General Counsel, Florida Association of Counties, Inc., and Robert L. Na-bors of Nabors, Giblin and Nickerson, P.A., Tallahassee, FL, for Opponents.
   PER CURIAM.

The Attorney General petitions this Court for an advisory opinion regarding the validity of a proposed amendment to the Florida Constitution submitted by Florida Hometown Democracy, Inc. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const. For the reasons explained below, we conclude that the proposed amendment complies with the single-subject requirement of article XI, section 3 of the Florida Constitution, and that the ballot title and summary comply with section 101.161(1), Florida Statutes (2005). Accordingly, we approve the proposed amendment for placement on the ballot.

FACTS

In 2003, Florida Hometown Democracy, Inc., (the Sponsor) invoked the petition process of article XI, section 3 to propose a constitutional amendment through citizen initiative (the 2003 Proposed Amendment). This amendment would have required local governments to put a new comprehensive land-use plan or an amendment to an existing comprehensive land-use plan to a vote by referendum prior to adoption. The ballot title for the 2003 Proposed Amendment was “Referenda Required for Adoption and Amendment of Local Government Comprehensive Plan,” and the summary stated:

Public participation in local government comprehensive land use planning benefits Florida’s natural resources, scenic beauty and citizens. Establishes that before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, the proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body and notice. Provides definitions.

The full text of the 2003 Proposed Amendment stated:

BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT:
Article II, Section 7. Natural resources and scenic beauty of the Florida Constitution is amended to add the following subsection:
Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida’s natural resources and scenic beauty, and the long-term quality of life of Floridians. Therefore, before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body as provided by general law, and notice thereof in a local newspaper of general circulation. Notice and referendum will be as provided by general law. This amendment shall become effective immediately upon approval by the electors of Florida.

For purposes of this subsection:

1. “Local government” means a county or municipality.
2. “Local government comprehensive land use plan” means a plan to guide and control the future land development in an area under the jurisdiction of a local government.
3. “Local planning agency” means the agency of a local government that is responsible for the preparation of a comprehensive land use plan and plan amendments after public notice and hearings and for making recommendations to the governing body of the local government regarding the adoption or amendment of a comprehensive land use plan.
4. “Governing body” means the board of county commissioners of a county, the commission or council of a municipality, or the chief elected governing body of a county or municipality, however designated.

In March 2005, this Court issued an opinion holding that the 2003 Proposed Amendment could not be placed on the ballot. See Advisory Op. to the Att’y Gen. re Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 902 So.2d 763 (Fla.2005) (hereinafter Land Use Plans). We concluded that the 2003 Proposed Amendment complied with the single-subject requirement of article XI, section 3 because it “calls for only one discrete change in the established scheme of comprehensive land-use plans — the local government legislative process of enactment and amendment.” Id. at 768. However, we held that the first sentence of the ballot summary did not comply with section 101.161(1). See id. at 772. We concluded that this sentence did “nothing to explain the chief purpose of the proposed amendment, which is to require referenda on all local government comprehensive land-use plan adoptions or amendments,” and was misleading because it focused “the voter on ‘scenic beauty’ and ‘natural resources,’ while local comprehensive plans include multiple components, many of which do not involve strictly environmental or aesthetic considerations.” Id. at 771-72.

In 2005, the Sponsor again invoked the petition process of article XI, section 3 to propose the same constitutional amendment (the 2005 Proposed Amendment). The ballot title and text of the 2005 Proposed Amendment are identical to those of the 2003 Proposed Amendment. However, the first sentence of the ballot summary of the 2003 Proposed Amendment, which the Court found objectionable in Land Use Plans, has been removed. Thus, the 2005 ballot summary provides in full:

Establishes that before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, the proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body and notice. Provides definitions.

The 2005 Proposed Amendment is now before this Court for an advisory opinion to the Attorney General. The Sponsor has filed briefs in favor of the proposed amendment. The Florida League of Cities, the Florida Association of Counties, Inc., and the Florida School Boards Association have filed joint briefs in opposition to the proposed amendment.

ANALYSIS

In Land Use Plans, we set forth our standard and scope of review of proposed constitutional amendments. See 902 So.2d at 765. Briefly stated, our review is limited to two issues: “(1) whether the amendment violates the single-subject requirement of article XI, section 3, Florida Constitution, and (2) whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes (2003).” Id. (quoting Advisory Op. to Att’y Gen. re Repeal of High Speed Rail Amendment, 880 So.2d 624, 625 (Fla.2004)). We address these issues separately below.

