source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte Mark Allen JENKINS. (In re Mark Allen Jenkins v. State of Alabama).
    1031313.
    Supreme Court of Alabama.
    April 8, 2005.

      Joseph T. Flood, Rochester, New York, for petitioner.
    Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for respondent.
    Bryan A. Stevenson, Randall S. Suss-kind, and Angela L. Setzer, Montgomery, for amicus curiae Equal Justice Initiative of Alabama, in support of the petitioner.
   LYONS, Justice.

Mark Allen Jenkins was convicted in March 1991 of two counts of capital murder in the death of Tammy Hogeland, i.e., murder during a robbery in the first degree and murder during a kidnapping in the first degree. The jury recommended, by a vote of 10 to 2, that Jenkins be sentenced to death. The trial court followed its recommendation. On direct appeal, the Court of Criminal Appeals affirmed Jenkins’s convictions and sentence. See Jenkins v. State, 627 So.2d 1034 (Ala.Crim.App.1992), affd, 627 So.2d 1054 (Ala.1993).

Jenkins timely filed a postconviction petition pursuant to Rule 32, Ala. R.Crim. P., in May 1995. He filed an amended petition in April 1997, after the then applicable two-year period for filing set forth in Rule 32.2(c) had expired. After an evidentiary hearing, the trial court denied the petition. Jenkins appealed. The Court of Criminal Appeals affirmed the judgment denying postconviction relief. Jenkins v. State, 972 So.2d 111 (Ala.Crim.App.2004). Jenkins then petitioned this Court for certiorari review. We granted Jenkins’s petition to consider that aspect of the judgment of the Court of Criminal Appeals holding that a claim asserted in a Rule 32 petition is time-barred unless that claim satisfies the requirements for relation back, borrowed from Rule 15(c), Ala. R. Civ. P., and relates back to the date of the filing of the original Rule 32 petition. Jenkins argues that the Court of Criminal Appeals improperly applied principles taken from the Alabama Rules of Civil Procedure to the Alabama Rules of Criminal Procedure. We agree, and, as to that aspect of the Court of Criminal Appeals’ judgment, we reverse.

The Court of Criminal Appeals’ opinion states the following facts concerning the murder of Tammy Hogeland:

“At trial, the State’s evidence tended to show that on April 21, 1989, a truck driver discovered Tammy Hogeland’s nude body on the side of a highway near Birmingham, Alabama. Forensic tests showed that Hogeland died as a result of manual strangulation. Hogeland was last seen on April 18, 1989, at the Tenth Avenue Omelet Shoppe restaurant in Birmingham were she was working as a waitress. Some of the jewelry Hogeland had been wearing when she was last seen was missing when her body was discovered.
“At about 2:00 a.m. on April 18, 1989, a witness saw a red sports car, driven by Jenkins, enter the parking lot of the Omelet Shoppe. Sara Harris, an employee of the Omelet Shoppe, testified that she saw the victim drive off with Jenkins. Later that morning two witnesses saw Jenkins at a gasoline service station off 1-59. They said that a female was also in the car and that she appeared to be ‘passed out.’ These two witnesses left the service station and Jenkins also left the station and followed them on 1-59. They saw Jenkins pull off of 1-59 in an area near where Hoge-land’s body was later discovered.”

Jenkins v. State, 972 So.2d at 119-20 (footnote omitted).

Jenkins’s initial Rule 32 petition was timely filed. It raised claims of ineffective assistance of counsel and violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as well as other claims that were determined to be procedurally barred. Jenkins’s amended Rule 32 petition added a claim of juror misconduct: Jenkins alleged that a juror in his trial failed to disclose during voir dire that two of her close relatives had been brutally murdered. The juror testified at the Rule 32 hearing that her only nephew had been murdered before she qualified as a juror in Jenkins’s trial. Jenkins states that press accounts of that crime show that both the juror’s nephew and his wife were murdered execution-style. The trial court denied relief on the juror-misconduct claim on the ground that it could have been, but was not, raised on appeal.

The Court of Criminal Appeals noted that Jenkins’s juror-misconduct claim was raised for the first time in the amended petition, which was filed beyond the then two-year limitations period for filing a Rule 32 petition. Relying on Charest v. State, 854 So.2d 1102 (Ala.Crim.App.2002), the Court of Criminal Appeals held that the juror-misconduct claim presented in the amended petition would be considered timely only if it related back to a claim raised in the timely original petition; it concluded that Jenkins’s original petition had included “no claim even remotely related to the venire members’ failure to truthfully answer questions during voir dire examination.” 972 So.2d at 121. Because the limitations period in Rule 32.2(c), Ala. R.Crim. P., is mandatory and jurisdictional, the court said, the trial court could not consider a nonjurisdictional claim filed beyond the limitations period; therefore, the court held that Jenkins’s juror-misconduct claim was barred by the expiration of the limitations period of Rule 32.2(c).

In Charest v. State, the Court of Criminal Appeals employed an analysis of the relation-back doctrine drawn from Rule 15, Ala. R. Civ. P.:

“[T]he circuit court should have addressed only those claims raised in the first petition, which was timely filed on February 6, 1998, and any subsequently filed legitimate amendments to that [petition] that relate back to the original petition. See Rodopoulos v. Sam Piki Enters., Inc., 570 So.2d 661, 664 (Ala. 1990) (‘ “ ‘[W]here the amendment is merely a more definite statement, or refinement, of a cause of action set out in the original complaint, the amendment relates back to the original complaint in accordance with [Ala.] R. Civ. P. 15(c).’ ” ’) (quoting McCollough v. Warfield, 523 So.2d 374 (Ala.1988), and quoted with approval in Garrett v. State, 644 So.2d 977, 980 (Ala.Crim.App.1994)).”

854 So.2d at 1104. In Garrett v. State, 644 So.2d 977 (Ala.Crim.App.1994), the only case we have found in which the Court of Criminal Appeals applied the relation-back doctrine before it did so in Charest, the court held that a petitioner who had filed a Rule 32 petition that was not in the proper form should be allowed to amend his petition to comply with the requirements of Rule 32, and that his amended petition would relate back to the filing of the original petition and thus would not be barred by the limitations period of Rule 32.2(c). The court stated in Garrett: “Although the cases [discussing the relation-back doctrine] in the preceding paragraph concerned the construction and application of a specific rule of the Alabama Rules of Civil Procedure, we find the relation-back principle addressed in those cases applicable to the situation presented in this case.” 644 So.2d at 981.

Jenkins argues that Rule 32.7(b), Ala. R.Crim. P., permits an amendment to a Rule 32 petition without incorporating the limitations of the doctrine of relation back. Rule 32.7(b) states: “Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.” Furthermore, Jenkins notes that Rule 32.7(d) provides: “Leave to amend shall be freely granted.” Jenkins maintains that the wording of Rule 32.7 clearly indicates that the relation-back doctrine should not impede a petitioner’s ability to file an amendment to a Rule 32 petition that asserts claims that were not raised in the original petition. Jenkins also points to Rule 32.4, which provides that Rule 32 proceedings “shall be governed by the Rules of Criminal Procedure.” (Emphasis added.) If Rule 32 proceedings are governed by the Rules of Criminal Procedure, Jenkins argues, then principles taken from the Rules of Civil Procedure do not apply in Rule 32 proceedings.

The State argues in its brief to this Court that the Court of Criminal Appeals, in analyzing Jenkins’s juror-misconduct claim under the relation-back doctrine, “followed a long line of state and federal precedent that has analogized to the relation-back principles of Rule [15, Ala. R. Civ. P.,] in determining whether amendments to Rule 32 petitions are appropriate.” The only Alabama criminal cases the State cites, however, are Charest and Garrett. The State is correct that most federal courts apply the relation-back principles of Rule 15(c), Fed.R.Civ.P., to habeas corpus proceedings. See, e.g., Davenport v. United States, 217 F.3d 1341 (11th Cir.2000). The State’s reliance on federal precedent is misplaced, however, because federal habeas corpus proceedings are considered civil cases, and, consequently, it is appropriate to apply the Federal Rules of Civil Procedure to those cases. See, e.g., Fama v. Commissioner of Correctional Seros., 235 F.3d 804 (2d Cir.2000). See also Rule 11, Rules Governing § 2254 Cases (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” (Emphasis added.)) Although, as previously noted, Rule 32 postconviction proceedings in Alabama are considered civil in nature, Rule 32.4 specifically mandates that Rule 32 proceedings are governed by the Rules of Criminal Procedure. As Justice Stuart explained in her dissent in Ex parte Hutcherson, 847 So.2d 386, 389 (Ala.2002) (Stuart, J., dissenting):

“[W]hile a Rule 32 proceeding for post-conviction relief is considered to be civil in nature, such a proceeding is distinct from a typical civil case. Rule 32, Ala. R.Crim. P., provides a defendant a method by which to seek postconviction relief; therefore, the rights to be accorded a defendant during a Rule 32 proceeding and the procedures pursuant to which such a proceeding is conducted are based upon the rule and caselaw.”

847 So.2d at 389-90 (citation omitted).

This Court recently examined the principles applicable to the amendment of Rule 32 petitions in Ex parte Rhone, 900 So.2d 455 (Ala.2004). In Rhone, the petitioner moved to amend his Rule 32 petition 16 days after the trial court had received the original petition. In denying the petition, the trial court addressed only the claims in the original petition. The Court of Criminal Appeals affirmed the denial, holding that the trial court had not exceeded its discretion in failing to address the claims in the amendment to Rhone’s petition because “Rhone failed to meet his initial burden of showing diligence in filing the amendment or that the facts underlying the amendment were unknown to him before filing his original petition.” Rhone v. State, 900 So.2d 443, 448 (Ala.Crim.App.2004). This Court granted certiorari review to consider Rhone’s contention that the Court of Criminal Appeals’ decision conflicted with the well-established principle stated by this Court in Ex parte Allen, 825 So.2d 271, 273 (Ala.2002), that although “[ljeave to amend a Rule 32 petition is within the discretion of the trial court, ... it should be freely granted.”

