author: ORFINGER, C.J.

text:
    Shannon MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1500.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

“Music, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). This protection extends to amplified music. See Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) (holding use of sound amplification equipment within reasonable limits is aspect of free speech protected by First Amendment). Shannon Montgomery exercised his right to play loud music from his car with great enthusiasm — enough in fact to draw the attention of the police who pulled him over for a noise violation. When it was discovered that his driver’s license was suspended, he was arrested and his car was searched. The police found drugs and drug paraphernalia in the car.

After being charged with trafficking in cocaine 28 grams or more, driving while license revoked as a habitual offender, possession of cannabis 20 grams or less, and possession of drug paraphernalia, Montgomery filed a motion to suppress, contending that the evidence was illegally obtained. Specifically, Montgomery asserted that Florida’s noise statute, section 316.3045(l)(a), Florida Statutes (2005), was unconstitutionally vague and overbroad and restricted his right of free expression. Section 316.3045, Florida Statutes (2005), provides, in pertinent part:

Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions.—
(1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmak-ing device or instrument from within the motor vehicle so that the sound is:
(a) Plainly audible at a distance of 25 feet or more from the motor vehicle;
(3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated.

Following a hearing, the trial court denied Montgomery’s motion. Montgomery then entered a plea of nolo contendere, reserving his right to appeal the court’s denial of the dispositive motion to suppress.

Standard of Review

A trial court’s decision regarding the constitutionality of a statute is reviewed de novo as it presents a pure question of law. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492, 500 (Fla.2003); State v. Hanna, 901 So.2d 201, 204 (Fla. 5th DCA 2005) (“The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review.”). There is a strong presumption that a statute is constitutionally valid, and all reasonable doubts about the statute’s validity must be resolved in favor of constitutionality. See DuFresne v. State, 826 So.2d 272, 274 (Fla.2002); Adhin v. First Horizon Home Loans, 44 So.3d 1245, 1250 (Fla. 5th DCA 2010). As a result, the party challenging the constitutionality of a statute bears a heavy burden of establishing its invalidity. See Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999).

Vagueness

Montgomery argues that the statute’s “plainly audible” standard is imper-missibly vague and fails to provide fair notice to an ordinary person of what conduct is prohibited. Montgomery finds support for his vagueness challenge in Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863, 867 (Fla. 2d DCA 1996). In Easy Way, the “plainly audible” standard in a county noise ordinance was found to be unconstitutionally vague and overbroad. More recently, in State v. Catalano, 60 So.3d 1139, 1143-14 (Fla. 2d DCA 2011), the Second District Court of Appeal again addressed the “plainly audible” standard in a challenge to section 316.3045, writing:

The challenge in Easy Way was a facial challenge. 674 So.2d at 863. Although the court did quote the Reevesfv. McConn, 631 F.2d 377, 385 (5th Cir. 1980),] language cited above, it also stated that “the ordinance does not define its crucial terms ‘plainly audible’ so as to secure against arbitrary enforcement.” Id. at 866. The court reasoned that the “plainly audible” standard represented the subjective standard that was discussed in the Reeves decision— “any individual person ‘within the area of audibility’ happens to find personally ‘disturbing,’ ” —not because the term “plainly audible” was being applied subjectively, but because the term “plainly audible” was a subjective term on its face; thus, the court found it vague. Id. at 867.

But, Montgomery correctly observes that this Court rejected a vagueness challenge to an earlier version of section 316.3045 in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998), explaining:

This noise code is not vague. One may not play his or her car radio so loudly that it is plainly audible to another standing 100 feet or further away. Noise ordinances based on distances beyond which the sound may not be audible have been upheld. See State v. Ewing, 81 Hawai'i 156, 914 P.2d 549 (1996); City of Portland v. Ayers, 93 Or.App. 731, 764 P.2d 556 (1988), rev. denied, 308 Or. 79, 775 P.2d 322 (1989).

Id. at 636.

When considering the constitutionality of a statute, we first look at the language of the statute itself. See State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996); Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). Section 316.3045(l)(a) provides, in pertinent part, that “[i]t is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is ... [pjlainly audible at a distance of 25 feet or more from the motor vehicle.... ”

Although the phrase “plainly audible” is not defined by statute, pursuant to section 316.3045(4), the Department of Highway Safety and Motor Vehicles has promulgated rules defining “plainly audible” and established standards for how sound is measured by law enforcement personnel enforcing the statute. See Fla. Admin. Code R. 15B-13.001 (adopted Nov. 21, 2006). Specifically, rule 15B-13.001 states:

15B-13.001. Operation of Soundmak-ing Devices in Motor Vehicles.
(1)The purpose of this rule is to set forth the definition of the term “plainly audible” and establish standards regarding how sound should be measured by law enforcement personnel who enforce Section 316.3045, F.S.
(2) “Plainly Audible” shall mean any sound produced by a radio, tape player, or other mechanical or electronic sound-making device, or instrument, from within the interior or exterior of a motor vehicle, including sound produced by a portable soundmaking device, that can be clearly heard outside the vehicle by a person using his normal hearing faculties, at a distance of twenty-five feet (25 § ) or more from- the motor vehicle.
(3) Any law enforcement personnel who hears a sound that is plainly audible, as defined herein, shall be entitled to measure the sound according to the following standards:
(a) The primary means of detection shall be by means of the officer’s ordinary auditory senses, so long as the officer’s hearing is not enhanced by any mechanical device, such as a microphone or hearing aid.
(b) The officer must have a direct line of sight and hearing, to the motor vehicle producing the sound so that he can readily identify the offending motor vehicle and the distance involved.
(c) The officer need not determine the particular words or. phrases being produced or the name of any song or artist producing the sound. The detection of a rhythmic bass reverberating type sound is sufficient to constitute a plainly audible sound.
(d) The motor vehicle from which the sound is produced must be located upon (stopped, standing or moving) any street or highway as defined by Section 316.002(53), F.S. Parking lots and driveways are included when any part thereof is open to the public for purposes of vehicular traffic.
(4) The standards set forth in subsection (3) above shall also apply to the detection of sound that is louder than necessary for the convenient hearing of persons inside the motor vehicle in areas adjoining churches, schools, or hospitals.

See also Webster’s Tenth New Collegiate Dictionary 75, 886 (10th ed. 2000) (defining “plain” as “clear” and “audible” as “heard or capable of being heard”).

A vague statute is one that fails to give a person of common intelligence fair and adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement. Brown v. State, 629 So.2d 841, 842 (Fla.1994); Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So.2d 1351, 1353 (Fla.1984). A statute is not unconstitutionally vague if the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Brown, 629 So.2d at 842 (citations omitted). We believe the statute here provides fair notice of the prohibited conduct: it is a violation to operate or amplify the sound inside a vehicle in the state of Florida, so that it is capable of being clearly heard outside of the vehicle at a distance greater than 25 feet. The distance standard provides an explicit guideline to those charged with enforcing the statute. If a law enforcement officer can hear sounds at or beyond the specified distance using his normal sense of hearing, the statute has been violated. See Davis, 710 So.2d at 636. And, we believe that the “plainly audible” standard is no less precise than the “loud and raucous” standard approved by the United States Supreme Court in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428-29, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), which stated that “a prohibition against the use of sound trucks emitting ‘loud and raucous’ noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising.”

