author: BOLIN, Justice.

text:
    Ex parte State of Alabama. (In re Troy Andrew SMILEY v. STATE of Alabama).
    1081502.
    Supreme Court of Alabama.
    May 7, 2010.

      Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.
   BOLIN, Justice.

The State of Alabama, pursuant to Rule 39, Ala. RApp. P., petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in reversing the trial court’s judgment revoking Troy Andrew Smiley’s probation. We hold that it did, and we reverse and remand.

Underlying Facts and Procedural History

On June 13, 2008, Smiley pleaded guilty in the Lee Circuit Court to the unlawful possession of drug paraphernalia. He was sentenced to one year’s imprisonment; however, the trial court suspended the sentence and placed Smiley on supervised probation for one year. Almost three months before his sentencing on the unlawful-possession conviction, Smiley was involved in the murder of Jeffery Blake Stone. The following facts detailing Smiley’s involvement in the murder are outlined chronologically in a statement he made to an investigator at the Etowah County Sheriffs Office: On March 24, 2008, Smiley’s friend and neighbor, Nathan Lee, used Smiley’s 9mm Ruger brand handgun to kill Stone. Smiley’s participation in the murder began approximately two weeks before the murder when Lee discussed with Smiley his desire to kill Stone. After Lee shot Stone on March 24, 2008, he and Smiley disposed of the body that same day by burying it beside a logging road. A few months later, Smiley contacted Lee and told him that he needed the gun back because the girl he had purchased it from told him that if she did not get the gun back, a drug dealer was going to kill her. Lee and Smiley at some point thereafter retrieved the gun, which Lee had buried. “About a month later,” Smiley stopped by the site where they had buried Stone and discovered that Stone’s legs were sticking out of the ground. Smiley contacted Lee and they subsequently dug up the body. Smiley and Lee placed the body in Smiley’s truck and went back to Smiley’s house. Lee then transferred the body in his truck and eventually placed it in a freezer at his house. On July 1, 2008, Smiley confessed to the events surrounding the murder of Stone.

On July 24, 2008, the trial court issued a “probation tolling order” and issued a warrant for Smiley’s arrest based on Smiley’s alleged commission of a new offense — murder. On September 4, 2008, the trial court conducted a probation-revocation hearing. Jeff Hopper, a criminal investigator with the Etowah County Sheriffs Office, testified at the hearing regarding his interviews with Smiley. Smiley’s statement to Hopper detailing the events surrounding the murder was also read into evidence at the hearing. On September 18, 2008, the trial court entered the following order revoking Smiley’s probation:

“[A]lthough the Etowah County murder took place prior to the time of [Smiley’s] June 13, 2008, plea, conviction, and probation in Lee County for [the unlawful possession of drug paraphernalia], [Smiley] violated his probation. According to [Smiley’s] statement, he participated in contemporaneous events intended to cover up the murder, which would be part of the res gestae of the charged crime, up until his confession on July 1, 2008.”

(Emphasis added.)

Smiley appealed his probation revocation to the Court of Criminal Appeals, which reversed the trial court’s order revoking Smiley’s probation. Smiley v. State, 52 So.3d 563 (Ala.Crim.App.2009). The Court of Criminal Appeals, relying on Rutledge v. State, 512 So.2d 824 (Ala.Crim.App.1987), concluded that “[b]ecause the [trial] court relied on alleged misconduct by Smiley that occurred almost three months before the court sentenced him and placed him on probation, the [trial] court’s order revoking Smiley’s probation is due to be reversed.” In Rutledge, the Court of Criminal Appeals held that charges based on conduct occurring before sentence is imposed and probation ordered cannot form the basis for revoking a defendant’s probation on the ground that the defendant has committed a new offense. In its petition to this Court for the writ of certiorari, the State contends, in part, that the Court of Criminal Appeals’ decision conflicts with Ex parte Cater, 772 So.2d 1117 (Ala.2000), Ex parte Yelverton, 929 So.2d 438 (Ala.2005), and Friedman v. Friedman, 971 So.2d 23 (Ala.2007), because, it says, the Court of Criminal Appeals improperly reweighed the evidence and did not give effect to the presumption of correctness afforded a trial court’s judgment in cases in which evidence is presented ore tenus.

Standard of Review

The trial court in this case entered its judgment after hearing testimony from Investigator Hopper regarding his interviews with Smiley and after hearing the details contained in Smiley’s statement to Hopper, which was read into evidence. Hence, the ore tenus rule applies to the trial court’s findings of fact.

“ ‘The ore tenus rule provides that a trial court’s findings of fact based on oral testimony “have the effect of a jury’s verdict,” and that “[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.” Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984). “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).’
“Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001). ‘The trial court’s judgment in cases where the evidence is heard ore tenus will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ River Conservancy Co., L.L.C. v. Gulf States Paper Corp., 837 So.2d 801, 806 (Ala.2002). Accord Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989). ‘In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).
“ ‘ “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court....’” Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). ‘When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985).”

Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004).

“A probation-revocation hearing is a bench trial and the trial court is the sole fact-finder.” Ex parte Abrams, 3 So.3d 819, 823 (Ala.2008).

Analysis

In its brief before this Court, the State points out that the evidence at the probation-revocation hearing regarding the chronological order of events occurring after the murder and before Smiley’s confession was conflicting. As previously noted, the murder in this case occurred on March 2k, 2008; Smiley was placed on probation for possession of drug paraphernalia on June 13, 2008; and Smiley confessed to the events surrounding the murder on July 1, 2008. Investigator Hopper testified regarding his interviews with Smiley. According to Hopper, Smiley checked on Stone’s buried body approximately one month after Lee shot Stone and he and Lee buried Stone’s body. Smiley and Lee moved the body to a freezer at Lee’s home, where it was ultimately found. A few months after moving the body, Smiley told Lee that he needed the gun back, and Lee retrieved the buried gun and gave it back to Smiley.

Smiley’s statement detailing the events surrounding the murder was also read into the evidence. The facts according to his statement are as follows: A few months after Stone’s shooting and the burial of his body, Smiley told Lee that he needed the gun back. Smiley and Lee thereafter retrieved the gun, which Lee had buried. A month later, Smiley went back to the site where they had buried Stone and discovered that Stone’s legs were sticking out of the ground. Smiley and Lee dug up the body, and Lee eventually placed the body in a freezer at his house. According to the chronology of events contained in Smiley’s statement, the gun was retrieved first, a few months after the shooting. Then, approximately one month after the gun was retrieved, Lee and Smiley moved the body. Smiley’s statement also confirms that approximately one week before Smiley’s confession on July 1, 2008, Lee went to Smiley’s home and told Smiley that he wanted to fill a 55-gallon barrel with diesel fuel to burn Stone’s body but that Smiley told Lee he was busy. The morning Smiley confessed to the events surrounding the murder — July 1, 2008 — Lee again went to Smiley’s house and asked Smiley if he had found a barrel yet and Smiley stated that he had not.

The Court of Criminal Appeals determined that all Smiley’s alleged misconduct, i.e., the events surrounding Stone’s murder, occurred approximately three months before Smiley was placed on probation. The trial court, however, relied on the chronology of events as detailed in Smiley’s statement to Investigator Hopper, concluding that, even though the murder took place before Smiley was sentenced and placed on probation, “he participated in contemporaneous events intended to cover up the murder, which would be part of the res gestae of the charged crime, up until his confession on July 1, 2008.” In other words, the trial court apparently concluded that, based on the chronology of events as detailed in Smiley’s statement, some of the acts, i.e., retrieving the gun, moving the body, attempting to locate a barrel in which to dispose of the body, occurred after Smiley was placed on probation and that such conduct occurred in order to cover up the murder. Accordingly, the trial court, as the fact-finder, did not exceed its discretion in revoking Smiley’s probation based on this conduct.