1. Single-Subject Requirement

As we explained in Land Use Plans, “[t]he single-subject requirement serves two purposes. It prevents an amendment from (1) engaging in logrolling or (2) substantially altering or performing the functions of multiple branches of government.” 902 So.2d at 766. We previously ruled that the 2003 Proposed Amendment “neither constitutes logrolling nor substantially alters or performs the functions of multiple branches of government.” Id. at 769-70.

The opponents argue that due to the 2005 amendments to chapter 163, Florida Statutes, the 2005 Proposed Amendment would alter the functions of school boards and substantially affect the ability of school boards and the Legislature to comply with article XI, section 1 of the Florida Constitution. Specifically, the opponents assert that because school board decisions relating to school siting must now be fully integrated with municipal and county comprehensive plans, the proposed amendment will alter the duty of school boards to plan for and construct public school facilities. We disagree.

The constitutional requirements on class size and the constitutional mandate that there be adequate provision for a system of free public schools do not require that the Legislature and school boards construct new schools. As this Court noted in approving the class size amendment, “[a]l-though, as a result of the amendment, the Legislature may choose to fund the building of new schools to achieve the maximum classroom size set as a goal of the proposed amendment, this is not the only method of ensuring that the number of students meets the numbers set forth in the amendment.” Advisory Op. to the Att’y Gen. re Florida’s Amendment to Reduce Class Size, 816 So.2d 580, 584 (Fla.2002). Also, the 2005 Proposed Amendment will not alter school boards’ constitutional duties to “operate, control and supervise all free public schools ... and determine the rate of school district taxes.” Art. IX, § 4(b), Fla. Const.

More importantly, as we observed in Land Use Plans,

the statutory scheme already in place allows local governments to utilize a referendum process in regard to a plan amendment if the amendment affects more than five parcels of land. See § 163.3167(12), Fla. Stat. (2004) (“An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.”). Thus, this initiative would mandate a process already approved by the Legislature in certain instances. Although the initiative would override section 163.3167(12) with respect to plan amendments that affect five or fewer parcels, the nullification of an existing statutory provision does not in and of itself establish a single-subject violation.

902 So.2d at 769 (emphasis supplied). Section 163.3167(12) was not amended during the 2005 legislative session. We find no basis for altering our previous conclusion in Land Use Plans that this proposed amendment complies with the single-subject requirement of article XI, section 3 of the Florida Constitution.

2. Ballot Title and Summary

As we explained in Land Use Plans, section 101.161(1) “requires that the ballot title and summary for a proposed constitutional amendment state in clear and unambiguous language the chief purpose of the measure. This is so that the voter will have notice of the issue contained in the amendment, will not be misled as to its purpose, and can cast an intelligent and informed ballot.” 902 So.2d at 770 (quoting In re Advisory Op. to the Att’y Gen.—Save Our Everglades, 636 So.2d 1336, 1341 (Fla.1994)).

In Land Use Plans, we concluded that the ballot summary of the 2003 Proposed Amendment was misleading because the first sentence of the summary was an editorial comment that focused on public participation benefiting “Florida’s natural resources” and “scenic beauty,” while local government comprehensive land-use plans include a “broad range of subject matters.” 902 So.2d at 772. We did not identify any flaws with the remaining two sentences. Further, we found that the ballot title “fairly inform[ed] the voter of the chief purpose of the amendment and [was] not misleading.” Id. at 770.

The Sponsor has removed the objectionable sentence from the 2005 Proposed Amendment. Nonetheless, the opponents now assert that the terms “local government,” “comprehensive land use plan,” and “local planning agency” used in the ballot title and summary are ambiguous and therefore misleading. Although this case is not a true adversarial proceeding, the doctrines of law of the case and res judica-ta are aptly applied in this context.

Under the doctrine of law of the case, “questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” See Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). This doctrine may also “foreclose subsequent consideration of issues implicitly addressed ... by the appellate court’s decision.” Id. at 106.