Overbreadth

“[T]he doctrines of overbreadth and vagueness are separate and distinct.” Se. Fisheries Ass’n, 453 So.2d at 1353. The overbreadth doctrine applies when legislation criminalizes constitutionally protected activities along with unprotected activities, by sweeping too broadly and infringing upon fundamental rights. See Firestone v. News-Press Publ’g Co., 538 So.2d 457, 459 (Fla.1989). In the context of the First Amendment, an overbroad statute is one that restricts protected speech or conduct along with unprotected speech or conduct. State v. Montas, 993 So.2d 1127, 1129 (Fla. 5th DCA 2008); Shapiro v. State, 696 So.2d 1321, 1324 (Fla. 4th DCA 1997); see State v. Bryant, 953 So.2d 585, 587 (Fla. 1st DCA 2007) (“Legislation is overbroad when it is drafted in a manner that may be applied to conduct protected by the First Amendment.”). “The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); see City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985); Montas, 993 So.2d at 1129. As the United States Supreme Court explained, “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

Due to the importance of the interests that the doctrine of overbreadth protects, litigants need not meet the traditional requirement of standing. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Even “an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face” on the ground that the rights of others not before the court may be unconstitutionally inhibited. Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). This is premised on the judicial assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally-protected speech or expression rather than undertake to have the law declared partially invalid. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); Broadrick, 413 U.S. at 612, 93 S.Ct. 2908; Sult v. State, 906 So.2d 1013, 1019 (Fla.2005); Wyche v. State, 619 So.2d 231, 235 (Fla.1993).

Restrictions on First Amendment rights must be supported by a compelling governmental interest, and must be narrowly drawn to insure that there is no more infringement than is necessary. Firestone, 538 So.2d at 459. At the same time, we recognize that the overbreadth doctrine is an unusual remedy that must be used sparingly, particularly where the challenged statute is primarily meant to regulate conduct and not merely speech. Broadrick, 413 U.S. at 615, 93 S.Ct. 2908; Schmitt v. State, 590 So.2d 404, 411-12 (Fla.1991); Montas, 993 So.2d at 1130. Accordingly, in considering an overbreadth challenge, a court must determine whether the statute inhibits First Amendment rights, and, if so, whether the impact on such rights is substantial. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). If the statute does not “reach[ ] a substantial amount of constitutionally protected conduct,” then the overbreadth claim fails. Id.

In Davis, this Court wrote:

Davis’ free speech argument is also unavailing. The ordinance addresses noise not speech. In Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068-69, 82 L.Ed.2d 221 (1984), the United States Supreme Court held that it is appropriate to impose reasonable restrictions on the time, place, and manner of protected speech. In order for the regulation to be valid, it must: (1) be content neutral; (2) narrowly tailored; and (3) leave open alternative channels. The ordinance herein does not address content at all; it narrows its application to sounds that are plainly audible 100 feet or further away; and it permits one to listen to anything he or she wishes so long as it cannot be heard at the prohibited distance. In other words, the statute permits one to listen to anything he or she pleases, although not as loudly as one pleases....

710 So.2d at 636. The State thus argues that since the statute does not impinge upon Montgomery’s right to free speech, it is not subject to an overbreadth analysis. We disagree and believe that Davis is distinguishable, in part because it dealt with a prior version of the statute. More importantly, Davis did not involve a content-based claim as Montgomery makes here. See Cannon v. City of Sarasota, No. 8:09-CV-739-T-33TBM, 2010 WL 962934, at *3 (M.D.Fla. Mar. 16, 2010) (questioning continued viability of Davis in light of change to statute and lack of content-based claim).

As previously discussed, music, including amplified music, is protected under the First Amendment. See Ward, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661; Saia, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574. Nonetheless, the government can constitutionally restrict such expression, even in a public place, if the limitations on the time, place, and manner of the protected speeeh are reasonable. The restrictions must be “justified without reference to the content of the regulated speech, ... narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information.” Ward, 491 U.S. at 791, 109 S.Ct. 2746 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).

Section 316.3045(1)(a) is not content neutral, and therefore, a strict scrutiny standard of judicial review applies. See, e.g., Simmons v. State, 944 So.2d 317, 323 (Fla.2006). The statute excepts from its reach all amplified business or political speech. However, business or commercial speech has consistently been given less protection than noncommercial speech. See generally Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (“[0]ur recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech.”); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562-63, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (“The Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”). By giving more protection to commercial than to noncommercial speech, this statute inverts a well-established constitutional principle. See Metromedia, 453 U.S. at 512-13, 101 S.Ct. 2882 (plurality opinion, finding that city could not conclude communication of commercial information concerning goods and' services connected with particular site is of greater value than communication of noncommercial messages). In this case, music or a religious message amplified so as to be heard twenty-five feet away from a vehicle would violate the statute, while a sound truck blaring “Eat at Joe’s” or “Vote for Smith” plainly audible at a great distance, would be authorized. Clearly, the statute discriminates on the basis of content, not noise.

The Second District reached the same conclusion in Catalano, and found that section 316.3045 was unconstitutionally over-broad as a content-based restriction on free expression. The court determined that the statute violates the First Amendment since the volume of commercial and political messages poses the same concern to the public as any other noise. The court explained:

Analysis of the regulation of speech begins with whether the regulation is content-based or content-neutral. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268-69 (11th Cir.2006). An intermediate level of judicial scrutiny is used where the regulation is unrelated to content. Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 642-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). On the other hand, where a regulation suppresses, disadvantages or imposes differential burdens upon speech because of its content, “the most exacting scrutiny” must be applied. Id. Such content-based discrimination is “presumptively impermissible” and will be upheld only if it is narrowly tailored to serve a compelling state interest with the least possible burden on expression. City of Ladue v. Gilleo, 512 U.S. 43, 59, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994); Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., 512 U.S. at 641, 114 S.Ct. 2445.
In DA Mortgage[ Inc. v. City of Miami, 486 F.3d 1254 (11th Cir.2007) ], the court upheld a county noise ordinance because it was content-neutral, was narrowly tailored to achieve a significant government interest, and left open ample alternative channels of communication. 486 F.3d at 1266-69. In upholding the statute against a challenge of being content-based, the court stated:
Accordingly, when we apply this standard to the ordinance at issue, we find, as the district court did, that the ordinance is content-neutral. On its face, it does not disallow certain types of recorded noise or particular viewpoints. It does not distinguish, for example, between excessively loud singing, thunderous classical music recordings, reverberating bass beats, or television broadcasts of raucous World Cup soccer finals. It simply prohibits excessively loud noise from recorded sources, whether radio, television, phonographs, etc.
Id. at 1266. Unlike the statute in DA Mortgage, the statute in our case does distinguish between different types of recorded noise or particular viewpoints.
A case that is directly on point, and was cited favorably in Cannon, is People v. Jones, 188 Ill.2d 352, 242 Ill.Dec. 267, 721 N.E.2d 546 (1999). In that case, the court held that a sound amplification statute, which prohibited the use of sound amplification systems in motor vehicles that could be heard from a specified distance away from a vehicle and which contained an exception for vehicles engaged in advertising, was a content-based regulation of speech, in violation of the First Amendment. Id. at 551 — 51[sic]. In Jones, the Illinois Supreme Court, citing Carey v. Brown, 447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), noted that “generally, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based.” Id. at 550, 100 S.Ct. 2286. The court struck the statute, finding, “the statute favors advertising messages over other messages by allowing only the former to be broadcast at a particular volume.” Id. at 552, 100 S.Ct. 2286. In so ruling, the court rejected the State’s argument that the statute was content-neutral because it was not enacted with the purpose of discriminating against any particular expression. Id. The fundamental problem with the analysis, according to the court, was that “on its face” the statute discriminated based on content. Id. This is the same fundamental problem with the statute in our case.
Finally, the United States Supreme Court discussed the content-neutrality requirement for permissible “time, place or manner” regulations in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 128 L.Ed.2d 99 (1993). In that case, the city refused to allow distribution of commercial publications through freestanding newsracks on public property but allowed the distribution of newspapers in that manner. Id. at 412-14, 113 S.Ct. 1505. The city argued that its regulation was designed to limit the total number of newsracks, for reasons of safety and aesthetics. Id. at 428-29, 113 S.Ct. 1505. Therefore, according to the city, the regulation was a permissible time, place and manner restriction. Id. The Court rejected this argument. Id. In so ruling, the Court gave the following illustration which is instructive in our case: “[A] prohibition against the use of sound trucks emitting ‘loud and raucous’ noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising.” Id. at 428-29, 113 S.Ct. 1505 (emphasis added) (citing Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949)).
Turning our attention to the Florida statute at issue, on its face it is not content neutral. The statute excepts from its provisions “motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices.” § 316.3045(3). In other words, an individual using a vehicle for business purposes could, for example, listen to political talk radio at a volume clearly audible from a quarter mile; however, an individual sitting in a personal vehicle that is parked next to the business vehicle is subject to a citation if the individual is listening to music or religious programming that is clearly audible at twenty-five feet. Clearly, different forms of speech receive different treatment under the Florida statute. That is, the statute in question does not “apply equally to music, political speech and advertising,” which is what the Supreme Court requires in order for the statute to be deemed, “content-neutral.” See City of Cincinnati, 507 U.S. at 428, 113 S.Ct. 1505.
Given that the statute is a content-based restriction on protected expression, it is presumptively invalid and may be upheld only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Jones, 242 Ill.Dec. 267, 721 N.E.2d at 550. We fail to see how the interests asserted by the State are better served by the statute’s exemption for commercial and political speech. As in Jones, the State provides no explanation as to why a noncommercial message broadcast at a particular volume poses a danger to the public, while a commercial or political message does not. Further, as with the statute in Jones, the Florida statute is peculiar in protecting commercial speech to a greater degree than noncommercial speech. Commercial speech is typically in a “subordinate position” in the scale of First Amendment values. U.S. v. Edge Broad. Co., 509 U.S. 418, 430, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993).

Catalano, 60 So.3d at 1145-46. We agree with this analysis and find, as did the Second District, that the statute is a content-based restriction on free expression, which violates protected First Amendment rights in a manner more intrusive than necessary. As a result, while the statute is not unconstitutionally vague, we agree with Catalano that the statute is unconstitutionally overbroad.

Good Faith

Finally, we must consider whether the police officer’s good faith reliance on the statute serves as an exception to the exclusionary rule. The exclusionary rule is a judicially-created remedy adopted to protect Fourth Amendment rights by deterring illegal searches and seizures. Davis v. United States, — U.S. -, -, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011). It is intended to deter police misconduct, not to remedy the prior invasion of a defendant’s constitutional rights. Because the primary purpose of the exclusionary rule is to “deter future unlawful conduct,” Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the rule has not been applied in certain circumstances, such as when an officer acts in objectively reasonable reliance on a subsequently invalidated statute, Illinois v. Krull, 480 U.S. 340, 355, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987).

Applying the objective standard of reasonableness mandated by Krull to the facts presented here, we conclude that a reasonable officer would not have known that section 316.3045(1)(a) was unconstitutional at the time that Montgomery’s vehicle was stopped for playing excessively loud amplified music. This is particularly true because in Davis, this Court upheld an earlier version of the statute against a constitutional challenge. Exclusion of the drugs and drug paraphernalia found in Montgomery’s car would have no deterrent effect on future police misconduct whatsoever. See United States v. Master, 614 F.3d 236, 243 (6th Cir.2010) (noting that Supreme Court’s recent jurisprudence “weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized, than toward excluding evidence in order to deter police misconduct unless the officers engaged in ‘deliberate, reckless, or grossly negligent conduct’ ”) (internal citation omitted)). Instead, applying the exclusionary rule in this case would deprive the State of the benefit of evidence obtained as a result of the officer’s good faith conduct. United States v. Leon, 468 U.S. 897, 907-08, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984) (“Particularly when law enforcement officers have acted in objective good faith ..., the magnitude of the benefit conferred on such guilty defendants [by the exclusionary rule] offends basic concepts of the criminal justice system.”). Accordingly, although we conclude that Montgomery suffered a Fourth Amendment violation, he is not entitled to suppression of the drugs and drug paraphernalia, and the suppression motion was properly denied. See United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (recognizing that exclusionary rule’s primary purpose is to deter future unlawful police conduct, not repair it, and thus, not designed to safeguard personal constitutional right of party aggrieved).

AFFIRMED.

PALMER and EVANDER, JJ., concur.

      . After Davis, the Florida Legislature amended section 316.3045(1 )(a) by reducing the "plainly audible” distance from 100 feet to 25 feet. See ch. 05-164, § 9, Laws of Fla., eff. July 1, 2005.