In considering the nature of the factors that would provide a proper basis upon which a trial court could exercise the discretion to disallow an amendment to a Rule 32 petition, this Court stated in Ex parte Rhone that “it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.” 900 So.2d at 458. We concluded in Rhone that the Court of Criminal Appeals erred in imposing upon a Rule 32 petitioner an “initial burden” to show diligence in filing the amendment or that the facts underlying that amendment were unknown when the original petition was filed. We stated: “Such a burden is clearly inconsistent with the mandate of this Court, as expressed in both its decisions and in Rule 32, that leave to amend should be freely granted.” 900 So.2d at 458-59.

This Court also responded in Ex parte Rhone to the Court of Criminal Appeals’ statement that the only alternative to its holding in Rhone v. State would be “‘to allow a petitioner the unfettered right to amend his Rule 32 petition.’ ” 900 So.2d at 459. We responded:

“That statement, however, is not correct. The right to amend is limited by the trial court’s discretion to refuse an amendment based upon factors such as undue delay or undue prejudice to the opposing party. That limitation is, in this Court’s opinion, sufficient to protect the rights of the parties, while allowing the trial court sufficient control over the management of its docket.”

900 So.2d at 459. The State makes a similar argument in its brief in this case. If we do not apply the doctrine of relation back to Rule 32 proceedings, the State argues, “the result would be piecemeal, unpredictable litigation and effective obliteration of the limitation period in Rule 32.2(c).” The State further argues:

“A convict could file a simple, one-claim Rule 32 petition, days after his conviction has become final, and then repeatedly amend the petition to add entirely new claims for as long as it takes the trial court to reach final judgment.”

As we held in Ex parte Rhone, however, a petitioner does not have the unfettered right to file endless amendments to a Rule 32 petition. The right to amend is limited by the trial court’s discretion to refuse to allow an amendment if the trial court finds that the petitioner has unduly delayed filing the amendment or that an amendment unduly prejudices the State. Such an exercise of the trial court’s discretion would certainly be appropriate, for example, if, on the eve of an evidentiary hearing, a Rule 32 petitioner filed an amendment that included new claims of which the State had no prior notice and as to which it was not prepared to defend.

We emphasize that the concepts of “undue delay” and “undue prejudice” as discussed in this opinion and in Ex parte Rhone apply to the trial court’s management of its docket and to the petitioner’s attention to his or her case. Those concepts cannot be applied to restrict the petitioner’s right to file an amendment clearly provided for in Rule 32.7 simply because it states a new claim that was not included in the original petition.

The United States Supreme Court has made it clear that neither the Eighth Amendment nor the Due Process Clause of the United States Constitution requires states to appoint counsel for inmates, including death-row inmates, who seek post-conviction relief in state courts. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). See also Mayes v. State, 563 So.2d 38 (Ala.Crim.App.1990). Because most Rule 32 petitioners file their petitions without the assistance of legal counsel, they could encounter serious problems if the relation-back doctrine was applied to Rule 32 petitions.

The Alabama Rules of Criminal Procedure permit a trial court to appoint counsel to represent an indigent petitioner in a postconviction proceeding if it “appears that counsel is necessary to assert or protect the rights of the petitioner.” Rule 32.7(c), Ala. R.Crim. P. Such an appointment occurs only after a petition has been filed. Therefore, inmates who are unable to find counsel to represent them before the limitations period for filing a Rule 32 petition expires, including inmates who are mentally ill, illiterate, or mentally retarded, must determine the date by which they must file their Rule 32 petition and prepare and file a petition in the proper form with the proper claims in the proper court. In 2002, this Court amended Rule 32, Ala. R.Crim. P., to reduce the limitations period for filing a Rule 32 petition from two years to one year. Because most Rule 32 petitioners are imprisoned, those petitions are often based on a preliminary and restricted investigation of the claims asserted. Furthermore, an incarcerated inmate who does not have legal counsel is obviously hampered in his or her ability to interview witnesses, to gather records, to investigate factual questions, and to conduct legal research. A strict application of the doctrine of relation back to prohibit reasonable amendments to Rule 32 petitions could exacerbate these problems.

Given the direction in the Alabama Rules of Criminal Procedure that amendments to Rule 32 petitions are to be allowed at any time before the trial court enters a judgment, Rule 32.7(b), and that leave to amend is to be freely granted, Rule 32.7(d), we conclude that a restriction on a Rule 32 petitioner’s right to file an amendment by applying principles found in the Alabama Rules of Civil Procedure, such as the relation-back doctrine, should be the subject of careful consideration by the Standing Committee on the Alabama Rules of Criminal Procedure. We decline to rewrite the Rules of Criminal Procedure by sanctioning the incorporation of the relation-back doctrine into those rules when nothing of that nature presently appears in them.

To the extent that the following cases applied the relation-back doctrine to proceedings governed by Rule 32, Ala. R.Crim. P., we overrule those cases: Harris v. State, 947 So.2d 1079 (Ala.Crim.App.2004); McWilliams v. State, 897 So.2d 437 (Ala.Crim.App.2004); Giles v. State, 906 So.2d 963 (Ala.Crim.App.2004); Ex parte Mack, 894 So.2d 764 (Ala.Crim.App.2003); DeBruce v. State, 890 So.2d 1068 (Ala.Crim.App.2003); Charest v. State, 854 So.2d 1102 (Ala.Crim.App.2002); and Garrett v. State, 644 So.2d 977 (Ala.Crim.App. 1994).

We reverse the judgment of the Court of Criminal Appeals insofar as it held that Jenkins’s claim of juror misconduct, presented for the first time in his amended petition, could not be considered because it did not relate back to his original petition, and we remand the cause for further proceedings consistent with this opinion. We affirm the judgment of the Court of Criminal Appeals insofar as it affirmed the trial court’s denial of the other claims presented in Jenkins’s Rule 32 petition.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . Rule 32.2(c), Ala. R.Crim. P., was amended effective August 1, 2002, to provide that in the case of a conviction appealed to the Court of Criminal Appeals a petitioner now has one year from the date on which that court issues its certificate of judgment in which to file a Rule 32 petition.

      . We note that in Ex parte Nesbitt, 850 So.2d 228 (Ala.2002), this Court quoted from Garrett v. State and held that under the circumstances presented in Nesbitt, a Rule 32 petition that was "refiled” was a valid amendment to a timely filed Rule 32 petition. We stated in Nesbitt: “As a valid amended, or ‘continued,’ petition, obviously accepted by the trial court as such, Nesbitt’s October 27, 2000, Rule 32 petition related back to his timely filed 1998 petition.” 850 So.2d at 231. We did not address in Nesbitt the merits of the question whether the relation-back doctrine was appropriately applied to Rule 32 proceedings.


author: PER CURIAM.

text:
    Mark Allen JENKINS v. STATE of Alabama.
    CR-97-0864.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied April 14, 2006.
    Certiorari Denied May 18, 2007 Alabama Supreme Court 1050972.

      Joseph T. Flood, Manassas, Virginia, for appellant.
    Troy King and William H. Pryor, Jr., attys. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

PER CURIAM.

Mark Allen Jenkins appealed the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim.P., attacking his capital-murder conviction and his sentence of death. We affirmed the circuit court’s denial of Jenkins’s Rule 32 petition. See Jenkins v. State, 972 So.2d 111 (Ala.Crim.App.2004). Jenkins filed a petition for a writ of certio-rari in the Alabama Supreme Court. The Supreme Court affirmed our judgment in all aspects except our holding regarding the juror-misconduct claim. See Ex parte Jenkins, 972 So.2d 159 (Ala.2005). The Supreme Court held that the relation-back doctrine did not apply to Rule 32 petitions; therefore, the juror-misconduct claim was properly before the circuit court even though the amended petition raising the claim was filed outside the limitations period of Rule 32. The Supreme Court remanded the case for further consideration in light of its holding that the relation-back doctrine did not apply to Rule 32 petitions.

We have diligently reviewed the record of the Rule 32 proceedings. In his amended Rule 32 petition filed on December 2, 1996, Jenkins alleged that juror misconduct deprived him of an impartial jury and his right to strike a petit jury from a panel of fair-minded jurors. Jenkins alleged:

“During voir dire at Mr. Jenkins’s trial, trial counsel spent considerable time asking prospective jurors whether they or any close friend or relative had ever been the victim of crime. Specifically, trial counsel asked each panel of the venire the following questions: (1) Is there anyone on this panel who has ever been a victim of crime?; and (2) Does anyone know of any other of your close relatives, or a very good friend who has ever been the victim of any crime? Although this question was asked to each panel, some jurors failed to answer the question even [though they] or their friends or relatives had previously been victimized.”

(R. 385-86.)

The circuit court held an evidentiary hearing on December 10, 1996, and on January 20, 1997. At the evidentiary hearing juror L.V. testified that in 1971, 20 years before Jenkins was tried, her nephew had been murdered. She also said that she did not want to serve on Jenkins’s jury and if she had heard a question related to whether she had had a relative who had been the victim of a crime she would have responded to the question.

In January 1997 the State filed a response to the amended Rule 32 petition, which was filed eight days before the evi-dentiary hearing. The State asserted that the juror-misconduct claim was procedurally barred because it could have been raised at trial or on appeal. The State asserted the following:

“This claim is barred from review because it could have been raised at trial but was not. Rule 32.2(a)(3) of the Alabama Rules of Criminal Procedure and the prior ease law contained in paragraph 7(a) of this answer provide that relief cannot be given on a claim which could have been but was not raised at trial.
“This claim is barred from review because it could have been raised on appeal but was not. Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure and the prior case law contained in paragraph 8(b) of this answer provide that relief cannot be given on a claim which could have been but was not raised on appeal.”