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals reversing the trial court’s order revoking Smiley’s probation and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, PARKER, and SHAW, JJ., concur.

WOODALL and MURDOCK, JJ., concur in the result.

      . As discussed infra, the evidence of the timing of these events at Smiley’s probation-revocation hearing was not consistent.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Troy Andrew SMILEY v. STATE of Alabama.
    CR-07-2275.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    Johnny V. Berry and Brandon C. Little, Cullman, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

KELLUM, Judge.

The appellant, Troy Andrew Smiley, appealed the circuit court’s revocation of his probation. Smiley argued on appeal that the circuit court erred in revoking his probation based on alleged misconduct that occurred before he was sentenced and placed on probation. This court agreed and reversed the circuit court’s judgment revoking Smiley’s probation. See Smiley v. State, 52 So.3d 563 (Ala.Crim.App.2009).

The State petitioned the Alabama Supreme Court for certiorari review, which the Supreme Court granted. On May 7, 2010, the Supreme Court reversed this Court’s judgment, holding that the circuit court, as the sole fact-finder in a probation-revocation hearing, did not exceed its discretion in revoking Smiley’s probation based on the evidence presented at the probation-revocation hearing. Smiley v. State, 52 So.3d 565 (Ala.2010).

In light of the Supreme Court’s holding, we affirm the circuit court’s judgment revoking Smiley’s probation.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

      . We note that on May 24, 2010, the circuit court entered an order that purported to reinstate its orders revoking Smiley’s probation in accordance with the Supreme Court’s decision. However, the circuit court lacked jurisdiction to reinstate its orders revoking Smiley’s probation because jurisdiction over the case remained with the Supreme Court until May 25, 2010, the date it issued the certificate of judgment in this case, at which point the case was remanded to this Court. " 'The general rule is that jurisdiction of one case cannot be in two courts at the same time.' ” Rogers v. State, 782 So.2d 847, 848 (Ala.Crim.App.2000) (quoting Ex parte Hargett, 772 So.2d 481, 483 (Ala.Crim.App.1999)). Therefore, the circuit court lacked jurisdiction to enter any order on May 24, 2010; thus, the circuit court’s May 24, 2010, order purporting to reinstate Smiley’s probation is void. See Gordon v. State, 710 So.2d 943, 945 (Ala.Crim.App.1998) (quoting McKinney v. State, 549 So.2d 166, 168 (Ala.Crim.App.1989)). Accordingly, it is now necessary for the circuit court to enter a new order in compliance with the Supreme Court's opinion.


author: MAIN, Judge.

text:
    Lugine Capri CAVER v. STATE of Alabama.
    CR-08-2014.
    Court of Criminal Appeals of Alabama.
    April 30, 2010.
    Rehearing Denied June 18, 2010.

      Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   MAIN, Judge.

Lugine Capri Caver was convicted of third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975. Pursuant to Alabama’s Habitual Felony Offender Act, the trial court sentenced him to 20 years’ imprisonment. See § 13A-5-9 et seq., Ala.Code 1975. This appeal followed.

On June 12, 2008, at 3:15 a.m., an individual broke the drive-through window at the McDonald’s fast-food restaurant located on St. Stephens Road in Mobile County and removed the cash-register drawer. A surveillance camera recorded the incident. The cash-register drawer that was taken from the cash register reportedly did not contain any money. However, it was not located. Law-enforcement officials attempted to recover fingerprints from the broken glass. However, they were unable to obtain any fingerprints because the glass was in such small pieces.

Sean Black, a detective with the City of Mobile Police Department, testified that he was in charge of the investigation of this burglary. He received the surveillance videotape on June 26, 2008, from Lance Williams, the owner and operator of the McDonald’s restaurant, and he viewed the tape that same day. He recognized the person in the videotape as Caver because he had seen him several times in photographs and in person. Detective Black testified, over objection, that he had seen Caver on the day of the burglary because Caver had been brought to the police station on other charges. Caver did not testify, and the defense presented no evidence.

On appeal, Caver argues that the trial court reversibly erred by reopening the case and allowing the jury to view his arms after the jury had begun its deliberations. Specifically, he asserts that: “in allowing additional physical evidence against Caver to be admitted into evidence, after the jury had begun its deliberations, denied him a fair trial and is therefore reversible error.” (Appellant’s brief, at 9.)

“Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ Lisenba v. California, 314 U.S. 219, 236 (1941).”

United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982). In state criminal prosecutions, due process “secures the accused in those certain basic and fundamental rights which are an integral part of the American system of criminal jurisprudence.” Application of Stecker, 271 F.Supp. 406, 409 (D.N.J.1966), aff'd, 381 F.2d 379 (3d Cir.), cert. denied, 389 U.S. 929 (1967). “[W]hen a case is reopened for the reception of further evidence, it must be done in such a manner that the rights of all parties will be protected and ample opportunity afforded them for cross examination or rebuttal, and even for requesting additional instructions, if the matters introduced should reasonably require them.” Perkins v. State, 253 Miss. 652, 655, 178 So.2d 694, 696 (1965) (holding that it was reversible error for the trial court to allow the jury to view the victim’s scars once deliberations had begun).

The record reveals that, while the jury was deliberating, it returned to the courtroom several times to view the surveillance videotape of the burglary. After viewing the surveillance tape for a third time, the jury returned to the jury room to deliberate and then presented the following question to the circuit court judge: “Can we see his arms?” (C. 24; R. 137.) The following exchange transpired:

“THE COURT: Over the objection of the defendant, I’m going to allow the jury to view the defendant’s arms. They’ve asked a question of can they see his arms, after watching the videotape numerous times.
“[DEFENSE COUNSEL]: Judge, here’s another thing I’m going to say. That it really bothers me. I can’t argue to the jury now. I can’t make any argument at all to the jury concerning what they see on his arms; where, if it had happened during the trial, I could have, and I would have. He’s got tattoos on him that should be able to be seen in that video that now I can’t argue to the jury: Look, folks, look at this right here. Do you see this? You could have seen this on the video.
“THE COURT: All right. Well-
“[DEFENSE COUNSEL]: Then it gets into a situation where he wants to — he wants to cross-examine him or he wants to argue about it.
“[PROSECUTOR]: We don’t know why they want to see it, though. We don’t know why they want to see his arms.
“THE COURT: Let’s go ahead.
“[DEFENSE COUNSEL]: Where do you want to put him. Judge?
“THE COURT: What do you think? Just right where you’re at [sic] ?
“[DEFENSE COUNSEL]: Yeah, I think right here.
“THE COURT: Go ahead and bring them on out. We’ll let them—
“(The jury enters the courtroom at 3:45 p.m.)
“THE COURT: All right. The question was asked whether you could see his arms, and I’m going to allow that in this case. If you would, Mr. Caver, go ahead and put your arms out so the jury members can see it.
“[DEFENSE COUNSEL]: Make sure they see the top of your hands?
“THE COURT: No comments by anybody on anything of this. Just let them see it, and we’ll send /all back in when /all are ready. Are /all ready? See what you need to see?
“(Jurors respond affirmatively.)
“THE COURT: All right. Go ahead and go back in.”

(R. 137-38.) The record indicates that approximately 13 minutes later the jury announced it had reached a verdict; the jury found Caver guilty as charged in the indictment.