The opponents of the 2003 Proposed Amendment argued that the phrase “local government comprehensive land use plans” was misleading. We did not address this argument in Land Use Plans. However, because our opinions addressing citizen initiatives are intended to enable proponents to remedy any flaws in the ballot language, the fact that we found only the first sentence of the ballot summary defective indicates that we implicitly rejected other challenges to the ballot summary. To hold otherwise would allow serial attacks on a proposed amendment, thwarting a proponent’s efforts indefinitely.

Res judicata bars the litigation of issues that were raised or could have been raised in a prior proceeding between the same parties. See id. at 105. (“[T]he doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised in the first case.”). All alleged deficiencies with the terms in the ballot title and summary should have been raised in the first case in which we considered this proposed amendment. Allowing piecemeal attacks on a proposed amendment would not only be fundamentally unfair to the proponent of an amendment, it would be a misuse of the process for approval of citizen initiatives. Cf. Juliano, 801 So.2d at 105 (“[T]he doctrine of res judicata provides finality to judgments, predictability to litigants, and stability to judicial decisions.”).

In any event, we find the opponents’ current attacks on the ballot title and summary meritless. Advisory Opinion to the Attorney General re People’s Property Rights Amendments, 699 So.2d 1304 (Fla.1997), cited by the opponents to support their position, is distinguishable. In that case, we concluded that the ballot title and summary of a proposed amendment that would have “require[d] full compensation to be paid to the property owner when the government restricts use of private real property causing a loss in the fair market value,” id. at 1306, was misleading because several key terms were not defined. Id. at 1308-09 & n. 2.

In this case, all the terms alleged to be misleading are defined in the text of the initiative. Although some of the definitions are different from those provided in the “Local Government Comprehensive Planning and Land Development Regulation Act,” sections 163.3161, 163.3164-163.3217, Florida Statutes (2005), they are not misleading.

The Act does not provide a descriptive definition of a “comprehensive plan,” but instead defines the term as “a plan that meets the requirements of ss. 163.3177 and 163.3178.” § 163.3164(4), Fla. Stat. (2005). However, the Act further provides that one of its stated purposes is to “utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development.” § 163.3161(2), Fla. Stat. (2005) (emphasis supplied). Section 163.3167(1) of the Act provides that local governments “shall have the power and responsibility: (a) To plan for their future development and growth, (b) To adopt and amend comprehensive plans ... to guide their future development and growth." (Emphasis supplied.) This language is consistent with the definition of “local government comprehensive land use plan” provided in the text of the 2005 Proposed Amendment, which is “a plan to guide and control the future land development in an area under the jurisdiction of a local government.”

The 2005 Proposed Amendment defines a “local planning agency” as “the agency of a local government that is responsible for the preparation of a comprehensive land use plan and plan amendments after public notice and hearings and for making recommendations to the governing body of the local government regarding the adoption or amendment of a comprehensive land use plan.” (Emphasis supplied.) Section 163.3164(14), Florida Statutes (2005), defines “local planning agency” as “the agency designated to prepare the comprehensive plan or plan amendments required by this act.” (Emphasis supplied.) Although these definitions are not identical, they both clearly refer to the entity that is responsible for the preparation of the comprehensive plan or plan amendments. We conclude that the ballot title and summary sufficiently explain the chief purpose of the 2005 Proposed Amendment and do not mislead the public.

CONCLUSION

We hold that the 2005 Proposed Amendment complies with the single-subject requirement of article XI, section 3 of the Florida Constitution, and that the ballot title and summary comply with section 101.161(1). Accordingly, we approve the 2005 Proposed Amendment for placement on the ballot.

It is so ordered.

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

      . In 2005, the Legislature amended several provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, sections 163.3161, 163.3164-163.3217, Florida Statutes, that deal with public schools. See ch.2005-290, §§ 1-8, Laws of Fla. Prior to these amendments, local governments had the option of including in their comprehensive plans a public school facilities element to implement a school concurrency program. See § 163.3177(12), Fla. Stat. (2004) ("A public school facilities element adopted to implement a school concurrency program shall meet the requirements of this subsection.”). Public school facilities elements are now required. See § 163.3177(12), Fla. Stat. (2005) ("Each county and each municipality within the county, unless exempt or subject to a waiver, must adopt a public school facilities element that is consistent with those adopted by the other local governments within the county....”). All local governments must now also execute public school interlocal agreements. See § 163.3177(6)(h)(4)(a), Fla. Stat. (2005) ("Local governments must execute an interlocal agreement with the district school board, the county, and nonexempt municipalities pursuant to s. 163.31777.”). The adoption of the public school facilities element and the required updates to public school interlocal agreements must be complete by December 1, 2008. See § 163.3177(12)(i), Fla. Stat. (2005). In addition, schools are now included on the list of infrastructure subject to the concurrency requirement on a statewide basis. See § 163.3180(l)(a), Fla. Stat. (2005).