(Supplemental record vol. I, p. 129.) In April 1997, the State also filed an amended motion for partial dismissal of the Rule 32 petition. The State then filed a proposed memorandum denying the Rule 32 petition. In each of these filings the State alleged that the juror-misconduct claim was proeedurally barred because it could have been raised at trial or on appeal.

Jenkins filed a response to the State’s assertions that this claim was barred. He stated: “After filing his petition for post-conviction relief but prior to the evidentia-ry hearing in this case, Mr. Jenkins obtained new evidence suggesting that [L.V.] had a close relative who had been murdered.” (Supplemental record, vol. Ill, p. 402.)

In December 1997, the circuit court issued a 79-page order denying the Rule 32 petition. In this order the circuit court found that Jenkins’s juror-misconduct claim was proeedurally barred in the Rule 32 proceedings according to Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P.

The Alabama Supreme Court in Ex parte Pierce, 851 So.2d 606 (Ala.2000), recognized that a juror-misconduct claim may be proeedurally barred in a Rule 32 petition. The Supreme Court stated: “Although Rule 32.1(e) [newly discovered evidence] does not preclude [the petitioner’s] claim, Rule 32.2(a)(3) and (5) would preclude [the petitioner’s] claim if it could have been raised at trial or on appeal.” 851 So.2d at 614.

Here, the State asserted that this claim was proeedurally barred based on Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P. Rule 32.3, Ala.R.Crim.P., states:

“The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”

(Emphasis added.) “Preponderance of the evidence” is defined as:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Black’s Law Dictionary 1220 (8th ed.2004).

Jenkins submitted no evidence indicating why this claim was raised in the Rule 32 petition and not in earlier proceedings. Jenkins’s attorney offered no explanation at the Rule 32 hearing. The only reference in the record concerning the lateness of raising this claim is the following statement contained in a response filed by Jenkins: “After filing his petition for postcon-viction relief but prior to the evidentiary hearing in this case, Mr. Jenkins obtained new evidence suggesting that [L.V.] had a close relative who had been murdered.” (Supplemental record, vol. Ill, p. 402.) The Alabama Supreme Court in Pierce, stated that in order for a juror-misconduct claim to be cognizable in a Rule 32 proceeding the petitioner must establish “that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” Pierce, 851 So.2d at 616. Jenkins failed to meet his burden under Rule 32.3, Ala.R.Crim.P.

This Court has held that the procedural default grounds contained in Rule 32 apply to all cases, even to those in which the death penalty has been imposed. See Burgess v. State, 962 So.2d 272 (Ala.Crim.App.2005); Hooks v. State, 822 So.2d 476 (Ala.Crim.App.2000); Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995); State v. Tarver, 629 So.2d 14 (Ala.Crim.App.1993). We have previously barred juror-misconduct claims in Rule 32 petitions attacking a capital-murder conviction and death sentence. See Duncan v. State, 925 So.2d 245 (Ala.Crim.App.2005); Woods v. State, 957 So.2d 492 (Ala.Crim.App.2004). Compare McGahee v. State, 885 So.2d 191, 203 (Ala.Crim.App.2003) (held that claim of juror misconduct was not procedurally barred because “[tjrial counsel testified at the Rule 32 hearing that the trial court had denied his request for funds to hire an investigator, and that, if he had been able to hire an investigator, he would have been able to obtain information on the venire-members. Counsel stated that obtaining information on the venire ‘was virtually an impossibility to do.... ’ ”).

In the order denying the Rule 32 petition the circuit court found that the claim of juror misconduct was procedurally barred because it was not raised at trial or on direct appeal. See Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P. The circuit court’s ruling is supported by the record. There is no evidence that the circuit court abused its discretion in finding that this claim was procedurally barred. See Elliott v. State, 601 So.2d 1118 (Ala.Crim.App.1992).

AFFIRMED.

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


text:
    STATE of Florida, Petitioner, v. Frank PIACITELLI, Respondent.
    No. SC07-878.
    Supreme Court of Florida.
    Nov. 8, 2007.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Melynda L. Melear, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.
    Frank Piaeitelli, Pro se, South Bay, FL, for Respondent.
   PER CURIAM.

We have for review Piaeitelli v. State, 960 So.2d 13 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal certified conflict with Reeves v. State, 920 So.2d 724 (Fla. 5th DCA 2006), approved, 957 So.2d 625 (Fla.2007), cert, denied, — U.S. -, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). At the time the Fourth District issued its decision in Piaeitelli, Reeves was pending review in this Court. We have jurisdiction. See art V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending disposition of Reeves. After Reeves was decided, we issued an order directing respondent to show cause why we should not exercise jurisdiction, quash the Piaeitelli decision, and remand for reconsideration in light of our decision in Reeves. Upon considering respondent’s response, we have determined to do so.

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

It is so ordered.

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


text:
    Andrzej MADURA, Petitioner, v. FULL SPECTRUM LENDING, INC., et al., Respondents.
    No. SC06-999.
    Supreme Court of Florida.
    Dec. 6, 2007.
    Andrzej Madura, pro se, Bradenton, FL, for Petitioner.
    William P. Heller and Kimberly A. Leary of Akerman Senterfitt, Fort Laud-erdale, FL, for Respondents.
   PER CURIAM.

We initially accepted jurisdiction to review the unpublished order of the Second District Court of Appeal dismissing Madu-ra’s petition for writ of certiorari in Madura v. Full Spectrum Lending, Inc., 926 So.2d 1283 (Fla. 2d DCA 2006). Review was initially granted based on alleged express and direct conflict with Hall v. Wojechowski, 312 So.2d 204 (Fla. 4th DCA 1975). Upon further consideration, we have determined that we should exercise our discretion to discharge jurisdiction in this cause. Accordingly, jurisdiction is discharged and this review proceeding is hereby dismissed.

It is so ordered.

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

LEWIS, C.J., dissents.


author: PER CURIAM. PARIENTE, J.,

text:
    Jeffrey WOODARD, et al., Petitioners, v. JUPITER CHRISTIAN SCHOOL, et al., Respondents.
    No. SC05-1986.
    Supreme Court of Florida.
    Dec. 6, 2007.
    William W. Booth and Michelle Hankey of Legal Aid Society of Palm Beach County, Inc., Juvenile Advocacy Project, West Palm Beach, FL, for Petitioners.
    John L. Bryan, Jr. of Scott, Harris, Bryan, Barra, and Jorgensen, P.A., Palm Beach Gardens, FL, for Respondents.
    Robert S. Glazier, Miami, Florida, on behalf of the Academy of Florida Trial Lawyers; and Bernard P. Perlmutter and Kele S. Williams of University of Miami School of Law, Children and Youth Law Clinic, Coral Gables, FL, Siobhan Helene Shea, Palm Beach, FL, and Joseph J. Ward of Holland and Knight, LLP, West Palm Beach, FL, on behalf of Florida’s Children First, Inc., as Amicus Curiae.
   PER CURIAM.

This case is before the Court because the district court certified a question to be of great public importance. Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 4th DCA 2005). We have discretionary jurisdiction. See art. V, § 3(b)(4), Fla. Const. However, upon review we have concluded that jurisdiction should be discharged. Accordingly, we dismiss review.

It is so ordered.

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

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

PARIENTE, J.,

dissenting.

I respectfully dissent. The majority’s decision to discharge jurisdiction in this case leaves intact the Fourth District’s application of the impact rule as a bar to Woodard’s recovery. Discharging jurisdiction in this case not only continues to muddy the waters surrounding the impact rule but leaves untouched a district court opinion that is, in my view, at odds with this Court’s decisions in Gracey v. Faker, 837 So.2d 348 (Fla.2002), and Florida Department of Corrections v. Abril, 969 So.2d 201 (Fla.2007).

It should come as no surprise that I disagree with the Fourth District majority because, as I have stated in each and every impact rule case that has been certified to this Court in the past several years, I believe the impact rule should be abolished. See Willis v. Garni Golden Glades, LLC, 967 So.2d 846, 868 (Fla.2007) (Par-iente, J., concurring); Abril, 969 So.2d at 208 (Pariente, J., concurring); Rowell v. Holt, 850 So.2d 474, 482-84 (Fla.2003) (Pariente, J., specially concurring); Gracey, 837 So.2d at 359 (Pariente, J., concurring). As I have explained, the impact rule reflects a skepticism about damages resulting from psychological injuries that does not exist for physical injuries. See Rowell, 850 So.2d at 483 (Pariente, J., specially concurring). Yet, psychological trauma can cause harm to an individual that is equal to or greater than physical injury. Like physical injury, the results of psychological trauma can endure for a fife-time.

Even with the impact rule, this case is substantially similar to others where we have recognized exceptions to the impact rule. Woodard’s claim in this case is for emotional distress resulting from the school chaplain’s breach of confidentiality. In Kush v. Lloyd, 616 So.2d 415, 422 (Fla.1992), we recognized that the impact rule is “inapplicable to recognized torts in which damages often are predominately emotional, such as ... invasion of privacy.” (Emphases supplied.) We reiterated this statement in Gracey and held that the impact rule did not bar a claim for emotional distress resulting from a psychotherapist’s breach of confidentiality because

[t]he emotional distress that the Gra-ceys allege they have suffered is at least equal to that typically suffered by the victim of a defamation or an invasion of privacy. Indeed, we can envision few occurrences more likely to result in emotional distress than having one’s psychotherapist reveal without authorization or justification the most confidential details of one’s fife.

837 So.2d at 356. Most recently, in Abril, we relied on Gracey to hold that the impact rule does not bar a cause of action for a breach of confidentiality in negligently disclosing the results of HIV testing. Abril, 969 So.2d at 207.