We turn to Caver’s claim that because no evidence was presented at trial on the issue whether he had markings on his arms, the view given to the jury of his arms constituted new evidence and amounted to an improper reopening of the case. Section 15-14-4, Code of Alabama 1975, gives a trial court permission to allow the introduction of additional evidence “at any time before the conclusion of argument....” §15-14-4, Ala.Code 1975 (emphasis added). Further, “[bjefore the jury retires to begin deliberation of the case, the court, upon a showing of good cause, may allow the case to be reopened.” Rule 19.1(h), Ala.R.Crim.P. (emphasis added). See Charles W. Gamble, McElroy’s Alabama Evidence § 436.01(2) (5th ed. 1996). “Although it is within the discretion of the trial court to reopen the case after the close of evidence, it is clear that cases construing § 15-14-4 have consistently held it to be error to do so after submission of the case to the jury.” Harris v. State, 371 So.2d 979, 983 (Ala.Crim. App.), cert. denied, 371 So.2d 984 (Ala.1979), and cases cited therein. See also Reed v. State, 475 So.2d 641 (Ala.Crim.App.1985) (holding that the trial court improperly allowed the jury to have three additional pages of a report after only one page of the report had been referred to during the trial). Cf. Jolly v. State, 405 So.2d 76 (Ala.Crim.App.1981) (finding no error where the trial judge allowed in a photographic negatives, which the jury requested to see after it had begun its deliberations, which depicted a tag appearing on the automobile used by the robbers because, during the course of the trial, there had been oral testimony about the negatives).

In Ex parte Batteaste, 449 So.2d 798 (Ala.1984), the Supreme Court of Alabama held that it was error for the trial court to permit “the jury, over objection of the defendant, to view the defendant’s face to see if he had a scar on it.” 449 So.2d at 799. In Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972), this Court ruled that a jury request to view the hands of a defendant who was charged with murder by strangulation came too late because the case had already been submitted to the jury and any member of the jury had the opportunity to observe the defendant’s hands during the trial, particularly while the defendant was testifying in his own behalf. 290 Ala. at 144, 274 So.2d at 354. Accord United States v. Santana, 175 F.3d 57 (1st Cir.1999) (holding that the district court improperly allowed the jury, during its deliberations, to return to the courtroom to observe the defendant’s ears, which had been covered during the trial by headphones used for language translation); Scott v. State, 664 So.2d 3, 4 (Fla.Dist.Ct.App.1995) (finding error in a prosecution for an undercover drug transaction, where the jury requested, after the close of evidence and during its deliberations, “to view the defendant’s right profile,” which had not been viewed at trial).

The trial court erred in requiring Caver to display his arms to the jurors after the jury had retired for deliberations. The display of his arms constitutes non-testimonial physical evidence the jury had not seen during the trial, and the presentation of this new evidence after the court submitted the case to the jury was improper. See Batteaste, supra; Harris, supra; Hamage, supra. Because the sole issue at trial was whether Caver was the person depicted in the surveillance videotape of the burglary of the McDonald’s restaurant and the jury requested additional information in resolving that issue, we hold that the error was not harmless. For these reasons, we reverse the judgment. The judgment is reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

WELCH and WINDOM, JJ., concur. KELLUM, J., concurs in the result. WISE, P.J., recuses herself.

      . The State submits that Caver failed to preserve this issue for review. However, we believe that, although Caver's objection was not a model of clarity, it is clear that the trial court understood his objections, and that his arguments on appeal are challenging the trial court's ruling on the same or similar grounds.


author: PER CURIAM.

text:
    Alfred C. CANSECO, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-1535.
    Supreme Court of Florida.
    April 22, 2010.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, FL, for Petitioner.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Joshua R. Heller, Assistant Attorneys General, Tallahassee, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the First District Court of Appeal in Canseco v. State, 12 So.3d 923 (Fla. 1st DCA 2009). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:

WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 So.2d 208 (Fla.2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA

Canseco, 12 So.3d at 923. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

Alfredo Canseco entered a no contest plea in 1995 to one count of possession of a controlled substance and was sentenced to two years’ probation. Canseco signed an acknowledgement of rights that contained the statement, “I understand that if I am not a United States citizen, a plea of guilty or no contest could result in my deportation.”

On August 12, 2002, the Immigration and Naturalization Service (INS), issued a Notice to Appear in removal proceedings under section 240 of the Immigration and Nationality Act. The notice informed Can-seco that as a Mexican national, he was subject to removal from the United States as a result of his 1995 conviction.

Canseco filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850 on October 23, 2008. Canseco alleged that his nolo con-tendere plea was not knowingly, intelligently, and voluntarily entered because the possibility of deportation was not explained, in violation of rule 3.172(c)(8). As a result of his plea, Canseco has been deported.

The circuit court denied Canseco’s motion, finding (1) Canseco failed to sign a verification oath, (2) even if he had signed the oath, Canseco was notified in 2002 by INS that he was subject to deportation, (3) Canseco was sworn and examined by a judge before he entered his plea, (4) he was represented by an attorney at the time of his plea, and (5) the plea form demonstrates that Canseco was on notice that he was subject to deportation. Thus, the circuit court found Canseco’s motion to be without merit.

Canseco appealed to the First District Court of Appeal, alleging that the circuit court erred by summarily denying his postconviction motion. In relevant part, Canseco argued that his motion was timely because this Court created a two-year window for all defendants whose convictions were already final in State v. Green, 944 So.2d 208 (Fla.2006). The First District affirmed, but certified the question. Canseco v. State, 12 So.3d 923 (Fla. 1st DCA 2009).

Canseco sought review by this Court.

ANALYSIS

We begin with a discussion of this Court’s ruling in Peart v. State, 756 So.2d 42 (Fla.2000), which was overturned six years later by this Court’s decision in Green. Because Canseco argues that the language in Green should be interpreted to allow any defendant to file a motion to vacate a plea within two years of its issuance, we next explore how the district courts of appeal have interpreted our opinion. Ultimately, we conclude that Green did not revive claims that were final under Peart, and applies to only those claims that were not yet ripe under Peart that would have been time-barred by Green.

In Peart we held that (1) defendants not in custody should use rule 3.850 to raise rule 3.172(c)(8) claims, (2) the two-year period for raising rule 3.172(c)(8) claims commences when the defendant learns of the immigration consequences of the plea, and (3) defendants need not demonstrate probable acquittal at trial to obtain relief. Peart, 756 So.2d at 44-45. We approved language requiring defendants to “establish ... that they were ‘threatened’ with deportation because of the plea,” but did not expound on the meaning of “threatened” as it related to this requirement. Id. at 47. Courts interpreted the clause to require commencement of deportation proceedings, or similar governmental action, to establish a threat of deportation.

“By starting the two-year clock with actual or imputed notice of a threatened deportation rather than finality of the judgment and sentence ... Peart authorized claims that otherwise would have been time-barred.... ” Green, 944 So.2d at 214. As applied, “Peart actually deterfred] defendants from raising rule 3.172(c)(8) claims within the first several years after a plea.” Green, 944 So.2d at 214.

We accepted review in Green and became alerted “to larger problems in applying Peart fairly, efficiently, and with adequate regard for finality.” Green, 944 So.2d at 210. We then receded from Peart because of these unintended consequences and held that the limitation period for filing a motion to vacate a plea alleging noncompliance with hule 3.172(c)(8) “commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation.” Green, 944 So.2d at 210. It is apparent, then, that our goal in deciding Green was to limit delay in the filing of rule 3.172(c)(8) claims. Accordingly, the district courts of appeal have interpreted Green not to create a two-year window for defendants who received actual notice of deportation proceedings more than two years before filing a motion to withdraw plea.