      . Our holding is consistent with decisions of other states upholding statutes that prohibit audible noises based on a distance standard. See, e.g., Moore v. City of Montgomery, 720 So.2d 1030, 1032 (Ala.Crim.App.1998) (holding ordinance that prohibited noise audible 5 feet from vehicle not unconstitutionally vague); People v. Hodges, 70 Cal.App.4th 1348, 83 Cal.Rptr.2d 619 (1999) (determining ordinance prohibiting vehicle’s sound system from operating where it could be heard 25 feet away not unconstitutionally vague); Davis v. State, 272 Ga. 818, 537 S.E.2d 327, 329 (2000) (finding that statute, which prohibits amplified sound from vehicle that is "plainly audible" at 100 feet, is not vague); State v. Medel, 139 Idaho 498, 80 P.3d 1099, 1103 (2003) (upholding ordinance as not unconstitutionally vague where it prohibited operating vehicle's sound system so that it is audible at distance of 50 feet); Commonwealth v. Scott, 878 A.2d 874 (Pa.Super.Ct.2005) (holding that city ordinance prohibiting sound reproduction devices in vehicles from being played so that they can be heard outside vehicle at distance of greater than 25 feet was not unconstitutionally vague as applied to defendant; police officer testified that he heard music emanating from defendant’s vehicle from approximately 50 feet away, which established clear violation of ordinance); Holland v. City of Tacoma, 90 Wash.App. 533, 954 P.2d 290, 295 (Wash. 1998) (finding ordinance not unconstitutionally vague as court noted that person of ordinary intelligence knows what is meant by prohibition of sound that is audible more than 50 feet away).

      . Montgomery’s remaining point, challenging the search of his vehicle under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), is without merit. See United States v. Davis, 598 F.3d 1259 (11th Cir.2010); Brown v. State, 24 So.3d 671, 680 (Fla. 5th DCA 2009), review denied, 39 So.3d 1264 (Fla.2010); see also Howard v. State, 59 So.3d 229, 231 & n. 2 (Fla. 2d DCA 2011); State v. Harris, 58 So.3d 408, 410-11 (Fla. 1st DCA), review granted, 61 So.3d 410 (Fla. 2011).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dale SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-100.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    Dale Smith, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The Appellant, Dale Smith, timely seeks review of the trial court’s summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He raises nine issues in his petition, all of which were summarily denied by the trial court. We affirm the trial court’s summary denial of eight of these issues without comment; however, we reverse the denial of claim I.

Smith pled guilty to lewd or lascivious molestation by a person 18 years or older (victim less than 12 years of age), a first-degree felony, in exchange for a five-year term of incarceration (followed by 10 years of sex offender probation) and the State’s agreement to drop three additional charges. Notably, the State alleged that the molestation offense occurred between February 28, 2004, and April 22, 2004.

In claim I of his postconvietion motion, Smith argued that defense counsel was ineffective for failing to object to the lack of a factual basis to support the molestation charge. In particular, Smith argued that there was no evidence available indicating that he had committed any misconduct during the time period alleged. The trial court denied Smith’s claim, holding that his arguments were conclusively refuted by the record because both Smith’s mother and the victim made statements to law enforcement on April 22, 2004, contending that Smith had sexually molested the victim that day as well as the week before. The trial court failed, however, to attach any such statements to its denial order. Smith attached to his motion statements from both his mother and the vie-tim, dated April 22, 2004. Although the statements appear to demonstrate that a confrontation between Smith and his mother occurred on that day, they do not conclusively demonstrate that Smith had sexually molested the victim that day or the prior week.

Thus, because claim I was not refuted by the attachments to the trial court’s order, we reverse the summary denial of claim I and remand for further proceedings. See Miles v. State, 964 So.2d 258 (Fla. 1st DCA 2007) (reversing and remanding summary denial of postconviction claim where record attachments did not conclusively refute claim). On remand, the trial court should either attach the portion of the record that conclusively refutes Smith’s claim or conduct an eviden-tiary hearing on the matter. See White v. State, 19 So.3d 444, 445 (Fla. 5th DCA 2009); Styron v. State, 693 So.2d 1144, 1144-45 (Fla. 1st DCA 1997). We affirm the order in all other respects.

AFFIRMED in Part; REVERSED in Part; and REMANDED.

EVANDER, COHEN and JACOBUS, JJ., concur.


author: COHEN, J.

text:
    Jotonnia HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-446.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Jotonnia Hayes challenges the final judgment and sentence imposed following revocation of probation on convictions of three counts of uttering a forged money order and one count of grand theft.

The trial court accepted a negotiated plea to the original charges. At the plea hearing, rather than face a prison sentence as originally contemplated, Hayes, through her lawyer, represented that she could leave the courtroom, walk up to the clerk’s office and pay restitution in full for her ill-gotten gains. With those representations, the plea negotiations became less than clear. The prosecutor, no doubt wanting to see the victims made whole, was willing to back away from the state prison recommendation, and instead asked that the sixteen-month sentence be suspended “for three days and [to] place her on two months — or two years probation. She says she has the money to pay it.” Her lawyer responded, ‘Tour Honor, she’ll pay for it right after we get out of here.... She’ll go upstairs and pay for it.” The judge, at least twice, indicated his intention to place Hayes on two years’ probation and understood that she would pay the restitution within three days. Although the prosecutor kept talking about a sixteen-month suspended sentence, the court neither orally pronounced a suspended sentence nor entered a written judgment reflecting same. Instead, the trial court sentenced her to a term of four days, time served, followed by twenty-four months’ probation. Hayes did not object to her sentence.

Hayes somehow got lost on the way upstairs to the clerk’s office following her sentencing. She had equal difficulty finding the probation office. She changed her address without so much as a note to her probation officer, paid not a single cent of restitution, and committed numerous additional crimes similar to those for which she was placed on probation.

When Hayes once again faced the court for violation of probation and admitted the violation, the trial court was less sympathetic and sentenced her to five years in prison on each count to be served concurrently.

Hayes subsequently filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that the imposition of certain costs was improper. She supplemented her motion with a claim that the sentence was illegal because she received a true split sentence, and the court could not exceed the suspended portion of her original sentence. The trial judge denied the motion, ruling that he had not imposed a split sentence. This appeal followed.

It is correct that when a defendant’s probation is revoked while she is serving a true split sentence, the trial court may not impose a sentence that exceeds the remaining balance of the suspended sentence. Poore v. State, 581 So.2d 161, 164 (Fla.1988); Boone v. State, 967 So.2d 999, 1000-01 (Fla. 5th DCA 2007). However, a review of the plea colloquy and sentencing hearing supports the trial court’s ruling that Hayes was not given a true split sentence. The trial court accepted the defense’s proposed resolution of the case. Based upon Hayes’ claimed ability to immediately compensate her victims, the judge allowed her to avoid prison, at least temporarily. The fact that the prosecutor continued to request a sixteen-month sentence is irrelevant. The trial judge did not impose a suspended sentence, and Hayes got the benefit of her bargain.

The State properly concedes error as to the $750 costs assessment. The record does not support a factual basis for the imposition of more than the $100 statutory lien. That assessment is therefore stricken. On remand, the court may set a hearing to determine the proper amount.

AFFIRMED IN PART; REVERSED IN PART, REMANDED.

SAWAYA and LAWSON, JJ., concur.

      . The trial court did not address the issue of the imposition of costs in the form of a public defender lien.

      . § 938.29(l)(a), Fla. Stat. (2006).


text:
    James A. KOEPPELLE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-875.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    James A. Koeppelle, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 09-001929-CFMA, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

GRANT PETITION FOR BELATED APPEAL.