In my view, the alleged emotional distress caused by the breach of confidentiality in this case is indistinguishable from that alleged in Gracey and Abril. In fact, the circumstances of this case make it an even more compelling one for not applying the impact rule. In this case, Woodard alleged that the school chaplain’s objective was to “minister to high school teenagers” and “not only be a teacher to them, but also one whom they can trust and approach without fear and intimidation.” The plaintiff was a senior when the chaplain was directed to meet with him so he could be questioned and counseled about his sexual orientation. According to the allegations in the complaint, the chaplain assured him that their conversation was confidential. Only after receiving that assurance did Woodard reveal he was homosexual. The chaplain relayed this information to school administrators, who disclosed the information to others. Woodard was subsequently expelled from school. The complaint alleged that as a result of the disclosure, Woodard was berated by the press and the president of the school, and shunned by his schoolmates.

The emotional distress Woodard allegedly suffered as. a result of the school chaplain’s breach of confidentiality “is at least equal to that typically suffered by the victim of a defamation or an invasion of privacy.” Gracey, 837 So.2d at 356. Like Gra- cey and Abril, this is a case “in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Rowell, 850 So.2d at 478. By concluding that the impact rule does not bar recovery in certain cases and then deciding to leave intact a district court decision that is contrary to that precedent, the Court, in my view, is continuing to generate uncertainty in the law. As Justice Cantero recently observed, the number of certified questions from the district courts regarding the impact rule’s application or continued viability is evidence of the confusion our jurisprudence has created. See Willis, 967 So.2d at 876-77 (Cantero, J., dissenting). I believe that the Court’s inconsistent application of the impact rule and its decision today to discharge jurisdiction will serve only to further the confusion and unpredictability that exists in our impact law jurisprudence. For all these reasons, I must dissent.

ANSTEAD, J., concurs.

      . There is another wrinkle in this case and that is whether a valid underlying cause of action exists. We have certainly declined to answer certified questions where there is a question as to whether a valid underlying cause of action exists, but in those cases we have explained our reasoning. See, e.g., S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 320 (Fla.2005) (declining to answer certified question "because it presuppose[d] the existence of an otherwise viable cause of action”). In this case, the Fourth District’s decision concludes that the impact rule bars recovery and therefore, at least implicitly, recognizes that a cause of action exists-one for breach of the clergyman privilege under section 90.505(l)(a), Florida Statutes (2004). I disagree with the Fourth District to the extent it recognized a cause of action for a breach of the evidentiary privilege contained in section 90.505(l)(a). However, I believe that Woodard has alleged a valid cause of action for breach of a common law fiduciary duty. If the failure to state a cause of action is the reason for the discharge, the majority opinion should so state.


text:
    THE FLORIDA BAR, Complainant, v. Ronald Leon BLOOM, Respondent.
    No. SC06-1025.
    Supreme Court of Florida.
    Dec. 13, 2007.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, and James N. Watson, Jr., Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Scott K. Tozian and Gwendolyn H. Hin-kle of Smith, Tozian and Hinkle, P.A., Tampa, Florida, and James W. Radloff of Radloff and Radloff, P.A., Jacksonville, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Ronald Leon Bloom be found guilty of professional misconduct and disbarred. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we disapprove the recommendation that Bloom be found guilty of violating Rules Regulating the Florida Bar 5 — 1.2(b) and (c), but approve the remainder of the referee’s report and disbar Bloom.

BACKGROUND

On April 10, 2006, based on the conduct at issue here, this Court suspended Bloom on an emergency basis under rule 3-5.2 of the Rules Regulating the Florida Bar. Fla. Bar v. Bloom, 929 So.2d 1054 (Fla.2006) (table). Subsequently, on June 1, 2006, the Bar filed a six-count complaint alleging that Bloom engaged in egregious misconduct over a two-year period. Following a formal hearing at which Bloom admitted most of the conduct alleged in the complaint, the referee filed a report making findings of fact and recommendations of guilt and discipline. These factual findings and recommendations are summarized as follows.

Count I

In August 2005, Bloom obtained monetary advances from Cybersettle Financial Services (CFS), assigning to CFS, in return, his rights to attorney fees in two cases. Later, when Bloom received the fees, he converted the funds to his own use instead of forwarding the assigned fees to CFS as agreed. In addition, Bloom obtained unsecured loans for thousands of dollars from three clients and failed to prepare settlement statements in four cases.

For this conduct, the referee recommends that Bloom be found guilty of violating Rules Regulating the Florida Bar 4-1.3 (failing to act with reasonable diligence or promptness in representation); 4-1.4(a) (failing to keep a client reasonably informed); 4-1.4(b) (failing to explain a matter so the client can make informed decisions); 4-1.5(a)(2) (obtaining or seeking clearly excessive fee); 4-1.5(e) (failing to communicate the rate of fee or costs to a client); 4-1.15 (failing to comply with the trust account rules); 4-4.1 (making a false statement of material fact or law to a third person); 4-8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer); 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a)(1) (failing to hold funds of clients or third persons in a trust account or commingling these funds with the lawyer’s own funds); 5-1.1(b) (failing to use money held in trust for its designated purpose); 5-l.l(e) (failing to promptly notify a client or third person upon receiving funds in which the client or third person has an interest, promptly deliver such funds, or promptly render a full accounting upon request); 5-1.2(b) (failing to maintain a separate trust account or trust account records); and 5-1.2(c) (failing to follow trust accounting procedures).

Count II

In May 2004, Bloom’s client, Terry Bass, was repeatedly unsuccessful in attempts to contact Bloom. After Bass filed a complaint with the Bar, Bloom pressured Bass to withdraw the complaint, to no avail.

For this conduct, the referee recommends that Bloom be found guilty of violating rules 4-1.3 (diligence or promptness); 4-1.4(a) (keeping client informed); and 4-1.4(b) (explaining matters to client).

Count III

In June 2004, Bloom failed to attend several scheduled meetings with his client, Michael Heath, or with Heath’s doctor, which led Heath to file a complaint with the Bar. When the Bar wrote to Bloom for his response, Bloom failed to respond, although the Bar granted him two extensions of time.

For this conduct, the referee recommends that Bloom be found guilty of violating rules 4-1.3 (diligence or promptness); 4-1.4(a) (keeping client informed); 4-1.4(b) (explaining matters to client); and 4-8.4(g) (failing to respond in writing to an official inquiry).

Count IV

In February 2005, Bloom was arrested and charged with several criminal offenses, including driving while his license was suspended, canceled, or revoked, and felony possession of controlled substances (cocaine and Lorazepam). The prosecutor dismissed the charges after Bloom enrolled in a rehabilitation program. Bloom returned to using cocaine shortly after the charges were dismissed.

For this conduct, the referee recommends that Bloom be found guilty of violating rules 4-8.4(b) (criminal act reflecting adversely on fitness as a lawyer) and 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation).

Count V

In July 2004, Bloom went to the office of opposing counsel in one of his cases to demand a settlement check and was turned away. While leaving the building, he stole two paintings from the reception area. When opposing counsel’s office manager called to confront him, Bloom denied taking the artwork. However, he admitted the theft and returned the artwork after he was informed that he had been caught on -videotape by security cameras.

For this conduct, the referee recommends that Bloom be found guilty of violating rules 4-1.3 (diligence or promptness); 4-1.5(b) (charging an excessive fee); 4-1.8(a) (engaging in prohibited business transactions with a client); 4-8.4(b) (criminal act reflecting adversely on fitness as a lawyer); and 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation).

Count VI

In December 2005, Bloom received a $35,000 settlement check for client Mark Colbert. Instead of depositing the check into his trust account, Bloom asked Colbert, in January 2006, to meet him at an Ace Check Express (Ace) to cash the check, telling Colbert that he did not have a trust account. Bloom told the Ace employees that one of his employees had forged his name to some trust account checks and depleted the account. Neither story was true. After Colbert endorsed the check, Bloom cashed it and gave Colbert $20,000 of the $30,750 (less costs) Colbert was due. Bloom told Colbert he had to wait for the check to clear before he could give Colbert the remainder, which was also untrue. Colbert’s subsequent attempts to obtain the rest of his money from Bloom were unsuccessful. Bloom still owed Colbert $7000 at the time of the hearing.

For this conduct, the referee recommends that Bloom be found guilty of violating rules 4-1.3 (diligence or promptness); 4-1.4(a) (keeping client informed); 4-1.4(b) (explaining matters to client); 4-1.5(b) (excessive fee or costs); 4^1.8(a) (business transactions with client); and 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation).

Additional Facts

Bloom has a twenty-year history of chronic cocaine use that began to spiral out of control in 2004, seriously impacting his representation of clients. Over the years, he participated in rehabilitation programs and monitoring contracts with Florida Lawyers Assistance, Inc. (FLA). Though Bloom achieved short-term sobriety while in a program, he always relapsed soon after he completed treatment. The referee found Bloom’s addiction was “the product of his chosen lifestyle and not one derived from a collateral event or source (i.e. prescription drug medication as a result of an injury).” The referee also found Bloom’s testimony concerning his conduct and addiction “alarmingly scary,” citing the theft of the paintings as an example. Shortly before his emergency suspension, Bloom checked himself into a long-term rehabilitation program. At the time of the formal hearing, Bloom was a resident of the halfway house affiliated with the program.

Meyer Cohen, FLA’s Executive Director, testified that Bloom had several addiction contracts with FLA over the years, but as mentioned earlier, he always relapsed soon after a contract ended. Bloom signed his penultimate contract with FLA after his arrest in February 2005. He left the program in April 2005 after relapsing soon after the criminal charges were dismissed. According to Cohen, Bloom contacted FLA again in March 2006, had been in frequent contact, and appeared genuine about his recovery. Cohen and other witnesses agreed that Bloom could become an asset to the Bar if he were rehabilitated.

The referee found four aggravating factors (substantial experience in the practice of law; dishonest or selfish motive; systematic and calculated pattern of misconduct; and multiple offenses) and two mitigating factors (remorse and interim rehabilitation).