The Third District Court of Appeal recently addressed this issue in State v. Freijo, 987 So.2d 190 (Fla. 3d DCA 2008). In Freijo, the Third District concluded “that (1) Green did not revive claims previously adjudicated on the merits, or unadjudicat-ed claims that unquestionably were time-barred at the time Green was announced.” Id. at 191. Jose Antonio Freijo was served with a deportation notice on November 8, 2002. Id. at 192. Under Peart, he was required to file a motion to withdraw his plea under rule 3.850 by November 8, 2004. Id. Freijo did not file, and thus his claim was time-barred under Peart. Id. Like Canseco, Freijo argued that this Court’s ruling in Green revived his right to move to withdraw his plea. Id. Freijo relied on the same language in Green that Canseco relies on in the instant case. In disagreeing with Freijo’s assertion, the Third District reasoned:

There are two clear indications within the Green decision that the revival of these already indisputably time-barred claims was not intended.
The analysis in Green addressed the practical issues confronting trial courts, district courts, and the State in the wake of the Peart decision. Trial courts and the district courts applied varying standards to a claimant’s knowledge regarding the “threat” of deportation in determining the commencement of the two-year limitations period under rule 3.850 in cases in which an actual deportation notice had not been served. One of the concerns that arose from the application of Peart was that claimants would delay the filing of their motions to withdraw their pleas until they received an actual deportation notice because the passage of time would reduce the State’s ability to re-try cases in the event a plea is withdrawn.
Green explicitly sought to explore and remedy “the problems that have arisen from the application of Peart in the lower courts.” [Green] 944 So.2d at 212....
It follows that the objective of the Florida Supreme Court in Green was to discourage further delay. There is no indication that the Court sought to revive claims, such as Freijo’s, that were already unquestionably time-barred.

Freijo, 987 So.2d at 192-94. Further, the court noted that in establishing the new two-year window, Green also provided an exception where, “the defendant alleges and proves that he or she could not have ascertained the immigration consequences of the pleas with the exercise of due diligence within the two-year period.” Id. at 194 (citing Green, 944 So.2d at 219).

The Third District also came to this conclusion earlier in Markland v. State, 971 So.2d 832 (Fla. 3d DCA 2007). In Markland, the appellant had a deportation order entered against him in 1995, but did not move to withdraw his plea until 2005. Id. at 833. The trial court denied the claim as untimely, which was affirmed on appeal. Id. In 2007, relying on Green, Markland filed a motion for postconviction relief seeking, again, to set aside his plea. The Third District held: “The Green decision ‘reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8).’ The Green decision does not revive a claim which has already been found to be time-barred under Peart.” Markland, 971 So.2d at 834 (quoting Green, 944 So.2d at 219). The Third District reached this conclusion again in State v. De Armas, 988 So.2d 156, 157-58 (Fla. 3d DCA 2008) (“Green actually sought to reduce the uncertainty and delay involved in the filing and determination of motions to vacate pleas grounded on ‘immigration consequences.’ ... Given did not, however, open a new two-year window for the filing of such motions by defendants with over two years of actual knowledge of the immigration consequences of the challenged plea before the filing of the motion to vacate.”); and again in Morales v. State, 988 So.2d 705, 706 (Fla. 3d DCA 2008) (holding that where a defendant’s claim became time-barred under Peart, Given did not revive it).

The Fourth District Court of Appeal reached the same conclusion in Pena v. State, 980 So.2d 542 (Fla. 4th DCA 2008). In Pena, the appellant accepted a plea and was sentenced in 1991. Id. at 543. The record showed that Pena was unaware of the immigration consequences at the time of his plea. Id. In 1998, Pena was notified of removal proceedings. Id. He moved to withdraw his plea in 2000. Id. However, because Pena believed that he could not be deported, he voluntarily dismissed his motion. Id. at 544. After Pena’s motion to terminate the removal proceedings was denied, he filed a successive motion to withdraw his 1991 plea. Id. The trial court denied his motion, and the Fourth District affirmed the denial, reasoning, “[W]e do not believe the language of Given should be read to revive a claim that has already gone stale under Peart.” Pena, 980 So.2d at 545. “Instead, we believe the exception to the two-year limitations period, for cases already final prior to Green, was intended to apply to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn.” Id. at 545-56.

Additionally, in Prieto v. State, 989 So.2d 688 (Fla. 4th DCA 2008) review denied, 1 So.3d 173 (Fla.2009), the Fourth District explained, “The supreme court did not announce any intent to allow defendants to revive an already stale claim, but rather closed a loophole that resulted in a scenario where a defendant could not file a sufficient claim under Peart, and would be unable to file a timely claim under Green.” Id. at 690. Like Canseco, Prieto received notice of his deportation while Peart was still controlling law and did not seek relief under Peart. Prieto, 989 So.2d at 689-90.

In Ventura v. State, 977 So.2d 794 (Fla 2d DCA 2008), the Second District Court of Appeal demonstrated clearly how the two-year Green window was intended to operate. In Ventura, the appellant pleaded guilty in 1994 to carrying a concealed weapon and driving while his license was suspended. Id. at 795. In September 2006, he filed a motion for postconviction relief asserting that he was not advised that his plea might subject him to deportation and that in July 2006 he was threatened with deportation. Id. His motion was dismissed without prejudice because of an outstanding arrest warrant. Id. Ventura refiled his motion in December 2006, which the trial court dismissed relying on Green, noting that Ventura filed his motion more than two years after his case was final. Id. On appeal to the Second District, Ven-tura argued that the trial court misread Green, to which the Second District agreed, stating:

Under Green a defendant such as Ven-tura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging “that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.”
The trial court’s requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green. Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation.

Ventura, 977 So.2d at 796-97 (citation omitted) (quoting Green, 944 So.2d at 219).

Canseco’s argument — that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea — is not supported by a logical reading of the opinion. If Canseco’s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart’s guidelines, would be eligible to file a motion to withdraw plea. Surely such a result was not this Court’s intent. Indeed, no district court has interpreted Green to provide such a result. Accordingly, we answer the certified question in the negative and approve the decision below.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Canseco was provided with an interpreter, but contends that he did not fully comprehend the written plea form that he signed.

      . See 8 U.S.C. § 1229a. (2006).

      . Rule 3.172(c)(8) provides:
      Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:
      (8) that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all casesf]
      Fla. R.Crim. P. 3.172(c)(8).

      . Prieto entered his plea on August 10, 1989, received notice that he would face deportation on October 17, 1995, but did not file his motion challenging his conviction until February 15, 2008. Prieto, 989 So.2d at 689.


text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE.
    No. SC10-148.
    Supreme Court of Florida.
    Sept. 8, 2010.

      Donald Edward Christopher, Chair, Civil Procedure Rules Committee, Orlando, FL, John F. Harkness, Jr., Executive Director and Ellen Sloyer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Steven G. Schwartz and David J. Pas-cuzzi of Schwartz and Horwitz, PLC, Boca Raton, FL; and Peter D. Webster, First District Court of Appeal, Tallahassee, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Civil Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Florida Bar Civil Procedure Rules Committee (committee) has filed its regular-cycle report of proposed amendments to the Florida Rules of Civil Procedure. The committee proposes the adoption of new Florida Rule of Civil Procedure 1.071 (Constitutional Challenge to State Statute or County or Municipal Charter, Ordinance, or Franchise; Notice by Party), new form 1.975 (Notice of Compliance When Constitutional Challenge is Brought), and new rule 1.285 (Inadvertent Disclosure of Privileged Materials), as well as amendments to rule 1.080 (Service of Pleadings and Papers); rule 1.100(c)(1) (Pleadings and Motions; Caption) and form 1.901 (Caption); rule 1.810 (Depositions Upon Oral Examination); rule 1.340 (Interrogatories to Parties); rule 1.351 (Production of Documents and Things Without Deposition); rule 1.360 (Examination of Persons); rule 1.410 (Subpoena); rule 1.420 (Dismissal of Actions); rule 1.442 (Proposals for Settlement); rule 1.470 (Exception Unnecessary; Jury Instructions); rule 1.480 (Motion for a Directed Verdict); rule 1.510 (Summary Judgment); rule 1.525 (Motions for Costs and Attorneys’ Fees); and form 1.923 (Eviction Summons/Residential). The committee also recommends deletion of forms 1.985 (Standard Jury Instructions) and 1.986 (Verdicts).