      . See art. IX, § 1, Fla. Const.

      . "Local Government” is defined the same in both the 2005 Proposed Amendment and the Act as a "county or municipality.” See § 163.3164(13), Fla. Stat. (2005).


text:
    Samuel A. COPPOLA, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2442.
    Supreme Court of Florida.
    June 22, 2006.
    Rehearing Denied Sept. 6, 2006.
    Christine R. Davis of Carlton Fields, P.A., Tallahassee, FL, and John R. Blue of Carlton Fields, P.A., St. Petersburg, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review Coppola v. State, 795 So.2d 258 (Fla. 5th DCA 2001), which expressly and directly conflicts with the decisions in Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000), and Jenkins v. State, 771 So.2d 37 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We hold that our decision in Heggs v. State, 759 So.2d 620 (Fla.2000), does not constitute “newly discovered evidence” for purposes of Florida Rule of Criminal Procedure 3.850(b)(2); and because of his negotiated plea, we conclude that Coppola is barred from seeking relief under Heggs.

FACTS AND PROCEDURAL HISTORY

Samuel A. Coppola was indicted for first-degree murder and conspiracy to commit murder for crimes that occurred on March 19, 1997. On July 27, 1998, Coppola pled guilty to second-degree murder and conspiracy to commit murder. He was sentenced to thirty-five years for the second-degree murder charge and thirty years for the conspiracy charge, with the sentences to run concurrently.

On June 27, 2000, Coppola filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In this motion, Coppola alleged that his negotiated plea was for a sentence within the 1995 sentencing guidelines that were declared unconstitutional in Heggs. Coppola requested that he be resentenced under the correct guidelines. The trial court denied Coppola’s motion, and the Fifth District affirmed in a per curiam order without opinion but citing legal authority. See Coppola v. State, 771 So.2d 1177 (Fla. 5th DCA 2000) (table report of unpublished order).

On April 10, 2001, Coppola filed a pro se motion for postconviction relief pursuant to rule 8.850. In this motion, Coppola argued that his plea was not entered voluntarily because he entered the plea based on statements by his counsel that he would be sentenced “somewhere in the middle” of the 1995 sentencing guidelines. Coppola contended that his counsel showed him the sentencing guidelines scoresheet and explained where his points fell in relation to the sentence he would receive. Coppola alleged that he had little choice but to enter the plea because his sentence fell within the guidelines, but had he known that the guidelines were invalid, he would not have entered the plea. Based on these allegations, Coppola requested that the trial court vacate and set aside his judgment and sentence so that he could be resen-tenced under legal sentencing guidelines.

The trial court denied Coppola’s rule 3.850 motion, ruling that the motion was untimely. The trial court also ruled that Coppola’s claims were procedurally barred because the claims could have been raised on direct appeal. Finally, the trial court ruled that the record demonstrated that Coppola’s plea was voluntarily entered and was not conditional or dependent upon the guidelines.

Coppola filed a pro se motion for rehearing, arguing that he should have two years from the date of the Heggs decision to raise a Heggs challenge. He argued that his rule 3.850 motion was timely because the motion was filed within two years of Heggs. The trial court denied Coppola’s motion for rehearing.

Coppola appealed the trial court’s order to the Fifth District Court of Appeal. According to the Fifth District, “[a] determination of the timeliness of Coppola’s motion is dependent upon our determination as to whether the decision in Heggs is to be applied retroactively.” See Coppola, 795 So.2d at 259. The Fifth ■ District adopted the reasoning of the First District in Regan v. State, 787 So.2d 265 (Fla. 1st DCA 2001), and held that Heggs does not constitute newly discovered evidence and it does not apply retroactively. Coppola, 795 So.2d at 259-60. The Fifth District also noted that even if Coppola’s claim was timely filed, he would not be entitled to relief because he was not sentenced pursuant to a guidelines sentence, but was sentenced pursuant to a negotiated plea. See id. at 260 n. 2.