ORFINGER, C.J., TORPY and JACOBUS, JJ., concur.


text:
    Paul MEYER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2430.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    Paul Meyer, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The Appellant, Paul Meyer, Jr., seeks review of an order summarily denying his motion for postconviction relief, which he filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied Appellant’s motion as successive, but did not attach to its denial order the previous motion and denial to demonstrate the suc-cessiveness of the motion. See Bryant v. State, 944 So.2d 1016 (Fla. 3d DCA 2005); Smith v. State, 719 So.2d 1017 (Fla. 4th DCA 1998).

The order summarily denying post conviction relief is therefore reversed. The cause is remanded to the trial court, either for attachment of the previous motion and denial that demonstrate the successiveness of Appellant’s motion or for consideration of the motion on its merits.

REVERSED.

ORFINGER, C.J., PALMER and JACOBUS, JJ., concur.


text:
    Calvin A. CHANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2512.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    Calvin Chandler, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for. belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion to correct illegal sentence in Case No. 2002-CF-002929 in the Circuit Court in and for Lake County. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, MONACO and EVANDER, JJ., concur.


text:
    Jason S. LOVIER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2539.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    Jason S. Lovier, Carrabelle, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No. 2007-0636-CFAWS in the Cm-cuit Court in and for Volusia County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, MONACO and JACOBUS, JJ., concur.


text:
    Eric PRESSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4045.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Eric Pressley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the denial of his motion for postconviction relief. Appellant’s original motion raised thirteen grounds for relief. Before the trial court ruled on this motion, appellant timely filed a supplemental motion adding a fourteenth ground. Although the trial court later denied the thirteen grounds raised in appellant’s original motion, it never addressed the fourteenth ground raised in his supplemental motion. This court does not have jurisdiction to review a postconviction order that does not dispose of all claims raised below. See Lake v. State, 53 So.3d 1125 (Fla. 1st DCA 2011); Magwood v. State, 937 So.2d 1187 (Fla. 1st DCA 2006); White v. State, 886 So.2d 248 (Fla. 1st DCA 2004); Edler v. State, 673 So.2d 970 (Fla. 1st DCA 1996). Accordingly, we dismiss this appeal without prejudice to appellant filing an appeal once the trial court has rendered a final order disposing of his fourteenth claim.

DISMISSED.

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Charles D. STANFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0631.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.

      Charles D. Stanford, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the lower court’s denial of ground one of the appellant’s motion. However, as we find the appellant’s second ground has merit, we reverse and remand for resentencing.

In ground two, the appellant alleges that trial counsel was ineffective for not objecting to the state’s written intent to classify him as a habitual felony offender because it was untimely filed. The habitual felony offender statute states, “[wjritten notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.” § 775.084(3)(a)2, Fla. Stat. (2007). In Ashley v. State, 614 So.2d 486, 490 (Fla.1993), the Supreme Court of Florida construed this statute to mean that written notice must be given to defendants prior to pleading guilty. Also in Ashley, the court laid out two criteria the state must meet before a defendant can be classified as a habitual felony offender. First, the state must provide the defendant with a “written notice of intent to habitualize.” Id. Second, the court must confirm that the defendant understands the consequences of habitualization. Id.

In this case, the record conclusively shows the state did not provide the appellant with a written notice of intent to habitualize until almost two months after the appellant entered his plea. While the record does indicate that the state verbally informed the appellant that it would be seeking sentencing as a habitual felony offender, that fact does not cure the failure to timely file a written notice. Ashe v. State, 951 So.2d 1023, 1023 (Fla. 1st DCA 2007). If the written plea agreement indicated a habitual felony offender sentence, the written notice requirement would have been moot. See State v. Blackwell, 661 So.2d 282 (Fla.1995). However, in this case, the written agreement did not contain any mention of the habitual felony offender status. Competent counsel would have objected to the untimely notice and the resulting habitual felony offender sentence.

This leaves only the question of the correct remedy in this case. In State v. Thompson, 735 So.2d 482, 484 (Fla.1999), the Florida Supreme Court discussed the two prongs of the Ashley test, and stated that the first prong “is based on due process concerns and is dictated by the plain language of the habitual offender statute. ...” The second prong, however, deals with voluntariness of the plea, and is dictated by case law and rules of procedure. Id. The court further noted that the remedy for an involuntary plea is the option to withdraw that plea. Id. at 485. If the state violates the first prong of the Ashley test and wholly fails to classify a defendant as a habitual felony offender, it is a violation of the plain language of the habitual felony offender statute, and the only remedy in that situation is resentenc-ing. See Rhodes v. State, 704 So.2d 1080, 1081 (Fla. 1st DCA 1997).

Additionally, the facts of Ashley are almost identical to this case. In both cases, the state filed its notice of intent to habitu-alize after the appellant had entered a plea in the case. Neither appellant asked for his plea to be vacated, but rather asked for resentencing based on the guidelines scoresheet. In Ashley, the court deemed resentencing to be the correct remedy. We therefore conclude the remedy in this case is for the appellant to be resentenced pursuant to the guidelines. Accordingly, we reverse the trial court’s summary denial on ground two, and remand for resen-tencing in accordance with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Gene HIGGINBOTHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1829.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Gene Higginbotham, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand.

In 1998, the appellant was convicted following a jury trial of four counts of DUI manslaughter and one count of DUI causing serious bodily injury, and was sentenced to 50 years’ imprisonment concurrent on each count. He filed a rule 3.800(a) motion alleging that the fifty-year sentences were illegal because they were above the statutory máximums for the offense. The state asserts that the appellant’s sentences of 600 months’ imprisonment are legal as they are within the guidelines range. §§ 921.001(5)(‘Tf a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure.”) Fla. Stat. (1997); 921.0014(2) (same), Fla. Stat. (1997); Mays v. State, 717 So.2d 515, 516 (Fla.1998). However, the trial court failed to attach the appellant’s guidelines scoresheet or anything else indicating that the appellant’s sentences are legal. See, e.g., Corp v. State, 698 So.2d 1349 (Fla. 1st DCA 1997) (“when denying a cognizable 3.800(a) claim, the trial court must attach portions of the record conclusively refuting that claim”). Therefore, we reverse and remand for the trial court to attach the guidelines scoresheet conclusively refuting this claim or for resentencing within the applicable statutory máximums.

REVERSED and REMANDED with directions.

BENTON, C.J, HAWKES, and ROWE, JJ., concur.

      . In response to a Toler order, the State attached a scoresheet indicating that 600 months was in fact within the guidelines range. However, the trial court must attach portions of the order refuting a claim. Cf. Core v. State, 685 So.2d 91 (Fla. 4th DCA 1997) (“Appellant's post-conviction motion was denied without evidentiary hearing or identification of evidence in the record that refuted his claims. The state has attempted to cure the record deficiency on appeal by supplying this court with documentation to support the decision below. This is insufficient to cure the error.").


author: MARSTILLER, J.

text:
    Michael FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3884.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Michael Flowers appeals his life sentence for aggravated battery with a firearm. He argues the sentence, which in-eludes a minimum mandatory term of life in prison, is illegal because section 775.087(2)(a)3, Florida Statutes, limits the minimum mandatory period to twenty-five years. We affirm the sentence under the authority of Mendenhall v. State, 48 So.3d 740 (Fla.2010).