Prior to submission to the Court, the proposals were published for comment in The Florida Bar News. Several comments were received by the committee, and in response to those comments, minor revisions were made to some of the proposals. After submission to the Court, all of the committee’s proposed amendments were published once again for comment. Two comments were received, and the committee filed responses to those comments.

Upon consideration of the committee’s proposals, the comments filed by interested parties and the committee’s responses thereto, we adopt the amendments as proposed by the committee, with several modifications as more fully explained below.

First, the committee proposes amending subdivision (b) of rule 1.080 (Service of Pleadings and Papers) to treat service by hand delivery after 5:00 p.m. the same as service by mail. This proposal was prompted by the Third District Court of Appeal’s decision in Castillo v. Vlaminck de Castillo, 771 So.2d 609 (Fla. 3d DCA 2000). In that case, the district court noted that rule 1.080, as currently worded, can produce an unfair result because it treats a pleading as timely served if it was mailed at 11:59 p.m. on the last day for service but would not treat the pleading as timely served if it was hand delivered on the same day after 5:00 p.m. We agree with the committee that just as service by mail is complete upon mailing, service by hand delivery should be deemed complete on the day delivery is accomplished by one of the methods enumerated in rule 1.080(b). However, we do not agree that service by hand delivery should be equated to service by mail, such that it triggers the additional time for responsive pleadings after service by mail provided under rule 1.090(e). Accordingly, we adopt a modified version of the committee’s proposed amendment as follows:

(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to-have been made on the next day-that is-not a Saturday,.Sunday, or legal holidaycom-plete on the date of the delivery.

Second, in response to a request from the Florida Bar Attorney-Client Privilege Task Force, the committee proposed new rule 1.285, governing inadvertent disclosure of privileged materials. Proposed subdivision (d) of this rule, setting out factors the court may consider in resolving a dispute as to whether a privilege asserted under the rule is valid, may address an issue of substantive law that is not appropriately addressed in a rule of procedure. Thus, while we express no opinion on the substance of the committee’s proposal in this regard, we decline to adopt proposed subdivision (d) as part of new rule 1.285.

The Florida Rules of Civil Procedure are hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2011, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, J., concurs in result.

APPENDIX

RULE 1.071. CONSTITUTIONAL CHALLENGE TO STATE STATUTE OR COUNTY OR MUNICIPAL CHARTER, ORDINANCE, OR FRANCHISE; NOTICE BY PARTY

A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must promptly

(a) file a notice of constitutional question stating the question and identifying the paper that raises it; and

(b)serve the notice and the pleading, written motion, or other paper drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise on the Attorney General or the state attorney of the .judicial circuit in which the action is pending, by either certified or registered mail. Service of the notice and pleading, written motion, or other paper does not require joinder of the Attorney General or the state attorney as a party to the action.

Committee Notes

2010 Adoption. This rule clarifies that, with respect to challenges to a state statute or municipal charter, ordinance, or franchise, service of the notice does not require joinder of the Attorney General or the state attorney as a party to the action; however, consistent with section 86.091, Florida Statutes, the Florida Attorney General or applicable state attorney has the discretion to participate and be heard on matters affecting the constitutionality of a statute. See, e.g., Mayo v. National Truck Brokers, Inc., 220 So.2d 11 (Fla.1969); State ex rel. Shevin v. Kerwin, 279 So.2d 836 (Fla.1973) (Attorney General may choose to participate in appeal even though he was not required to be a party at the trial court). The rule imposes a new requirement that the party challenging the statute, charter, ordinance, or franchise file verification with the court of compliance with section 86.091, Florida Statutes. See form 1.975.

RULE 1.080. SERVICE OF PLEADINGS AND PAPERS

(a) [No change]

(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made-on the next day that is not a Saturday, Sunday, or legal-holidaycomplete on the date of the delivery.

(c) [No change]

(d) Filing. All original papers shall be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or other paper is not placed in the court file, a certified copy shall be so placed by the clerk.

(e)-(h) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 1.100. PLEADINGS AND MOTIONS

(a)-(b) [No change]

(c) Caption.

(1) Every pleading, motion, order, judgment, or other paper shall have a caption containing the name of the court, the file number, and except for in rem proceedings, including forfeiture proceedings, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be. In any in rem proceeding, every pleading, motion, order, judgment, or other paper shall have a caption containing the name of the court, the file number, the style “In re” (followed by the name or general description of the property), and a designation of the person or entity filing it and its nature or the nature of the order, as the case may be. In an in rem forfeiture proceeding, the style shall be “In re forfeiture of’ (followed by the name or general description of the property). All papers filed in the action shall be styled in such a manner as to indicate clearly the subject matter of the paper and the party requesting or obtaining relief.

(2)-(3) [No change]

(d) [No change]

Committee Notes

1971 Amendment. [No change]

1972 Amendment. [No change]

1992 Amendment. [No change]

2010 Amendment. Subdivision (c) is amended to address separately the caption for in rem proceedings, including in rem forfeiture proceedings.

RULE 1.285. INADVERTENT DISCLOSURE OF PRIVILEGED MATERIALS

(a) Assertion of Privilege as to Inadvertently Disclosed Materials. Any party, person, or entity, after inadvertent disclosure of any materials pursuant to these rules, may thereafter assert any privilege recognized by law as to those materials. This right exists without regard to whether the disclosure was made pursuant to formal demand or informal request. In order to assert the privilege, the party, person, or entity shall, within 10 days of actually discovering the inadvertent disclosure, serve written notice of the assertion of privilege on the party to whom the materials were disclosed. The notice shall specify with particularity the materials as to which the privilege is asserted, the nature of the privilege asserted, and the date on which the inadvertent disclosure was actually discovered.

(b) Duty of the Party Receiving Notice of an Assertion of Privilege. A party receiving notice of an assertion of privilege under subdivision (a) shall promptly return, sequester, or destroy the materials specified in the notice, as well as any copies of the material. The party receiving the notice shall also promptly notify any other party, person, or entity to whom it has disclosed the materials of the fact that the notice has been served and of the effect of this rule. That party shall also take reasonable steps to retrieve the materials disclosed. Nothing herein affects any obligation pursuant to R. Regulating Fla. Bar 4-4.4(b).

(c) Right to Challenge Assertion of Privilege. Any party receiving a notice made under subdivision (a) has the right to challenge the assertion of privilege. The grounds for the challenge may include, but are not limited to, the following:

(1) The materials in question are not privileged.

(2) The disclosing party, person, or entity lacks standing to assert the privilege.

(3) The disclosing party, person, or entity has failed to serve timely notice under this rule.

(4) The circumstances surrounding the production or disclosure of the materials warrant a finding that the disclosing party, person, or entity has waived its assertion that the material is protected by a privilege.

Any party seeking to challenge the assertion of privilege shall do so by serving notice of its challenge on the party, person, or entity asserting the privilege. Notice of the challenge shall be served within 20 days of service of the original notice given by the disclosing party, person, or entity. The notice of the recipient’s challenge shall specify the grounds for the challenge. Failure to serve timely notice of challenge is a waiver of the right to challenge.