Coppola filed a notice to invoke the jurisdiction of this Court based on conflict between the decision below and Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000), and Jenkins v. State, 771 So.2d 37 (Fla. 4th DCA 2000). This Court entered an order staying consideration of this case pending disposition of Banks v. State, 887 So.2d 1191 (Fla.2004). Thereafter, this Court accepted jurisdiction of the case.

ANALYSIS

In Heggs, we held that chapter 95-184, Laws of Florida, containing the sentencing guidelines and provisions addressing domestic violence injunctions, was unconstitutional because it violated the Florida Constitution’s single-subject rule. Heggs, 759 So.2d at 627; see also art. Ill, § 6, Fla. Const. Subsequent to our decision in Heggs, we explained which individuals would have standing to bring a challenge based on Heggs and defined the window period for challenging the constitutionality of the 1995 sentencing guidelines. See Trapp v. State, 760 So.2d 924, 928 (Fla.2000) (holding that the window for relief under Heggs was limited to those who committed their offenses between October 1,1995, and May 24,1997).

In Latiif v. State, 787 So.2d 834 (Fla.2001), we explained that “[generally, the relief granted to those entitled to it under Heggs is automatic resentencing under the guidelines in effect prior to the 1995 guidelines.” Id. at 836. In Latiif, the defendant’s sentence was based on a plea that had been negotiated with the State. Id. at 835. The State dropped the main offense from a first-degree felony to a lesser included second-degree felony. Id. at 836. The defendant was sentenced pursuant to the 1995 sentencing guidelines and his sentence constituted an upward departure under the 1994 guidelines. Id. However, we concluded that the defendant was not entitled to automatic resentencing. Id. at 837. We held that in situations where the State has made a concession as part of the exchange for a negotiated plea, the State has the option of electing to have the defendant resentenced under the 1994 guidelines or proceeding to trial on the original charges. Id.

In Banks, we were again confronted with a defendant seeking relief pursuant to Heggs. In that case, we stated that “under Heggs, if a sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that defendant is not entitled to relief.” Banks, 887 So.2d at 1194. We concluded that because Banks’ sentence was valid under the 1994 guidelines, Banks had not raised a sufficient ground for postconviction relief. Id.

Currently, the district courts of appeal are in conflict concerning how to apply Heggs in specific circumstances. Initially, there is a conflict over whether the two-year time limit for filing a 3.850 motion requesting relief based on Heggs starts to run from the date that a defendant’s judgment and sentence became final or from the date that this Court released its Heggs decision. The Second and Fourth Districts have determined that individuals should be allowed to file Heggs-based claims within two years of the date of the Heggs decision “because the facts on which the claim is based could not have been known earlier.” Murphy, 773 So.2d at 1175; see also Jenkins, 771 So.2d at 38 (same as Murphy); Carvello v. State, 824 So.2d 202, 203 (Fla. 4th DCA 2002) (certifying conflict with Regan and Coppola), quashed sub nom. State v. Shiva, 894 So.2d 923 (Fla.2005). In contrast, the First and Fifth Districts have determined that our opinion in Heggs is not a “newly discovered fact” under rule 3.850(b)(1) because “the rule contemplates a fact in the sense of evidence which is anything which tends to prove or disprove a material fact”; and therefore, this exception to the two-year filing requirement does not apply to Wepps-based claims. Regan, 787 So.2d at 267; see also Coppola, 795 So.2d at 259 (adopting the reasoning of Regan). Furthermore, the First and Fifth Districts have determined that Heggs should not be applied retroactively. See Regan, 787 So.2d at 268; Coppola, 795 So.2d at 260.

I. Newly Discovered Fact

Florida' Rule of Criminal Procedure 3.850 requires that a motion filed pursuant to this section must be filed within two years of the date that the conviction and sentence become final. This rule provides three exceptions to the two-year time limit, the first of which is relevant to the analysis in the instant case. Rule 3.850(b)(1) provides an exception to the two-year time limitation when “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence.” As noted above, the district courts are divided as to whether the change of law created by the Heggs decision is a “fact” as contemplated by rule 3.850(b)(1).