As to the sanction, the referee recommended that Bloom be disbarred and ordered to reimburse the Bar’s costs. Bloom petitioned for review and challenges (1) the recommendations that he be found guilty of violating rules 5 — 1.2(b) and (c); (2) the referee’s failure to find several additional mitigating factors; and (3) the recommendation of disbarment.

ANALYSIS

Neither party challenges the referee’s findings of fact; therefore, we approve those findings without additional discussion. However, Bloom does claim that the referee erred in recommending that he be found guilty of violating rules 5 — 1.2(b) and (c) because the Bar abandoned the allegations supporting these violations. The Bar concedes this point, and we disapprove this recommendation of guilt. We approve the remaining recommendations of guilt without discussion.

We next turn to the mitigating factors. Bloom argues the referee erred in not finding four additional mitigating, factors, including: (1) timely, good-faith efforts to make restitution; (2) full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings, based largely on Bloom’s admissions of fact at the beginning of the formal hearing; (3) character or reputation; and (4) disability or impairment.

A referee’s findings as to whether certain mitigating factors apply are presumptively correct and upheld unless clearly erroneous or without support in the record. Fla. Bar v. Arcia, 848 So.2d 296 (Fla.2003); Fla. Bar v. Morse, 784 So.2d 414, 415-16 (Fla.2001). There is competent, substantial evidence in the record to support the referee’s rejection of the mitigating factor of timely, good-faith efforts to make restitution. At the time of the hearing, Bloom still owed CFS over $60,000 and one client at least $7000. Similarly, Bloom’s failure to respond to the Bar’s letter of inquiry concerning the Heath complaint supports the referee’s rejection of the mitigating factor of cooperation with the disciplinary process.

The referee’s rejection of the mitigating factor of character and reputation was justified by the fact that Bloom’s reputation and character evidence was not un-qualifiedly positive. Bloom’s witnesses testified that Bloom could be an asset to the profession if he were fully rehabilitated. In light of Bloom’s lengthy history of drug abuse, rehabilitation, and relapse, these qualifications significantly impact the weight of this testimony.

The referee’s rejection of the mitigating factor of disability or impairment is also supported. The referee specifically found Bloom’s addiction arose from a lifestyle choice and was of long duration. Although Bloom completed rehabilitation programs and broke free of the immediate grip of the addiction several times, his recovery was always short-lived. Further, there was evidence that Bloom used rehabilitation programs and promises to rehabilitate himself merely to avoid the negative consequences of his conduct. Most importantly, Bloom practiced law and represented clients throughout this period of drug abuse. This sufficiently supports the referee’s rejection of the mitigating factor of a physical or mental disability.

Florida Bar v. Rosen, 495 So.2d 180,181 (Fla.1986), is not in conflict. In Rosen, we recognized that “loss of control due to addiction may properly be considered as a mitigating circumstance in order to reach a just conclusion as to the discipline to be properly imposed.” However, whether an addiction is a mitigating factor is based upon the circumstances of the individual case, as indicated by our use of the word “may” instead of “should” or “must.”

We next review the recommendation of discipline. Here, our scope of review is broader than that afforded to the factual findings because it is ultimately our responsibility to order the appropriate sanction. Fla. Bar v. Broumstein, ■ 953 So.2d 502, 510 (Fla.2007). Although our review is broad, we generally will not second-guess the referee’s recommended discipline if it has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. Id.

Bloom’s misconduct was egregious. Bloom misappropriated over $60,000 held in trust for CFS and inappropriately borrowed thousands of dollars from his own clients. He removed artwork from the building of an opposing counsel, denying having done so until he learned of the security camera videotape. He was charged with possession of cocaine, as well as driving with a suspended license.

Under both the Florida Standards for Imposing Lawyer Sanctions and existing caselaw, disbarment is the presumptively appropriate sanction when a lawyer intentionally misappropriates trust funds. Brownstein, 953 So.2d at 510. Indeed, the overwhelming majority of cases involving the misuse of funds held in trust have resulted in disbarment, Fla. Bar v. Spear, 887 So.2d 1242, 1247 (Fla.2004), regardless of mitigation. Fla. Bar v. Shanzer, 572 So.2d 1382 (Fla.1991).

The facts here are similar to those in Florida Bar v. Brownstein, 953 So.2d 502 (Fla.2007); Florida Bar v. Shuminer, 567 So.2d 430 (Fla.1990); and Florida Bar v. Knowles, 500 So.2d 140 (Fla.1986). In Brownstein, we disapproved the recommendation of a three-year suspension and disbarred an attorney for misappropriating trust account funds and other misconduct despite evidence he suffered from clinical depression. Critically, the attorney did not seek medical care until after the Bar’s investigation began.

In Shuminer, we disapproved the referee’s recommendation of an eighteen-month suspension and disbarred the attorney for misappropriating trust account funds despite evidence of alcohol and cocaine addictions and other mitigation. The attorney, who continued to practice law despite his addiction, entered an unconditional guilty plea to the charges brought by the Bar. There, despite mitigating evidence more extensive than that found here, we determined that disbarment was appropriate, stating: “Shuminer has failed to establish that his addictions rose to a sufficient level of impairment to outweigh the seriousness of his offenses.” 567 So.2d at 432; see also Knowles, 500 So.2d at 142 (disbarring attorney for misappropriating trust funds). Like Shuminer, Bloom also failed to establish that his addictions rose to a sufficient level of impairment to outweigh the seriousness of his offenses.

To summarize, we approve the referee’s findings and recommendations, except for the recommendations that Bloom be found guilty of violating rules 5 — 1.2(b) and (c).

CONCLUSION

In light of the above, Ronald Leon Bloom is hereby disbarred, effective, nunc pro tunc, May 10, 2006, the date his emergency suspension took effect. Because Bloom has been suspended since May 10, 2006, it is unnecessary to provide him with thirty days to close out his practice of law to protect the interests of existing clients.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Ronald Leon Bloom in the amount of $10,587.65, for which sum let execution issue.

It is so ordered.

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

      . At the time of the hearing before the referee, Bloom still owed CFS over $60,000 in misappropriated funds.


text:
    John D. MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1264.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2006.
    Rehearing Denied Jan. 16, 2008.
    John D. Morrow, pro se, Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that his sentence is illegal. Because the trial court improperly ruled that neither Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), nor Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403 (2004), apply to the appellant’s case, we reverse and remand for resentencing or for record attachments conclusively refuting the appellant’s claim.

Following a jury trial, the appellant was convicted and sentenced for second-degree murder, a lesser-included offense, and was sentenced to a departure sentence of life imprisonment based on the cruel, heinous, and atrocious manner of the crime as well as the appellant’s complete lack of passion and remorse. The appellant argues that his departure sentence violates his Sixth Amendment right to a jury as explained in Apprendi and Blakely.

The trial court incorrectly ruled that the appellant’s sentence was final when Apprendi was decided. A conviction is final after appellate proceedings have concluded and mandate issues. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). As the state concedes, Apprendi applies to the instant case because Apprendi was decided on June 26, 2000, and the instant case did not become final until December 21, 2000, when mandate issued. Blakely likewise applies to the appellant because Blakely was a clarification of Apprendi See Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005). But see Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005)(certifying conflict with Isaac); Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005)(same); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005)(same). Thus, the appellant’s maximum sentence is limited to the length “a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” Blakely, 124 S.Ct. at 2537, and a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Ap-prendi. See Isaac, 911 So.2d at 815.

As to the appellant’s facial challenge to the 1983 sentencing guidelines, this argument is without merit because the provision which allows the trial court to depart from the scoresheet ranges is permissive instead of mandatory. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 759, 160 L.Ed.2d 621 (2005).

We therefore affirm in part and reverse in part the trial court’s summary denial of the appellant’s motion and remand to the trial court for resentencing or to refute the appellant’s Apprendi claim with record attachments.

REVERSED AND REMANDED.

VAN NORTWICK and HAWKES, JJ., concur; THOMAS, J., concurs in result only.


author: LAWSON, J.

text:
    LEESBURG COMMUNITY CANCER CENTER, etc., Appellant, v. LEESBURG REGIONAL MEDICAL CENTER, INC., etc., Appellee.
    No. 5D06-2457.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.
    Rehearing Denied Jan. 14, 2008.

      Monterey Campbell, Michael J. Bittman, and Dyana L. Petro, of Gray/Robinson, P.A., Orlando, and Steven L. Brannock and David C. Borucke, of Holland & Knight LLP, Tampa, and for Appellant.
    Phillip S. Smith, Matthew D. Black and John D. Metcalf, of McLin & Burnsed, Leesburg, for Appellee.
   LAWSON, J.

Leesburg Community Cancer Center, d/b/a Intercommunity Cancer Center, (“the Cancer Center”), appeals a final summary judgment in favor of Leesburg Regional Medical Center, Inc., (“Leesburg Regional”), claiming error in the trial court’s finding that the Cancer Center could not enforce a contract clause against Leesburg Regional. We agree with the trial court that the Cancer Center had no legal right to enforce the clause, and affirm.

Factual and Procedural Background

On December 31, 1985, Leesburg Regional entered a thirty-year ground lease with Leesburg Real Estate Associates, Inc., (“Real Estate Associates”), for the purpose of allowing Real Estate Associates to develop and operate an outpatient ambulatory cancer treatment center on the property. The lease contained an “exclusivity” clause prohibiting Leesburg Regional or Real Estate Associates from competing against one another by operating or supporting a competing cancer treatment center anywhere within Lees-burg Regional’s “primary service area” during the term of the lease. The lease also allowed Real Estate Associates to either assign all or part of its leasehold interest to another, or sublease all or part of the property to another, so long as its assignees or sublessees were made “subject to the terms and provisions of [the ground] lease.” In conjunction with this obligation, the ground lease contains a sentence requiring Real Estate Associates to incorporate the terms of the ground lease into any assignment or sublease that it entered.