(d) Effect of Determination that Privilege Applies. When an order is entered determining that materials are privileged or that the right to challenge the privilege has been waived, the court shall direct what shall be done with the materials and any copies so as to preserve all rights of appellate review. The recipient of the materials shall also give prompt notice of the court’s determination to any other party, person, or entity to whom it had disclosed the materials.

RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION

(a)[No change]

(b) Notice; Method of Taking; Production at Deposition.

(l)-(3) [No change]

(4) Any deposition may be recorded by videotape without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision.

(A) Notice. A party intending to videotape a deposition shall state in the notice that the deposition is to be videotaped and shall give the name and address of the operator. Any subpoena served on the person to be examined shall state the method or methods for recording the testimony.

(B)-(E) [No change]

(5) The notice to a party deponent may be accompanied by a request made in compliance with rule 1.350 for the production of documents and tangible things at the taking of the-deposition. The procedure of rule 1.350 shall apply to the request. Rule 1.351 provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents.

(6)-(8) [No change]

(c)-(h) [No change]

Committee Notes

1972 Amendment. [No ehange]

1976 Amendment. [No change]

1988 Amendment. [No change]

1992 Amendment. [No change]

1996 Amendment. [No change]

2010 Amendment. Subdivision (b)(5) is amended to clarify that the procedure set forth in rule 1.351 must be followed when requesting or receiving documents or things without testimony, from nonparties pursuant to a subpoena. The amendment is intended to prevent the use of rules 1.310 and 1.410 to request documents from nonparties pursuant to a subpoena without giving the opposing party the opportunity to object to the subpoena before it is served on the nonparty as required by rule 1.351.

Court Commentary

[No change]

RULE 1.340. INTERROGATORIES TO PARTIES

(a)Procedure for Use. Without leave of court, any party may serve upon any other party written interrogatories to be answered (1) by the party to whom the interrogatories are directed, or (2) if that party is a public or private corporation or partnership or association or governmental agency, by any officer or agent, who shall furnish the information available to that party. Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading upon that party. The interrogatories shall not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause. If the supreme court has approved a form of interrogatories for the type of action, the initial interrogatories on a subject included therein shall be infrom the form approved by the court. A party may serve fewer than all of the approved interrogatories within a form. Other interrogatories may be added to the approved forms without leave of court, so long as the total of approved and additional interrogatories does not exceed 30. Each interrogatory shall be answered separately and fully in writing under oath unless it is objected to, in which event the grounds for objection shall be stated and signed by the attorney making it. The party to whom the interrogatories are directed shall serve the answers and any objections within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the process and initial pleading upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under rule 1.380(a) on any objection to or other failure to answer an interrogatory.

(b)-(e) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 1.351. PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION

(a) Request; Scope. A party may seek inspection and copying of any documents or things within the scope of rule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things. This rule provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents or things pursuant to rule 1.310.

(b) [No change)

(c) Subpoena. If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production shall deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk shall issue the subpoena and deliver it to the party desiring production. Service within the state of Florida of a nonparty subpoena shall be deemed sufficient if it complies with rule 1.410(d) or if (1) service is accomplished by mail or hand delivery by a commercial delivery service, and (2) written confirmation of delivery, with the date of service and the name and signature of the person accepting the subpoena, is obtained and filed by the party seeking production. The subpoena shall be identical to the copy attached to the notice and shall specify that no testimony may be taken and shall require only production of the documents or things specified in it. The subpoena may give the recipient an option to deliver or mail legible copies of the documents or things to the party serving the subpoena. The person upon whom the subpoena is served may condition the preparation of copies on the payment in advance of the reasonable costs of preparing the copies. The subpoena shall require production only in the county of the residence of the custodian or other person in possession of the documents or things or in the county where the documents or things are located or where the custodian or person in possession usually conducts business. If the person upon whom the subpoena is served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule, and relief may be obtained pursuant to rule 1.310.

(d)-(f) [No change]

Committee Notes

1980 Adoption. [No change]

1996 Amendment. [No change]

2007 Amendment. [No change]

2010 Amendment. Subdivision (a) is amended to clarify that the procedure set forth in rule 1.351, not rule 1.310, shall be followed when requesting or receiving documents or things, without testimony, from nonparties pursuant to a subpoena.

RULE 1.360. EXAMINATION OF PERSONS

(a) Request; Scope.

(1) Any party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition which is the subject of the requested examination is in controversy.

(A) When the physical condition of a party or other person under subdivision (a)(1) is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action, and on any other person with or after service of the process and initial pleading on that party. The request shall specify a reasonable time, place, manner, conditions, and scope of the examination and the person or persons by whom the examination is to be made. The party to whom the request is directed shall serve a response within 30 days after service of the request, except that a defendant need not serve a response until 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. The response shall state that the examination will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated. If the examination is to be recorded or observed by others, the request or response shall also include the number of people attending, their role, and the method or methods of recording.

(B)-(C) [No change]

(2)-(3) [No change]

(b)-(c) [No change]

Committee Notes

[No change]

RULE 1.410. SUBPOENA

(a)-(c) [No change]

(d) Service. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made as provided by law. Proof of such service shall be made by affidavit of the person making service except as applicable under rule 1.351(c) for the production of documents and things by a nonparty without deposition, if not served by an officer authorized by law to do so.

(e) Subpoena for Taking Depositions.

(1) Filing a notice to take a deposition as provided in rule 1.310(b) or 1.320(a) with a certificate of service on it showing service on all parties to the action constitutes an authorization for the issuance of subpoenas for the persons named or described in the notice by the clerk of the court in which the action is pending or by an attorney of record in the action. The subpoena shall state the method for recording the testimony. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things that constitute or contain evidence relating to any of the matters within the scope of the examination permitted by rule 1.280(b), but in that event the subpoena will be subject to the provisions of rule 1.280(c) and subdivision (c) of this rule. Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written objection to inspection or copying of any of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. If objection has been made, the party serving the subpoena may move for an order at any time before or during the taking of the deposition upon notice to the deponent.

(2) [No change]

(f)-(h) [No change]

Committee Notes

[No change]

RULE 1.420. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal.

(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a non-jury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all current parties who have appeared feto the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

(2) [No change]

(b)-(c) [No change]

(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs. When one or more other claims remain pending following dismissal of any claim under this rule, taxable costs attributable solely to the dismissed claim may be assessed and .judgment for costs in that claim entered in the action, but only when all claims are resolved at the trial court level as to the party seeking taxation of costs. If a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

(e)-(f) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 1.442. PROPOSALS FOR SETTLEMENT

(a)-(b) [No change]

(c) Form and Content of Proposal for Settlement.

(l)-(B) [No change]

(4) Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.

(d)-(j) [No change]

Committee Notes

[No change]

RULE 1.470. EXCEPTIONS UNNECESSARY; JURY INSTRUCTIONS

(a) [No change]

(b) Instructions to Jury. The Florida Standard Jury Instructions appearing on the court’s website at www.floridasupreme court.org/jury — instructions/instructions. shtml shall be used by the trial judges of this state in instructing the jury in civil actions to the extent that the Standard Jury Instructions are applicable, unless the trial judge determines that an applicable Standard Jury Instruction is erroneous or inadequate. If the trial judge modifies a Standard Jury Instruction or gives such other instruction as the judge determines necessary to accurately and sufficiently instruct the jury, upon timely objection to the instruction, the trial judge shall state on the record or in a separate order the legal basis for varying from the Standard Jury Instruction. Similarly, in all circumstances in which the notes accompanying the Florida Standard Jury Instructions contain a recommendation that a certain type of instruction not be given, the trial judge shall follow the recommendation unless the judge determines that the giving of such an instruction is necessary to accurately and sufficiently instruct the jury, in which event the judge shall give such instruction as the judge deems appropriate and necessary. If the trial judge does not follow such a recommendation of the Florida Standard Jury Instructions, upon timely objection to the instruction, the trial judge shall state on the record or in a separate order the legal basis of the determination that such instruction is necessary. Not later than at the close of the evidence, the parties shall file written requests that the court instruct the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the instructions to be given. At such conference, all objections shall be made and ruled upon and the court shall inform counsel of such instructions as it will give. No party may assign as error the giving of any instruction unless that party objects thereto at such time, or the failure to give any instruction unless that party requested the same. The court shall orally instruct the jury before or after the arguments of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. The court shall provide each juror with a written set of the instructions for his or her use in deliberations. The court shall file a copy of such instructions.