A jury found Flowers guilty of two counts of aggravated battery with a firearm. On Count I, the jury found he discharged the firearm while committing the crime, causing great bodily harm to victim James Johnson. On Count II, the jury found only that he discharged the firearm during commission of the crime. At sentencing, the trial court deemed Flowers a habitual felony offender. On Count I, the court sentenced him to life imprisonment. It further found the criteria in section 775.087(2)(a)3 satisfied, and imposed a minimum mandatory life sentence. As to Count II, the court determined that section 775.087(2)(a)2 applied, and it sentenced Flowers to twenty years’ imprisonment. On appeal, Flowers challenges only the sentence imposed for Count I.

The statute the trial court relied on in setting the minimum mandatory portion of Flowers’ sentence is section 775.087, commonly known as the 10-20-Life statute. Under the statute, a person who commits any of the enumerated felonies is subject to specific mandatory prison terms if, while committing the offense, she or he possesses a firearm, discharges a firearm, or causes death or great bodily harm as a result of discharging a firearm. The statutory language at issue here reads:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a)3, Fla. Stat. (emphasis added). Flowers argues this provision only permits a twenty-five-year minimum mandatory sentence. Mendenhall holds otherwise.

The question in Mendenhall was whether the trial court could impose a thirty-five-year minimum mandatory sentence under section 775.087(2)(a)3 for attempted second-degree murder with a firearm when the maximum sentence for that offense is thirty years under section 775.082(3)(b)-(c). 48 So.3d at 742. The supreme court concluded first that “the specific provisions of section 775.087(2)(a)(3) prevail over the general provisions of the [sic] 775.082 regarding statutory máximums.” 48 So.3d at 748. The court then construed the statutory language highlighted supra to mean “the trial court has discretion to impose a mandatory minimum within the range of twenty-five years to life.” 48 So.3d at 750 (emphasis added). “[W]e conclude that the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.” 48 So.3d at 742. Accordingly, the court upheld the thirty-five-year minimum mandatory sentence under review. Id.

The question in this case simply is whether imposition of a minimum mandatory life term is permissible under the 10-20-Life statute. Applying Mendenhall, the trial court had the discretion under section 775.087(2)(a)3 to impose a minimum mandatory term anywhere within the range of twenty-five years to life in prison. This it could have done even if the minimum mandatory term exceeded the statutory maximum for the offense. Accordingly, we affirm Flowers’ life sentence, with a minimum mandatory of life, for aggravated battery with a firearm.

AFFIRMED.

PADOVANO and ROBERTS, JJ., concur.

       This is Appellant's fourth appearance in this court challenging his 2006 convictions and sentences for two counts of aggravated battery with a firearm. We initially affirmed the convictions and sentences. Flowers v. State, 951 So.2d 833 (Fla. 1st DCA 2007) (table). Then we granted him a new appeal, based on a claim of ineffective assistance of appellate counsel, on two issues: whether his minimum mandatory life sentence is illegal, and whether the trial court conducted a legally insufficient Nelson hearing. Flowers v. State, 965 So.2d 1233 (Fla. 1st DCA 2007). When he took that appeal, we affirmed on the Nelson issue, but granted yet another appeal on the sentencing issue because new appellate counsel failed to preserve it for review by filing a rule 3.800(b) motion. Flowers v. State, 36 So.3d 702 (Fla. 1st DCA 2010). This sentencing issue is now properly before us.


author: MORRIS, Judge.

text:
    Christopher MUNROE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2728.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2011.
    James Marion Moorman, Public Defender, and J.C. Hill, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Christopher Munroe appeals the non-summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 after this court reversed the initial summary denial and remanded for an evidentiary hearing. See Munroe v. State, 28 So.3d 973 (Fla. 2d DCA 2010). We affirm the postconviction court’s nonsummary denial.

In his motion, Munroe argued that his trial counsel was ineffective in failing to advise him that he had a viable defense to the charge of failing to register as a sexual offender because he was not designated a sexual offender by the court that entered his conviction for the qualifying offense of false imprisonment and because there was no sexual component to his false imprisonment offense. See id. at 975. We affirm the postconviction court’s conclusion that trial counsel was not ineffective in his advice to Munroe. Munroe was required to register as a sexual offender by virtue of his conviction for the qualifying offense of false imprisonment where the victim was a minor and not his child. See § 943.0435(1)(a)(1), Fla. Stat. (2002); Raines v. State, 805 So.2d 999, 1002 (Fla. 4th DCA 2001) (“Because appellant was convicted of false imprisonment, one of the enumerated offenses in the definition of ‘sexual offender,’ he was required to register.” (footnote omitted)). And the evidence at the evidentiary hearing indicates that trial counsel reasonably determined that there was in fact a sexual component to Munroe’s qualifying offense of false imprisonment. Cf. State v. Robinson, 873 So.2d 1205, 1207 (Fla.2004) (holding that sexual predator act was “unconstitutional as applied to a defendant whose crime indisputably did not contain a sexual element”); Raines, 805 So.2d at 1003 (holding that sexual offender designation was unconstitutionally applied to the defendant where “it [wa]s clear that the predicate crime [of false imprisonment] [wa]s totally devoid of a sexual component”). Accordingly, trial counsel properly advised Mun-roe that he had no viable defense to the charge of failing to register as a sexual offender.

We take this opportunity to clarify a statement made in our previous opinion in Munroe, 28 So.3d 973. In Munroe, this court suggested that Robinson held that in order for the defendant to be designated a sexual predator based on his or her qualifying conviction for an offense that does not necessarily include a sexual element, such as false imprisonment, the State must prove that there was a sexual component to the offense. Munroe, 28 So.3d at 975-76 (citing Raines, 805 So.2d at 1003, for the same suggestion). But Robinson’s holding is much more narrow and does not impose such a blanket requirement on the State; the court in Robinson simply held that the sexual predator designation is unconstitutionally applied to a defendant who is convicted of a qualifying offense that does not contain a sexual element, such as false imprisonment or kidnapping, where it is undisputed by the State that the facts of the particular qualifying offense do not contain a sexual component. 873 So.2d at 1217; see also Raines, 805 So.2d at 1003. Robinson allows a defendant to challenge a designation on the narrow basis discussed in that case. In this case, Munroe was unable to demonstrate that he is entitled to relief under Robinson.

Affirmed.

SILBERMAN, C.J., and CASANUEVA, J., Concur.


author: LaROSE, Judge.

text:
    LASER SPINE INSTITUTE, LLC, Petitioner, v. Haval M. MAKANAST; Moises Dishmey, Inc., a Florida corporation; Subzali Janmohamed; and Shamim Reshamwalla, Respondents.
    No. 2D11-697.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2011.