On the same day that Real Estate Associates leased the land from Leesburg Regional, it sublet the property to the Cancer Center, a limited partnership formed by the shareholders of Real Estate Associates. From 1986 through 1998, the Cancer Center operated the treatment facility, paying rent to Real Estate Associates. Real Estate Associates made all lease payments to Leesburg Regional during this period, and the record reflects no disputes between the parties.

In July 1998, Leesburg Regional approached Real Estate Associates about waiving the exclusivity clause so that it could participate in a cancer treatment center in Lady Lake, Florida. When negotiations for a waiver were unsuccessful, Leesburg Regional proposed simply buying out the remainder of the lease term from Real Estate Associates. The parties were able to reach agreement on the buyout, and in September, 2000, Leesburg Regional purchased Real Estate Associates’ leasehold interest, along with its rights and obligations under the sublease with the Cancer Center, for $1.9 million. Leesburg Regional then took the position that the exclusivity clause was a personal covenant between it and Real Estate Associates, which it extinguished or controlled when it purchased back all of Real Estate Associates’ rights under the ground lease.

Given Leesburg Regional’s declared intent to participate in another cancer treatment facility, the Cancer Center filed an action for declaratory judgment to determine its rights under the ground lease and/or its sublease. The Cancer Center argues, alternatively, that: (1) its sublease constituted an assignment of Real Estate Associates’ rights under the ground lease, including the right to enforce the exclusivity clause; or (2) that language in the sublease “incorporating” all terms from the ground lease, by reference, granted it a contract right to enforce the ground lease against Leesburg Regional. Ultimately, the trial court entered summary judgment in favor of Leesburg Regional, finding that the Cancer Center had no contractual right to enforce the exclusivity clause. The trial court further found that the exclusivity clause constituted an unlawful restraint of trade, unenforceable under section 542.33, Florida Statutes (1985). The Cancer Center challenges both findings. Because we agree with the trial court’s contract analysis, we do not reach the restraint of trade argument.

Standard of Review

A de novo standard of review applies to a grant of summary judgment. E.g., Coberley v. Thor Indus., Inc., 908 So.2d 486 (Fla. 5th DCA 2005). The same standard applies to a trial court’s decision construing a contract. E.g., Mgmt Computer Controls, Inc. v. Charles Perry Const., Inc., 743 So.2d 627 (Fla. 1st DCA 1999).

Analysis

As a general rule, there is “no privity of contract or estate between [an] original lessor and [a] sublessee,” because there is no contractual relationship between the parties. 49 Am.Jur.2d Landlord and Tenant § 999 (2007). “Because of the lack of privity, the sublessee does not acquire, merely as a result of the sublease, any right to enforce the covenants or agreements of the lessor contained in the original lease.” Id.

The Cancer Center’s first argument against application of these basic principles is that its sublease actually constituted an assignment of the ground lease by Real Estate Associates. “An assignment is a transfer of all the interests and rights to the thing assigned.” Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2004) (citations omitted). Following an assignment, the assignee “stands in the shoes of the assignor” and the “assignor retains no rights to enforce the contract” at all. Id. Here, of course, Real Estate Associates continued to exercise its rights under the ground lease for fifteen years after subletting the premises to the Cancer Center, and then sold its leasehold interest to Leesburg Regional. More importantly, the sublease itself does not purport to assign Real Estate Associates’ leasehold interest to the Cancer Center. Rather, it expressly states that “this Lease constitutes a sub-lease.... ” The contract could not be any clearer, and the trial court properly rejected this argument.

Second, the Cancer Center argues that it obtained a right to directly enforce Real Estate Associates’ rights under the ground lease when all terms of the ground lease were incorporated, by reference, into its sublease. We start with the basic premise that no person or entity is bound by a contract absent the essential elements of offer and acceptance (its agreement to be bound to the contract terms), supported by consideration. Leesburg Regional was not a party to the sublease. Therefore, it is axiomatic that the sublease could not bind Leesburg Regional unless Leesburg Regional agreed in its original ground lease that the covenant it made not to compete against Real Estate Associates could also inure to the benefit of any sub-lessee of Real Estate Associates. Again, any such agreement would be contrary to the general rule that a sublessee has no “right to enforce the covenants or agreements of the lessor contained in the original lease.” 49 Am.Jur.2d Landlord and Tenant § 999 (2007).

Because the ground lease contains no express provision stating that Leesburg Regional agrees not to compete against any sublessee of Real Estate Associates, the Cancer Center is left with the argument that this promise is implied in the provision requiring Real Estate Associates to make any sublease “subject to the terms and provisions of [the ground] lease.” To us, this language simply means that any sublessee must agree to abide by all obligations of the ground lease. See Affinity Internet, Inc. v. Consolidated Credit Counseling Serv., Inc., 920 So.2d 1286, 1288 (Fla. 4th DCA 2006) (“The words ‘subject to’ ‘usually indicate a condition to one party’s duty of performance and not a promise by the other.’ ”) quoting Burgess Constr. Co. v. M. Morrin & Son Co., Inc., 526 F.2d 108, 113 (10th Cir.1975) (emphasis added). The language cannot be fairly read as an agreement to confer on a sub-lessee additional rights against the original lessor that would not normally be conferred in an ordinary transaction. Id. Taken in context, we read the requirement that Real Estate Associates incorporate terms of the ground lease into any sublease as a means of assuring that any sublessee would be made “subject to” the ground lease, and made fully aware of all its obligations under that contract.

If the parties had intended to create a non-compete covenant between Leesburg Regional and any sublessee of Real Estate Associates, they could have easily said so in the ground lease. They did not. And, courts should not interpret contracts in a manner that extends or enlarges the obligations of a contracting party beyond the plain meaning of the language used in the contract itself. See Marx v. Clear Channel Broadcasting, Inc., 887 So.2d 405 (Fla. 4th DCA 2004) (noting that non-compete agreements are not to be extended “further than [the] language of the contract absolutely requires”). We believe that the trial court properly applied these principles in construing the ground lease. Reviewing this matter de novo, we construe the contract exactly as the trial court did.

AFFIRMED.

PLEUS, J., and REINMAN, M., Associate Judge, concur.

      . Both parties appear to agree that the facility contemplated for Lady Lake wotdd fall within Leesburg Regional's "primary service area.”

      . The Cancer Center argues that this construction ignores economic realities, since it would not have been in its interest to agree to the deal without protection against future competition from Leesburg Regional. However, as originally structured, any additional protection for the Cancer Center would have been superfluous in light of the interlocking ownership of Real Estate Associates and the Cancer Center. In other words, the partners who owned the Cancer Center would not have needed to assure that they had an independent right (as the Cancer Center) to enforce the clause since they (as shareholders of Real Estate Associates) could enforce Lees-burg Regional's covenant not to compete against Real Estate Associates. Additionally, it is not the role of courts to supply terms to a contract in order to protect one of the parties from "an improvident bargain.” Bella Vista, Inc. v. Interior & Exterior Specialties Co., Inc., 436 So.2d 1107, 1108 (Fla. 4th DCA 1983) (citations omitted).


author: TORPY, J.

text:
    Corina CHRISTENSEN, Individually, etc., et al., Appellant, v. Everett C. COOPER, M.D., Coastal, etc., et al., Appellees.
    Nos. 5D06-390, 5D06-874.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Rehearing Denied Jan. 14, 2008.

      John A. Shipley of Searcy, Denney, Sca-rola, Barnhart & Shipley, P.A., and Edna L. Caruso, of Edna L. Caruso, P.A., West Palm Beach, for Appellants.
    Henry W. Jewett, II, and Robert H. Peterson of Rissman, Barrett, Hurt, Donahue & McLain, Orlando, for Appellees.
   TORPY, J.

In this medical malpractice action, Appellant, Corina Christensen, challenges the directed verdict in favor of Appellees, an emergency room doctor and his employer. The lower court concluded that Appellees’ alleged omissions were governed by the Good Samaritan Act (“the Act”) and that Appellant’s expert’s testimony failed to establish the requisite “reckless disregard” necessary to prove liability under the Act. Although we affirm the lower court’s conclusion that the Act applies, we disagree with its conclusion that Appellant’s expert’s testimony was insufficient to present a jury question and remand this cause for a new trial.

In 1998, the Christensens were riding a motorcycle when they were involved in a collision with a motor vehicle. They were transported by ambulance to Cape Canaveral Hospital. Appellee, Dr. Cooper, was the attending physician in the emergency room. Appellant recovered from her injuries. Mr. Christensen died at the hospital the day after the accident.

Appellant, individually and as personal representative of her husband’s estate, filed a complaint against a number of defendants, including Dr. Cooper, and his employer, Coastal Physician Services of Orlando, Inc. According to the allegations in the third amended complaint, when Mr. Christensen was transported to the hospital, he was complaining of multiple extremity pain as well as abdominal and pelvic pain. He was also exhibiting signs and symptoms of a patient with internal bleeding. Mr. Christensen arrived at the hospital at approximately 11:00 p.m., but was not taken into surgery until 2:15 a.m. Dr. Matthew Lube performed the emergency surgery. During surgery, Dr. Lube discovered three to four liters of blood inside Mr. Christensen’s abdominal cavity, along with a large amount of thrombus. He also discovered that Mr. Christensen had a fractured pelvis and grade five splenic laceration. The gist of Appellant’s theory of liability against Dr. Cooper was that he failed to recognize the severity of Mr. Christensen’s internal injuries and emergent need for surgery and failed to call for surgical evaluation in a timely manner.