(c) [No change]

Committee Notes

1988 Amendment. [No change]

2010 Amendment. Portions of form 1.985 were modified and moved to subdivision (b) of rule 1.470 to require the court to use published standard instructions where applicable and necessary, to permit the judge to vary from the published standard jury instructions and notes only when necessary to accurately and sufficiently instruct the jury, and to require the parties to object to preserve error in variance from published standard jury instructions and notes.

RULE 1.480. MOTION FOR A DIRECTED VERDICT

(a)[No change]

(b) Reservation of Decision on Motion. When a motion for a directed verdict>-made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 10 days after discharge of the jury.

(c) [No change]

Committee Notes

1996 Amendment. [No change]

2010 Amendment. Subdivision (b) is amended to conform to 2006 changes to Federal Rule of Civil Procedure 50(b) eliminating the requirement for renewing at the close of all the evidence a motion for directed verdict already made at the close of an adverse party’s evidence.

RULE 1.510. SUMMARY JUDGMENT

(a)-(b) [No change]

(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time cepiesa copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent suehthat summary judgment evidence has not already been filed with the court, the adverse party shall serve eepiesa copy on the movant by mailing themmail at least 5 days prior to the day of the hearing, or by delivering-themdeliv-ery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadingSj-depo-sitions, answers-tQ-interrogatories--and-ad-missions, 'affidavits, and other materials as would-be admissible in and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(d)-(g) [No change]

Committee Notes

[No change]

RULE 1.525. MOTIONS FOR COSTS AND ATTORNEYS’ FEES

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

Committee Notes

[No change]

Court Commentary

[No change]

FORM 1.901. CAPTION

(a)General Form.

(name of court)

A. B„ )

Plaintiff, )

)

-vs- ) No.

)

C. D„ )

Defendant )

(designation of pleading)

(b) Petition.

(name of court)

In re the Petition )

of A.B. for (type of ) No.

relief) )

PETITION FOR (type of relief)

(c) In rem proceedings.

(name of court)

In re (name or general))

description of property) ) No.

(designation of pleading)

(d)Forfeiture proceedings.

(name of court)

In re (name or general))

description of property) ) No.

(designation of pleading)

Committee Notes

1980 Amendment. Subdivision (b) is added to show the form of caption for a petition.

2010 Amendment. Subdivisions (c) and (d) are added to show the form of caption for in rem proceedings, including in rem forfeiture proceedings.

FORM 1.923. EVICTION SUMMONS/ RESIDENTIAL

EVICTION SUMMONS/RESIDENTIAL

TO: .

Defendant(s)

PLEASE READ CAREFULLY

You are being sued by . to require you to move out of the place where you are living for the reasons given in the attached complaint.

You are entitled to a trial to determine whether you can be required to move, but you MUST do ALL of the things listed below. You must do them within 5 days (not including Saturday, Sunday, or any legal holiday) after the date these papers were given to you or to a person who lives with you or were posted at your home.

THE THINGS YOU MUST DO ARE AS FOLLOWS:

(1)Write down the reason(s) why you think you should not be forced to move. The written reason(s) must be given to the clerk of the court at .County Courthouse

., Florida

(2)Mail or give a copy of your written reason(s) to:

Plaintiff/Plaintiffs Attorney

Address

(3)Pay to the clerk of the court the amount of rent that the attached complaint claims to be due and any rent that becomes due until the lawsuit is over. If you believe that the amount claimed in the complaint is incorrect, you should file with the clerk of the court a motion to have the court determine the amount to be paid. If you file a motion, you must attach to the motion any documents supporting your position and mail or give a copy of the motion to the plaintiff/plaintiffs attorney.

(4)If you file a motion to have the court determine the amount of rent to be paid to the clerk of the court, you must immediately contact the office of the judge to whom the case is assigned to schedule a hearing to decide what amount should be paid to the clerk of the court while the lawsuit is pending.

IF YOU DO NOT DO ALL OF THE THINGS SPECIFIED ABOVE WITHIN 5 WORKING DAYS AFTER THE DATE THAT THESE PAPERS WERE GIVEN TO YOU OR TO A PERSON WHO LIVES WITH YOU OR WERE POSTED AT YOUR HOME, YOU MAY BE EVICTED WITHOUT A HEARING OR FURTHER NOTICE

(5)If the attached complaint also contains a claim for money damages (such as unpaid rent), you must respond to that claim separately. You must write down the reasons why you believe that you do not owe the money claimed. The written reasons must be given to the clerk of the court at the address specified in paragraph (1) above, and you must mail or give a copy of your written reasons to the plaintiff/plaintiffs attorney at the address specified in paragraph (2) above. This must be done within 20 days after the date these papers were given to you or to a person home. This obligation is separate from the requirement of answering the claim for eviction within 5 working days after these papers were given to you or to a person who lives with you or were posted at your home.

THE STATE OF FLORIDA:

To Each Sheriff of the State: You are commanded to serve this summons and a copy of the complaint in this lawsuit on the above-named defendant.

DATED on.

Clerk of the County Court

By-

As Deputy Clerk

NOTIFICACION DE DESALOJO/RESIDENCIAL

A: .

Demandado(s)

SIRVASE LEER CON CUIDADO

Usted esta siendo demandado por . para exigirle que desaloje el lugar donde reside por los moti-vos que se expresan en la demanda adjun-ta.

Usted tiene derecho a ser sometido a juicio para determinar si se le puede exigir que se mude, pero ES NECESARIO que haga TODO lo que se le pide a continua-ción en un plazo de 5 dias (no incluidos los sábados, domingos, ni dias feriados) a par-tir de la fecha en que estos documentos se le entregaron a usted o a una persona que vive con usted, o se colocaron en su casa.

USTED DEBERA HACER LO SI-GUIENTE:

(1)Escribir el (los) motivo(s) por el (los) cual(es) cree que no se le debe obligar a mudarse. El (Los) motivo(s) debera(n) en-tregarse por escrito al secretario del tribunal en el . County Courthouse

., Florida

(2)Enviar por correo o darle su(s) moti-vo(s) por escrito a:

Demandante/Abogado del Demandante

Dirección

(3) Pagarle al secretario del tribunal el monto del alquiler que la demanda adjunta reclama como adeudado, asi como cualquier alquiler pagadero hasta que concluya el litigio. Si usted considera que el monto reclamado en la demanda es incorrecto, deberá presentarle al secretario del tribunal una mocion para que el tribunal determine el monto que deba pagarse. Si usted presenta una mocion, deberá adjuntarle a esta cualesquiera documentos que respal-den su posición, y enviar por correo o entregar una copia de la misma al deman-dante/abogado del demandante.

(4) Si usted presenta una mocion para que el tribunal determine el monto del alquiler que deba pagarse al secretario del tribunal, deberá comunicarse de inmediato con la oficina del juez al que se le haya asignado el caso para que programe una audiencia con el fin de determinar el mon-to que deba pagarse al secretario del tribunal mientras el litigio este pendiente.