      Thomas A. Valdez, Todd M. Smayda, and Brooke Chastain Juan of Quintairos, Prieto Wood & Boyer, PA., Tampa, for Petitioner.
    Rick Dalan, Michael D. Siegel, and James J. Cannon of Dalan, Katz & Siegel, P.L., Clearwater, for Respondents.
   LaROSE, Judge.

Laser Spine Institute (LSI) petitions for certiorari review of a nonfinal order granting a motion to compel production of documents relating to its billing and collection practices. LSI claims, and there seems to be no credible counterargument, that these documents are trade secrets. We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A). The order is renewable by certiorari because disclosure of the material would cause irreparable harm that cannot be cured on plenary appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (holding certiorari review appropriate when a discovery order relates to materials protected by privilege, work product, or trade secret). The trial court properly concluded that the documents are subject to production.

But when the trial court directs disclosure of trade secrets, it must take appropriate measures to protect the interests of the trade secret holder, the interests of the parties, and the furtherance of justice. § 90.506, Fla. Stat. (2010). We conclude that a protective order or other confidentiality agreement should be in place before release of the documents. See Columbia Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 33 So.3d 148, 151 (Fla. 4th DCA 2010). Before the trial court, respondents did not dispute that LSI was entitled to such protection. Indeed, a confidentiality agreement was discussed at the hearing on the motion to compel, and the respondents proposed one to LSI.

LSI is entitled to relief to the limited extent that the trial court should have stayed LSI’s production until the parties had an opportunity to negotiate a proper protective order or confidentiality agreement. Accordingly, we grant the petition in part and remand for entry of a protective order or confidentiality agreement. In the event the parties are unable to reach an agreement, the trial court shall enter a narrowly tailored order protecting LSI’s trade secrets. Id.

Granted in part and remanded.

DAVIS and CRENSHAW, JJ., Concur.


author: WALLACE, Judge.

text:
    Earl L. FRYE, Petitioner, v. IRONSTONE BANK, f/k/a Atlantic States Bank, Respondent.
    No. 2D11-905.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2011.

      Robert A. Stok and Joshua R. Kon of Stok Folk & Kon, P.A., Aventura, for Petitioner.
    Douglas B. Szabo and Suzanne M. Boy of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Respondent.
   WALLACE, Judge.

Earl L. Frye seeks review by certiorari of an order denying his motion to disqualify counsel for Ironstone Bank (the Bank) in an action filed by the Bank against Mr. Frye for an alleged breach of a loan guaranty. The question presented is whether the Bank’s counsel should be disqualified from representing the Bank in the action on the guaranty where the Bank’s counsel also represents Mr. Frye’s former lawyer in a legal malpractice action. Mr. Frye’s action for legal malpractice includes claims for matters directly related to his former lawyer’s representation of Mr. Frye in the defense of the Bank’s claims against him. Because the Bank’s counsel has access to confidential communications between Mr. Frye and his former lawyer concerning the action on the guaranty by virtue of its representation of the former lawyer in the malpractice action, we conclude that the Bank’s counsel is disqualified from representing the Bank in the action on the guaranty. Accordingly, we grant the petition for a writ of certiorari.

I. THE FACTUAL BACKGROUND

In 2009, the Bank sought to foreclose on a note and mortgage against • a Florida limited liability company (the LLC). The Bank alleged that the LLC owed it $2,247,810.97 plus interest under the note. The Bank also sought to enforce personal guaranties of the note executed by Mr. Frye and others. Initially, the firm of Salvatori, Wood, Buckel & Weidenmiller, P.L. (the Salvatori firm) represented the Bank.

Later, the LLC filed a bankruptcy petition. The property subject to the mortgage was sold, and the net proceeds of the sale were paid to the Bank. In a second amended complaint, the Bank alleged that the net proceeds from the sale of the property were insufficient to cover the bal-anee owed by the LLC on the note, and the Bank sought to recover the deficiency against Mr. Frye and others on their personal guaranties.

Mr. Frye initially retained Robin Trupp and Arnstein & Lehr, LLP (the Arnstein firm), to defend him against the Bank’s claims. Later, Mr. Frye discharged Mr. Trupp and the Arnstein firm and retained new counsel to represent him in the Bank’s action. He then instituted a legal malpractice action against Mr. Trupp and the Arnstein firm based upon their representation of him in the Bank’s action as well as in other matters involving loans and personal guaranties. Significantly, Mr. Frye alleged in his malpractice complaint that Mr. Trupp and the Arnstein firm obtained “confidences of [Mr. Frye] during their representation, including, without limitation, information gleaned from performing estate and asset planning for [Mr. Frye] giving [Mr. Trupp and the Arnstein firm] intimate knowledge of [Mr. Frye’s] financial circumstances.” Although the exact sequence of events is not clear from our limited record, Mr. Frye’s new counsel sent a demand letter on the malpractice claim to Mr. Trupp and the Arnstein firm on January 20, 2010. Mr. Frye’s new counsel filed the action for legal malpractice against Mr. Trupp and the Arnstein firm on or about March 29, 2010.

On April 23, 2010, the circuit court entered an order substituting the firm of Henderson, Franklin, Starnes & Holt, P.A. (Henderson Franklin), for the Salvatori firm as counsel for the Bank. In turn, Mr. Trupp and the Arnstein firm retained Henderson Franklin to represent them in Mr. Frye’s malpractice action. Henderson Franklin filed motions on behalf of Mr. Trupp and the Arnstein firm in the malpractice action on or about May 5, 2010. Although Mr. Trupp and the Arnstein firm once represented Mr. Frye in opposition to the Bank in its action on the guaranty, they are now aligned with Henderson Franklin against Mr. Frye in the malpractice action. Simultaneously, Henderson Franklin opposes Mr. Frye by representing the Bank in its efforts to collect money from him.

II. THE MOTION TO DISQUALIFY

In September 2010, Mr. Frye filed a motion to disqualify Henderson Franklin as counsel for the Bank in its action on the guaranty. In his motion, Mr. Frye noted Henderson Franklin’s representation of the Bank in the action on the guaranty and its representation of Mr. Trupp and the Arnstein firm in his legal malpractice action for claims including — among other things — their defense of him against the Bank. Mr. Frye asserted that Henderson Franklin should be disqualified as counsel for the Bank in the action on the guaranty because it had gained an unfair informational advantage based upon the representation of him by Mr. Trupp and the Arn-stein firm in that matter. According to Mr. Frye, despite Mr. Trupp’s knowledge that Henderson Franklin was representing the Bank in the action on the guaranty, Mr. Trupp retained that firm, “albeit another attorney at the firm,” to represent him and his firm in the malpractice action. As a result, the Henderson Franklin firm had access to the files that Mr. Trupp created during his representation of Mr. Frye, “including extensive estate planning and other confidential attorney-client information [Mr. Trupp] is irre[f]utably presumed to possess.” Mr. Frye conceded that two different attorneys at Henderson Franklin were representing the Bank in the action on the guaranty and Mr. Trupp and the Arnstein firm in the malpractice action. Nevertheless, he contended that “it is well-settled that a ‘Chinese wall’ cannot be constructed.” Finally, Mr. Frye argued that the circumstances created an appearance of impropriety, which, by itself, was grounds for disqualification.