By way of amendment to their answer, Appellees filed affirmative defenses to raise the immunity provisions of the Act, section 768.13, Florida Statutes (1998). In a partial summary judgment entered just prior to trial, the lower court determined that the Act applied because Dr. Cooper had treated Mr. Christensen under emergency conditions while Mr. Christensen was unstable. Based on that ruling, it was incumbent upon Appellant to prove that Dr. Cooper acted with “reckless disregard,” as that phrase is defined by the Act. In recognition of this ostensibly higher burden, after ruling that the Act was applicable, the trial judge asked Appellant’s counsel whether that ruling would impact her standard of care witness, Dr. Neim-ann. Appellant’s counsel indicated that he had discussed this issue with the expert, who he anticipated would opine that Dr. Cooper’s omissions amounted to a reckless disregard. He cautioned, however, that Dr. Neimann had not been asked this question in his prior depositions. To avoid any prejudice to the defense, the trial court permitted Appellees’ counsel to depose Dr. Neimann again prior to his trial testimony. Although that trial commenced, it ended in a mistrial due to Hurricane Frances in September 2004.

Trial once again commenced the following year. Appellant called Dr. Neimann as her first witness. Dr. Neimann testified over two days, including direct, cross and redirect examinations. After Dr. Neimann’s testimony, Appellees moved for a directed verdict. The court granted the motion. The court entered its final judgment in favor of Appellees, from which an appeal was taken. Thereafter, the lower court entered a separate judgment taxing costs, from which an appeal was taken. The two appeals were consolidated.

At the outset, we conclude that the lower court was correct in its determination that the Act applied. In making this determination, we reject Appellant’s claim that disputed issues of fact on whether Mr. Christensen was “stable” precluded summary judgment. However, we disagree with the trial court’s conclusion that Appellant’s expert’s testimony was insuffi-dent to present a jury question under the Act. The 1998 version of the Act, applicable here, provides in pertinent part:

768.13. Good Samaritan Act; immunity from civil liability
(1) This act shall be known and cited as the “Good Samaritan Act.”
(2)....
(b)l. Any hospital ..., any employee of such hospital ..., and any person licensed to practice medicine who in good faith renders medical care or treatment necessitated by a sudden, unexpected situation or occurrence resulting in a serious medical condition demanding immediate medical attention, for which the patient enters the hospital through its emergency room or trauma center, shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.
3. For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct which a health care provider knew or should have known, at the time such services were rendered, would be likely to result in injury so as to affect the life or health of another,....

§ 768.13(l)-(2)(b), Fla. Stat. (1998) (emphasis added).

Our de novo review of the propriety of the directed verdict is focused on the sufficiency of Appellant’s expert’s testimony that the medical care given by Dr. Cooper amounted to a “reckless disregard for the consequences,” which, because of the statutory definition of that phrase, turns on whether sufficient evidence was admitted that Dr. Cooper “should have known” that his acts or omissions “would be likely to result in injury” to Mr. Christensen. The parties agree that the Act is intended to establish the standard of care that applies to emergency room doctors for unstable patients. They disagree, however, whether the standard of care established by the Act is ordinary negligence or something more stringent. We think this debate is largely academic because, regardless of which legal label is attached, the issue we must resolve is whether the proof was sufficient under the Act, based on the language of the Act.

The essence of Dr. Neimann’s opinion was that Dr. Cooper should have recognized that Mr. Christensen was bleeding internally and needed immediate surgical intervention. Employing the Act’s definition for reckless disregard, he concluded that Dr. Cooper should have known that these omissions would likely result in injury to Mr. Christensen. During voir dire, counsel for Appellees asked Dr. Neimann questions regarding Dr. Neimann’s interpretation of the meaning of “reckless disregard.” In response to questions posited by defense counsel, Dr. Neimann opined that “reckless disregard,” as defined by the statute, was, in his view, no different from the standard of care applicable in an ordinary medical negligence analysis. Seizing on this testimony, Appellees argued that Dr. Neimann had applied the wrong standard of care. The trial court agreed and granted the directed verdict.

On appeal, Appellees concede that Dr. Neimann said the “magic words.” In other words, they concede that Dr. Neimann stated his opinion using the language of the statute. Appellees also acknowledge that the evidence code permits this form of testimony by experts. They argue, however, that the voir dire and cross examinations revealed that the opinion was not supported by underlying facts or data and should be disregarded. We disagree because this testimony did not pertain to the facts or data upon which Dr. Neimann relied in reaching his conclusion. Rather, it focused on the doctor’s opinion about the legal meaning of the Act, the inquiry about which was both irrelevant and outside the expertise of a medical expert. Whether the Act’s standard is more similar to negligence or recklessness, as commonly defined, might be difficult to say, even for legal experts. But the application of the definition is not complicated. The issue is whether Dr. Cooper should have known, based on all the relevant circumstances, that his failure to order immediate surgical intervention would likely result in injury to Mr. Christensen. While reasonable medical experts might disagree on the answer to this question, the application of this standard to a given set of facts is straight forward. Having read Dr. Neimann’s testimony, it is clear that he understood and applied the correct standard, irrespective of whether he attached to it the correct legal label.

Having concluded that a new trial is required, we address one other point on appeal related to the cross-examination of Dr. Neimann. Appellees’ counsel asked questions to highlight the fact that Dr. Neimann, although he was retained in April 2000, had never heard of the term “reckless disregard” and did not render an opinion that Dr. Cooper’s conduct constituted reckless disregard until the first trial in September 2004. Appellant’s counsel objected to several individual questions as being irrelevant and immaterial, but the trial court overruled the objections. We think this was an abuse of discretion. This line of questioning constituted improper impeachment and was, therefore, irrelevant. The suggestion was that Dr. Neim-ann was giving recently fabricated testimony or testimony that was inconsistent with his prior opinions. In fact, Dr. Neimann had not been asked to give an opinion applying the reckless disregard standard before the trial court ruled that the Act controlled. His trial testimony, therefore, was neither a recent fabrication nor inconsistent with prior testimony. Further, the questions were improper in form. Although Appellant could have rehabilitated Dr. Neimann by pointing out the actual facts and sequence of events, Appellant should not be forced to wade through irrelevancies to undo the confusion that might have resulted from this misleading line of cross-examination.

Finally, based on our disposition of the underlying judgment, the costs judgment is reversed.

AFFIRMED in part; REVERSED in part, AND REMANDED.

ORFINGER and MONACO, JJ., concur.

      . The Act was amended in 2003. We reject Appellees’ argument that the amendment was intended to "clarify” the prior version of the statute.

      . The statutory definition of "reckless disregard” in the 1998 version of the Act is unconventional, but this is a phrase that is difficult to define, as evidenced by the definition contained in section 500 of the Restatement (Second) of Torts, which defines the phrase by contrasting it to negligence and concluding that it is "substantially greater than that which is necessary to make his conduct negligent.”

      . We have not overlooked Appellant’s other point on appeal related to trauma scoring evidence, but conclude that no abuse of discretion has been shown on that point.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Katlyn Jo GRETZ, Appellee.
    No. 5D07-310.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Jan. 14, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State challenges on appeal the circuit court’s imposition of a downward departure sentence.

Appellee, Katlyn Gretz [“Appellee”] was charged by information with: count one (aggravated battery on a law enforcement officer), counts two through five (battery on a law enforcement officer), count six (aggravated battery with a deadly weapon), count seven (domestic aggravated battery with a deadly weapon), count eight (resisting a law enforcement officer with violence), and count nine (criminal mischief causing more than $200 damage).

Appellee entered into an open plea to the court. The court accepted her plea, ordered a PSI and scheduled a sentencing hearing. Pursuant to her scoresheet, the lowest permissible prison sentence Appel-lee could receive was 98.4 months. The maximum sentence was seventy years.

The sentencing hearing was held on January 16, 2007. The original victim, Alea-sha McCance, Appellee’s roommate and life partner, testified that she did not want Appellee to be imprisoned and believed that alcohol played a role in Appellee’s actions on the night in question. She also felt that Appellee should seek counseling. She further testified that Appellee suffered from panic disorders, had taken Zoloft and Xanax in the past and needed to be put back on her medication. She also stated that Appellee had been to an alcohol rehabilitation center to address her problems but was never placed on any medication.

Another victim, Sandra McCance, Alea-sha’s mother, testified that she also believed Appellee had alcohol and anger management problems. Sandra believed Appellee should be punished but did not think Appellee should be sent to prison.

Deputy Kenneth VanTassel, the law enforcement victim, testified that he was bitten by Appellee’s dog based on Appellee’s command. When he was asked what he thought an appropriate sanction should be, he identified medication, counseling and probation.

At the conclusion of the testimony, the State requested that the court impose the lowest permissible sentence of 98.4 months, asserting that anything less would be an illegal sentence.

Appellee was adjudicated guilty on all counts. The lower court sentenced Appel-lee to a downward departure sentence as follows:

As to count nine, I’m gonna give you 11 months 29 days in the Hernando County Jail.
As to counts two, three, four, five and eight, I’m gonna give you five years in the Department of Correction[s]. But I’m gonna suspend that based upon one year in the Hernando County Jail, two years house arrest, followed by two years probation.
As to counts six and seven, I’m gonna give you 15 years in the Department of Correction[s]. I’m gonna suspend that based upon one year in the Hernando County Jail, two years house arrest, followed by 13 years probation. That will be concurrent with counts two, three, four, five and eight; and concurrent with the eleven/twenty-nine in count nine.
As to count one, I’m gonna give you 30 years probation, consecutive to counts two, three, four, five, six, seven, eight as they go through. So you’re going to be on some time of supervised probation for 35 years. You understand that? ...

Fines and court costs in the amount of $2,385.50 were also imposed along with restitution.

To support the downward departure sentence, the trial judge announced that the need for psychological and substance abuse treatment outweighed the presumptive sentence and that the departure was necessary for payment of restitution. On the criminal punishment score-sheet, however, the judge wrote that he based his departure sentence on: 1) the capacity of Appellee to appreciate the criminal nature of her conduct or to conform that conduct to the requirements of law was substantially impaired; 2) Appel-lee requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and that she is amenable to treatment, and 3) the offense was committed in an unsophisticated manner and was an isolated incident for which Appellee has shown remorse. See § 921.0026(2)(j), Fla. Stat. (2006). Although there is no record evidence to support the two orally stated departure grounds, the record supports the written ground for departure.