SI USTED NO LLEVA A CABO LAS ACCIONES QUE SE ESPECIFICAN ANTERIORMENTE EN UN PLAZO DE 5 DIAS LABORABLES A PARTIR DE LA FECHA EN QUE ESTOS DOCU-MENTOS SE LE ENTREGARON A USTED O A UNA PERSONA QUE VIVE CON USTED, O SE COLOQUEN EN SU CASA, SE LE PODRA DESALO-JAR SIN NECESIDAD DE CELEBRAR UNA AUDIENCIA NI CURSARSELE OTRO AVISO

(5) Si la demanda adjunta también in-cluye una reclamación por danos y perjuic-ios pecunarios (tales como el incumpli-miento de pago del alquiler), usted deberá responder a dicha reclamación por separa-do. Deberá exponer por escrito los moti-vos por los cuales considera que usted no debe la suma reclamada, y entregarlos al secretario del tribunal en la dirección que se especifica en el párrafo (1) anterior, asi como enviar por correo o entregar una copia de los mismos al demandante/aboga-do del demandante en la dirección que se especifica en el párrafo (2) anterior. Esto deberá llevarse a cabo en un plazo de 20 dias a partir de la fecha en que estos documentos se le entregaron a usted o a una persona que vive con usted, o se-colo-quen--en.su casa. Esta obligación es aparte del requisito de responder a la de-manda de desalojo en un plazo de 5 dias a partir de la fecha en que estos documentos se le entregaron a usted o a una persona que vive con usted, o se coloquen en su casa.

CITATION

D’EVICTION/RESIDENTIELLE

A: .

Defendeur(s)

A: .

A: .

LISEZ ATTENTIVEMENT

Vous etes poursuivi par . pour exiger que vous evacuez les lieux de votre residence pour les raisons enumerees dans la plainte ci-dessous.

Vous avez droit a un proces pour determiner si vous devez demenager, mais vous devez, au prealable, suivre les instructions enumerees ci-dessous, pendant les 5 jours (non compris le samedi, le dimanche, ou un jour ferie) a partir de la date ou ces documents ont ete donnes a vous ou a la personae vivant avec vous, ou ont ete affíches a votre residence.

LISTE DES INSTRUCTIONS A SUIVRE:

(1)Enumerer par ecrit les raisons pour lesquelles vous pensez ne pas avoir a de-menager. Elies doivent etre remises au clerc du tribunal a. County Courthouse

., Florida

(2)Envoyer ou donner une copie au:

Plaignant/Avocat du Plaignant

Adresse

(3) Payer au clerc du tribunal le mon-tant des loyers dus comme etabli dans la plainte et le montant des loyers dus jus-qu’a la fin du proces. Si vous pensez que le montant etabli dans la plainte est incorrect, vous devez presenter au clerc du tribunal une demande en justice pour determiner la somme a payer. Pour cela vous devez attaeher a la demande tous les documents soutenant votre position et faire parvenir une copie de la demande au plaig-nant/avocat du plaignant.

(4) Si vous faites une demande en justice pour determiner la somme a payer au clerc du tribunal, vous devrez immediatement prevenir le bureau de juge qui pre-sidera au proces pour fixer la date de l’audience qui decidera quelle somme doit etre payee au clerc du tribunal pendant que le proces est en cours.

SI VOUS NE SUIVEZ PAS CES INSTRUCTIONS A LA LETTRE DANS LES 5 JOURS QUE SUIVENT LA DATE OU CES DOCUMENTS ONT ETE REMIS A VOUS OU A LA PER-SONNE HABITANT AVEC VOUS, OU ONT ETE AFFICHES A VOTRE RESIDENCE, VOUS POUVEZ ETRE EX-PULSES SANS AUDIENCE OU SANS AVIS PREALABLE

(5) Si la plainte ci-dessus contient une demande pour dommages pecuniaires, tels des loyers ameres, vous devez y repondré separement. Vous devez enumerer par ecrit les raisons pour lesquelles vous esti-mez ne pas devoir le montant demande. Ces raisons ecrites doivent etre donnees au clerc du tribunal a l’adresse specifiee dans le paragraphe (1) et une copie de ces raisons donnee ou envoyee au plaig-nant/avoeat du plaignant a l’adresse speci-fiee dans le paragraphe (2). Cela doit etre fait dans les 20 jours suivant la date ou ces documents ont ete presentes a vous ou a la personne habitant avec vous, ou affiches a votre residence. Cette obligation ne fait pas partie des instructions a suivre en reponse au proces d’eviction dans Ies 5 jours suivant la date ou ces documents ont ete presentes a vous ou a la personne habitant avec vous, ou affiches a votre residence.

Committee Notes

1988 Adoption. This form was added to inform those sought to be evicted of the procedure they must follow to resist eviction.

1996 Amendment. This is a substantial revision of form 1.923 to comply with the requirements of section 83.60, Florida Statutes, as amended in 1993.

FORM 1.975. NOTICE OF COMPLIANCE WHEN CONSTITUTIONAL CHALLENGE IS BROUGHT

NOTICE OF COMPLIANCE WITH SECTION 86.091, FLORIDA STATUTES

The undersigned hereby gives notice of compliance with Fla. R. Civ. P. 1.071, with respect to the constitutional challenge brought pursuant to.(Florida statute, charter, ordinance, or franchise challenged). The undersigned complied by serving the.(Attorney General for the state of Florida or State Attorney for the.Judicial Circuit).with a copy of the pleading or motion challenging .(Florida statute, charter, ordinance, or franchise challenged)., by .(certified or registered mail).on .(date).

Attorney for.

Florida Bar No.

Address.

Telephone No.

Committee Notes

2010 Adoption. This form is to be used to provide notice of a constitutional challenge as required by section 86.091, Florida Statutes. See rule 1,071. This form is to be used when the Attorney General or the State Attorney is not a named party to the action, but must be served solely in order to comply with the notice requirements set forth in section 86.091.

FORM 1.985= — STANDARD JURY — INSTRUCTIONS

The forms of-FIoi-ida Standard Jury-Instructions published-by The Florida-Ba-r pursuanbto authority of the supreme court may be used-by-the-trial judges-of — ⅛⅛ state in charging-the-j-ury in civil actions to the extent that-fhe-ferms are applicable, unless the trial-judge-determines-that-an applicaMe-fom-of-instruction is erroneous or inadequate. — ⅛—that-event the trial judge-shall-modify the form or-give such other insinuation-as the judge -determines necessary to accurately and sufficiently instruct the jury in-the circumstanees-of-the action- — I-n-that-event the trial -judge-shall state-on the record-or-in-a-separate order the manner in which the judge-finds-the standard-form erroneous or -inadequate and the legal basis of that finding- — Similarly^-in all circumstances in^wfaieh — the notes-accompanying the Florida Standard Jury-Iastr-uctions contain a recommendation that a certain-type of instruction not be given,- the triab-judge-may follow the recommendation unless the judge-determines that the giving of such -an-instruction is necessary to accurately-and-sufficiently-instruct the — jury, in whieh-event the judge shall give-such instruetien-as-the judge-deems appropriate and -necessary. In that, event the trial judge shall-state on the reeo-rd-or-on a separate order the legal basis ■ of the determination that-such instruction is necessary.

FORM 1.986. VERDICTS

In all civil actions tried to a jury, the parties should refer to the model verdict forms contained in the Florida Standard Jury Instructions in Civil Cases, as applicable.

(a)-For P1 ai n tiffc-D am ages.

VERDICT

WE,-the jury, find--for plaintiff-and-assess h-igdiei-damages at $.. .■..

DATED on.

as Foreperson

(b)-For Defendant; -General Form,

VERDICT

WE, the jury-find for defendant.

DATED on-.,.

as-Forepersen