In Regan, the First District held that the change of law announced in the Heggs decision was not a newly discovered fact under rule 3.850(b)(1) because the change in law was not a “fact” as contemplated by the rule. Regan, 787 So.2d at 267. Furthermore, the court noted that if the change of law announced in Heggs is “a ‘fact’ as contemplated by rule 3.850(b)(1), then it follows that every change in the law will also necessarily become a fact as per this rule, and will remove entirely any need to perform a Witt [v. State, 387 So.2d 922 (Fla.1980) ] analysis.” Regan, 787 So.2d at 267. The court concluded that the change of law announced in Heggs did not have a tendency to prove or disprove guilt or innocence, but only affected sentencing once guilt had been established. Id.

In contrast, the Fourth District has held that a defendant should have two years from the Heggs decision to file a rule 3.850 motion because “the facts on which his claim is predicated could not have been known earlier.” Jenkins, 771 So.2d at 38; see also Carvello 824 So.2d at 203 (stating defendants have two years from the issuance of Heggs to raise a claim in a 3.850 motion); Cox v. State, 805 So.2d 1042, 1044 (Fla. 4th DCA 2002) (holding the two-year limitations period for defendant’s motion for postconviction relief started to run when Heggs decision was issued), quashed sub nom. State v. Shiva, 894 So.2d 923 (Fla.2005). The Second District adopted the reasoning of Jenkins to hold that a defendant should have two years from the issuance of Heggs to file a claim. Murphy, 773 So.2d at 1175.

We conclude that the First District’s observation that every decision could be viewed as a fact, which would erase the need for an analysis pursuant to Witt, has merit. In examining the effect of changes in decisional law on final judgments under rule 3.850, this Court has consistently applied the Witt analysis to determine whether the decisional change in the law requires retroactive application. This Court has never examined whether a decisional change of law could constitute a newly discovered fact for purposes of rule 3.850(b)(1). See State v. Glenn, 558 So.2d 4, 6 (Fla.1990) (citing McCuiston v. State, 534 So.2d 1144, 1146 (Fla.1988)) (“[A]ny determination of whether a change in the law requires retroactive application should be decided upon traditional principles pertaining to changes in decisional law as set forth in Witt.”). Rather, this Court’s decisions have applied the stringent Witt standard to determine whether the decisional change in law was of such constitutional and fundamental significance that it required retroactive application. Further, the term “fact” refers to evidence that tends to prove or disprove guilt or innocence. See Jones v. State, 591 So.2d 911, 915 (Fla.1991) (holding that in order to be entitled to relief under rule 3.850, the defendant must proffer “newly discovered evidence [that is] of such nature that it would probably produce an acquittal on retrial”). Therefore, we hold that that our decision in Heggs is not a newly discovered fact under rule 3.850(b)(1).

II. The Plea Agreement

Coppola argues that because he received a guidelines sentence and not a sentence for a specific term of years, he is entitled to relief under Heggs. The trial court denied this claim in both Coppola’s rule 3.800 motion and his rule 3.850 motion. In its order denying defendant’s motion to correct illegal sentence dated August 21, 2000, the trial court stated that Coppola “is not entitled to have his sentence reduced pursuant to rule 3.800 motion because he pled guilty to a reduced charge and negotiated for the specific sentence of thirty five (35) years incarceration.” State v. Coppola, No. 97-274-CF (Fla. 5th Cir.Ct. Aug. 15, 2000), aff'd, 771 So.2d 1177 (Fla. 5th DCA 2000). In its order on defendant’s motion for postcon-viction relief, the trial court came to the same result on May 11, 2001, stating, “This Court has examined this issue before and found that the defendant’s plea was not conditional or applicable to guidelines. And the Court finds the same now.” The trial court denied Coppola’s 3.850 motion without an evidentiary hearing on this issue. On appeal, the Fifth District stated that Coppola “would not be entitled to receive Heggs relief because, as the trial court found, Coppola was not sentenced pursuant to a guidelines sentence, but rather, pursuant to a negotiated plea for a specific sentence.” Coppola, 795 So.2d at 260 n. 2 (citing Parker v. State, 767 So.2d 532 (Fla. 5th DCA 2000)). We agree.