The State is correct, however, that Appellee’s conviction for aggravated battery upon a law enforcement officer under section 784.07(2)(d), Florida Statutes, required the lower court to impose a five-year minimum mandatory sentence. Section 784.07(2)(d) provides in pertinent part:

d) In the case of aggravated battery, from a felony of the second degree to a felony of the first degree. Notwithstanding any other provision of law, any person convicted of aggravated battery of a law enforcement officer shall be sentenced to a minimum term of imprisonment of 5 years.

(Emphasis added). On appeal, Appellant urges that, on resentencing, the trial court may consider a youthful offender sentence for Appellee and that such a sentence would not be controlled by this mandatory minimum. See, e.g., Darrow v. State, 789 So.2d 552 (Fla. 5th DCA 2001). The State agrees that this is so. Accordingly, we vacate the sentence and remand for resen-tencing.

SENTENCE vacated; and REMANDED for resentencing.

THOMPSON, J„ and SIMMONS, C., Associate Judge, concur.

      . The facts supporting the plea showed that law enforcement was called out on a domestic disturbance. An argument had occurred between Appellee, her roommate and her roommate's mother. The officers were told that Appellee attacked her roommate and her roommate’s mother and ordered her dog to attack them. Appellee then attacked the officers and ordered her dog to attack one of the officers. After she was handcuffed, she was placed in the vehicle where she kicked out the window. She also spit on EMS when they came to examine her.

      . We reject the State's contention that the failure to orally pronounce this departure ground was fatal. See Fla. R.Crim. P. 3.704(d)(27)(A).


author: SUAREZ, J.

text:
    Gerardo GUADAGNO, individually and as Personal Representative of the Estate of Dianna Guadagno, Appellants, v. LIFEMARK HOSPITALS OF FLORIDA, INC., d/b/a Palmetto General Hospital, and Inphynet Contracting Services, Inc., Appellees.
    No. 3D05-2536.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.

      Julio Arango, Coral Gables; Arthur Joel Berger, Miami, for appellants.
    McCrane, Nosich & Ganz, and Daniel Harwin; Falk, Waas, Hernandez, Cortina, Solomon & Bonner, and Paul H. Field, Coral Gables, for appellees.
    Before RAMIREZ, SUAREZ and SALTER, JJ.
   SUAREZ, J.

The appellant, Gerardo Guadagno, husband of the deceased, Dianna Guadagno, appeals from an Order on Post Trial Motions granting judgments notwithstanding the verdict and a Final Judgment in favor of the defendants, Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital (Palmetto), and Inphynet Contracting Services, Inc. (Inphynet). In the post trial hearing, the trial court found that the evidence was legally insufficient to prove either that the emergency room doctor’s negligence was the cause of Dianna Gua-dagno’s death or that the emergency room doctor was the apparent agent of the hospital. The court also found that there was competent substantial evidence to support the jury’s finding of comparative negligence on the part of the deceased and upheld its ruling at trial that the plaintiffs expert could not testify on the question of causation because a proper predicate had not been laid. We affirm on all points.

Dianna Guadagno was injured in a slow-speed crash while riding a minibike. Paramedics took her to the emergency room at Palmetto General Hospital where she signed admission documents stating she understood that the emergency room doctor was an independent contractor and not an agent or employee of the hospital. After x-rays and a CAT scan, emergency room personnel determined that the decedent had a small fracture of the greater trochanter of her right leg (that part of the upper femur that rests near the hip socket), as well as various cuts, abrasions and bruises. Dr. Valdes was the emergency room physician on duty. Dr. Valdes conferred by phone with Dr. Krikorian, the orthopedic surgeon on call for Palmetto, regarding the radiological and physical exam results. The x-rays and CAT scans revealed no other fractures. Dr. Valdes performed a physical exam of the patient and found her able to walk unassisted for a short distance. The leg fracture was not one that typically called for admission to the hospital and Dr. Krikorian recommended that the decedent be discharged with crutches, and be told to follow up with him the following Monday, three days later. The decedent was discharged from the emergency room early the following morning. The written discharge instructions did not include any advice on how to avoid deep vein thrombosis, although Dr. Valdes testified that his verbal discharge instructions included advice to stay as mobile as possible.

The decedent went home and stayed immobile in bed for the next several days, expressing a great deal of pain. She rejected requests by her family to go directly to the emergency room and opted instead to try to make an appointment with Dr. Krikorian, which appointment was delayed until Tuesday. On Tuesday, her family took her to the hospital to see Dr. Krikorian. She could not walk and was in a wheelchair. She fell from the wheelchair, unconscious, while in the parking lot on her way to see Dr. Krikorian and died in the emergency room. It was later determined that she suffered a pulmonary embolism. A clot had developed in her leg, dislodged and traveled to her heart, causing sudden death.

The decedent’s family sued Palmetto and Inphynet as vicariously liable for the medical malpractice of Dr. Valdes. Dr. Valdes is not an employee of Palmetto, but is employed by Inphynet, the contractor for emergency room services to Palmetto. Plaintiff asserted that Dr. Valdes did not give the decedent sufficient discharge instructions, which should have included the admonition to move about and not remain in bed in order to avoid deep vein thrombosis. Palmetto and Inphynet both answered that the decedent herself was the sole proximate cause of her own death. At trial, various experts opined on the level of discharge instructions necessary for someone diagnosed with a small fracture of the greater trochanter. Family members testified that the decedent, although in much pain, refused their offers to take her to the emergency room. The jury concluded that Dr. Valdes was 10% negligent, and that the decedent was 90% negligent, and that all the other parties were not liable. Both defendants filed motions for a directed verdict, arguing that the plaintiffs had not established causation. The plaintiffs filed for a new trial based on evidentiary rulings that allegedly foreclosed establishing causation. At a post-trial hearing, the trial court granted the defendants’ motions for directed verdict and denied the plaintiffs motion for new trial on all issues raised and rendered this in a Final Judgment.

The appellant first argues that had the decedent been given appropriate discharge instructions to include getting out of bed and walking around to prevent clot formation, it is more likely than not she would not have suffered this risk factor. The appellant asserts that a jury could reasonably conclude that the decedent would not have died had Dr. Valdes given her these instructions upon discharge. We disagree. The issue of causation in a medical malpractice lawsuit requires the plaintiff to show that the injury complained of more likely than not resulted from the defendant’s negligence. The case of Gooding v. University Hospital Building, Inc., 445 So.2d 1015, 1020 (Fla.1984) provides the test:

A plaintiff in a medical malpractice action must show more than a decreased chance of survival because of a defendant’s conduct. The plaintiff must show that the injury more likely than not resulted from the defendant’s negligence in order to establish a jury question on proximate cause. In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.

Here, even if the plaintiff undeniably established that Dr. Valdes’ discharge instructions were below the standard of care (a conclusion the record does not support), the plaintiff did not establish that the absence of a specific instruction was the proximate cause of the decedent developing a blood clot which then dislodged and traveled to her heart. The plaintiff did not show that the injury more likely than not resulted from Dr. Valdes’s alleged negligence in failing to instruct the patient to try to be as mobile as possible. The connection is simply too tenuous, and we affirm the directed verdict on this issue.

The appellant next asserts that the trial court erred in finding that there was no evidence from which a jury could have concluded that Dr. Valdes was an actual or apparent agent of Palmetto. We disagree. The evidence at trial established that Dr. Valdes was an independent contractor. Generally, a hospital may not be held liable for the negligence of independent contractor physicians to whom it grants staff privileges. See Insinga v. LaBella, 543 So.2d 209, 212, 214 (Fla.1989); Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 601 (Fla.1987). However, “[ujnder certain circumstances ... a hospital may be held vicariously liable for the acts of physicians, even if they are independent contractors, if these physicians act with the apparent authority of the hospital.” Roessler v. Novak, 858 So.2d 1158, 1162 (Fla. 2d DCA 2003). There was no evidence at trial that the doctor was an actual agent of the hospital. The emergency room documents signed by the decedent upon her admission, state that the doctor is an independent contractor and not an agent or employee of Palmetto. An apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. Roessler at 1161. None of these elements was established at trial. Contrary to the appellant’s assertions, apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. See Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates the appearance of an agency relationship, see id., and in this case, the principal, Palmetto General Hospital, expressly disavowed an agency or employee relationship, conveyed that information to the decedent, and the decedent acknowledged this by signing the admission documents. We therefore affirm the directed verdict on this issue.

The appellant next asserts that the trial court erred in denying the plaintiffs motion for new trial on the issue of comparative negligence. We affirm the trial court on this issue. There was competent substantial evidence presented at trial to allow the jury to conclude that the decedent was partially responsible for the complication. Additionally, Florida law recognizes that a party waives the issue of legal sufficiency of the evidence by failing to move for a directed verdict on that issue at time of trial. See Prime Motor Inns, Inc. v. Wattman, 480 So.2d 88, 90 (Fla.1985) (One must move for a directed verdict at the end of all the evidence or one waives the right to make that motion.); Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412, 418 (Fla. 4th DCA 1980) (holding that an appellate court is powerless to review the sufficiency of the evidence to support the verdict if the appellant made no motion for a directed verdict). The appellant failed to move for a directed verdict based on legal insufficiency of the evidence to support finding the deceased comparatively negligent, and thus is foreclosed from raising that issue on appeal.

Last, appellant claims that the trial court abused its discretion by disallowing the plaintiffs question to the expert witness as to ultimate causation, where the plaintiff failed to establish the proper predicate for that opinion. We find the trial court did not abuse its discretion. The proper predicate could have been established by asking the expert witness what reasonable emergency room standards are for this specific injury at this hospital, how specifically the doctor’s instructions fell below standards, and whether that specific breach of care was the proximate cause of the patient’s death. The record shows that the plaintiff had opportunity to provide the proper predicate for the questions on causation, but failed to do so despite frequent advice from the trial court.

Affirmed.