In Latiif, we recognized that a guidelines sentence may be imposed pursuant to a negotiated plea. See 787 So.2d at 837. We noted that if a defendant is entitled to relief under Heggs, there are two possible remedies: (1) the inmate can be resen-tenced under lawful guidelines, or (2) the State can withdraw the plea and reinstate the charges. See id. However, the facts of the instant case are different from those in Latiif.

Here, Coppola did not negotiate a plea for a guidelines sentence. This is apparent because first-degree murder, the crime for which Coppola was originally charged, did not fall under the scope of the sentencing guidelines. Instead, it was a charge that carried a sentence of death or life imprisonment. See § 782.04(l)(b), Fla. Stat. (1997). Seeking to avoid the death penalty or life in prison, Coppola made an offer to the State that he would plead guilty to second-degree murder with the condition that he would be sentenced to only thirty-two years. The State made a counteroffer that Coppola would be sentenced to a term of thirty-five years. Coppola agreed and pled guilty to second-degree murder and conspiracy to commit murder. He received thirty-five years for the second-degree murder charge and thirty years for conspiracy, with the sentences running concurrently.

Furthermore, there is no evidence in the record to suggest that the sentencing guidelines were ever used in the proposal by Coppola or the counter-proposal by the State. In fact, the plea form states the exact amount of time, thirty-five years, to be served. Moreover, a review of the plea hearing transcript shows that the sentencing guidelines were never mentioned. As the trial court noted in its denial of Coppola’s motion for postconviction relief, although a copy of the sentencing guidelines form was included with the uniform commitment to custody document submitted to the Department of Corrections at the time of sentencing, this does not mean they were used during the plea negotiations. Instead, attaching the guidelines to the uniform commitment to custody document is a customary practice of the clerk’s office. Coppola alleges that he discussed the sentencing guidelines when he consulted with his attorney and that the plea agreement contained a recommended range for his sentence under the guidelines. While this may be true, this is insufficient to establish that Coppola received a guidelines sentence. Cf Latiif, 787 So.2d at 836-37 (finding that the defendant received a guidelines sentence because in the plea agreement the State agreed to recommend a guidelines sentence if the defendant agreed to plead guilty to a lesser charge). Unlike the factual scenario in La-tiif, the sentencing guidelines were not a part of the quid pro quo during the plea negotiations. Therefore, we find that the record affirmatively refutes Coppola’s claim and demonstrates that Coppola’s plea was for a specific term of years rather than a plea based upon the validity of the guidelines.

Because Coppola’s original charge of first-degree murder did not fall under the sentencing guidelines and because the record demonstrates that he pled for a specific term of years, we hold that Coppola is not entitled to any relief under Heggs.

CONCLUSION

We conclude that Heggs does not constitute a newly discovered fact for purposes of rule 3.850(b)(1); and Coppola is barred from seeking relief under Heggs because of his negotiated plea.

The decision of the district court of appeal affirming the denial of postconvietion relief is approved.

It is so ordered.

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

      . See, e.g., Hughes v. State, 901 So.2d 837, 846 (Fla.2005) (holding that the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply retroactively under Witt); Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (concluding that the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not satisfy the Witt standard for retroactive application); State v. Klayman, 835 So.2d 248, 254 (Fla.2002) (deciding that the decision in Hayes v. State, 750 So.2d 1 (Fla.1999), applied retroactively under Witt analysis); Ferguson v. State, 789 So.2d 306, 312 (Fla.2001) (holding that the rule of law announced Carter v. State, 706 So.2d 873 (Fla.1997), applied retroactively under Witt standard); State v. Stevens, 714 So.2d 347, 348 (Fla.1998) (determining that State v. Iacovone, 660 So.2d 1371 (Fla.1995), applied retroactively under Witt analysis); State v. Callaway, 658 So.2d 983, 987 (Fla.1995) (concluding that Hale v. State, 630 So.2d 521 (Fla.1993), satisfies the Witt standard for retroactive application), receded from on other grounds, Dixon v. State, 730 So.2d 265 (Fla.1999); State v. Glenn, 558 So.2d 4, 8 (Fla.1990) (holding that Carawan v. State, 515 So.2d 161 (Fla.1987), could not be retroactively applied under Witt standard); McCuiston v. State, 534 So.2d 1144, 1146 (Fla.1988) (deciding that Whitehead v. State, 498 So.2d 863 (Fla.1986), could not be retroactively applied under Witt standard).