At a hearing on the motion to disqualify, Mr. Frye’s counsel argued that Henderson Franklin should be disqualified based on “a direct conflict here because Mr. Trupp represented Mr. Frye in connection with this very case that’s before this very court, and that’s the subject of [Henderson Franklin’s] current representation of Mr. Trupp, which gives the Henderson Franklin firm an informational [ jadvantage, which under Florida Law is grounds for disqualification.” Mr. Frye’s counsel reasoned that there was an irrefutable presumption that confidences had been exchanged between Mr. Frye and Mr. Trupp. He also pointed out that the Bank was seeking a money judgment against Mr. Frye in the action on the guaranty and would surely seek to execute on any judgment that the court might enter. Mr. Frye’s counsel observed that the estate planning work performed by the Arnstein firm for Mr. Frye made it “the best ally possible” for Henderson Franklin with regard to the collection of any potential judgment against Mr. Frye.

At the conclusion of the hearing, the circuit court ruled that “the basic problem with [Mr. Frye’s] position is there is no attorney/client relationship between Mr. Frye and Henderson Franklin. Therefore, there is no irrefutable presumption because you’ve not established an attorney/client relationship.” The circuit court stated further that Mr. Frye failed to meet his burden of establishing “the procedural and substantive requirements for disqualification because, number one, Frye and Henderson Franklin never shared an attorney/client relationship, and, number two, there has been no evidentiary showing that the matter in which Henderson Franklin is representing ... Trupp and [the Arnstein firm] ... are the same or substantially related matters.” The circuit court’s written order denying the motion to disqualify makes similar findings and conclusions, citing to this court’s decision in Kaplan v. Divosta Homes, L.P., 20 So.3d 459 (Fla. 2d DCA 2009).

III. DISCUSSION

A. Preliminary Matters

Orders granting or denying motions to disqualify a party’s attorney are reviewable by certiorari. Gonzalez ex rel. Colonial Bank v. Chillura, 892 So.2d 1075, 1076 (Fla. 2d DCA 2004); Pinebrook Towne House Ass’n v. C.E. O’Dell & Assocs., Inc., 725 So.2d 431, 433 (Fla. 2d DCA 1999). “Disqualification of a party’s counsel is an extraordinary remedy and should be resorted to sparingly.” Kaplan, 20 So.3d at 461; see also Pinebrook, 725 So.2d at 433 (noting same). When a court is confronted with a motion to disqualify counsel, it should “consider the competing interests of maintaining professional standards and preserving client confidences [on the one hand], and on the other hand, permitting a party to hire their counsel of choice.” Kaplan, 20 So.3d at 461-62. Mr. Frye is entitled to relief if he can establish that the circuit court departed from the essential requirements of the law in denying his motion. See Gonzalez, 892 So.2d at 1077; Pinebrook, 725 So.2d at 433.

B. Framing the Issue

Mr. Frye’s argument for disqualification is based upon Henderson Franklin’s receipt in the context of the Bank’s action against Mr. Frye of privileged information from Mr. Frye’s former counsel as a result of Henderson Franklin’s simultaneous representation of the Bank and of Mr. Trupp and the Arnstein firm. The legal malpractice action concerns, in part, Mr. Trupp’s representation of Mr. Frye in the same action in which Henderson Franklin is currently representing the Bank. The allegations of the malpractice complaint also concern Mr. Trupp’s representation of Mr. Frye on estate and asset planning matters, during which Mr. Frye alleges that Mr. Trupp gained detailed knowledge of his financial circumstances. Such knowledge could be invaluable to the Bank in collecting a judgment against Mr. Frye.

Thus the question presented is whether Henderson Franklin’s access to confidential communications between Mr. Frye and his former lawyer through its representation of the lawyer in the legal malpractice action is sufficient to require the disqualification of Henderson Franklin from continued representation of the Bank in the action against Mr. Frye on the guaranty. We conclude that the unfair informational advantage accruing to Henderson Franklin through its representation of Mr. Frye in the legal malpractice action disqualifies it from further representation of the Bank in its action against Mr. Frye on the guaranty. The decision of the Third District in a case involving similar facts, Adelman v. Adelman, 561 So.2d 671 (Fla. 3d DCA 1990), guides our decision on this point. We turn now to an examination of the Adelman decision.

C. The Adelman Decision

In Adelman, a husband sued his wife for dissolution of marriage. Id. at 671. The wife retained attorney Fred Dellapa to represent her in that proceeding. Id. Later, the wife discharged Mr. Dellapa and retained new counsel to represent her in an appeal from the final judgment of dissolution of marriage. Id. The husband, who was previously represented by other counsel in the tidal coui't, retained the Vogel-sang Law Firm (Vogelsang) to represent him in the appeal. Id. at 671-72. After the appellate court reversed the final judgment in part and remanded for a de novo evidentiary hearing, Vogelsang entered an appearance on behalf of the husband in the trial court. Id. at 672. The wife then filed a legal malpractice claim against her former attorney, Mr. Dellapa, alleging that he had negligently represented her in the dissolution matter at the trial level. Id. Mr. Dellapa, in turn, retained the husband’s counsel, Vogelsang, to represent him in the legal malpractice action. Id. Both the dissolution proceeding and the malpractice action were assigned to the same trial judge. Id.

The wife filed a motion to disqualify Vogelsang from representing the husband in the dissolution proceeding, and the trial court granted the motion. Id. The husband then petitioned for certiorari review of the order granting the motion to disqualify. Id. The Third District noted that “[t]he question presented for review is whether a lawyer is properly disqualified from representing a party in a marriage dissolution action — where, as here, the lawyer also represents the opposing party’s ex-lawyer in a legal malpractice action brought by the opposing party arising out of the same dissolution action.” Id. at 671.

In addressing this issue, the Third District stated that “[i]t is axiomatic that a lawyer in representing a party to a lawsuit may not, in the absence of a court order, become privy to any privileged attorney-client communications involving the opposing party to the lawsuit.” Id. at 672. It further observed that “it would be a shocking breach of the attorney-client privilege for a lawyer to surreptitiously eavesdrop on the confidential communications between the opposing party and his counsel” as such communications are clearly privileged. Id. The court reasoned:

This being so, we think it clear that a lawyer may not indirectly accomplish what he cannot accomplish directly— that is, a lawyer should not be able to penetrate the secrecy of an opposing party’s attorney-client communications by virtue of what the lawyer may learn from confidential communications obtained from another of the lawyer’s clients in a related case. Stated differently, a lawyer should not be allowed to represent two clients in related cases— when one client can lawfully inform the lawyer of privileged attorney-client communications involving the opposing party in the second client’s case. Indeed, it has been held that a lawyer may be disqualified from representing a client when otherwise privileged material belonging to the opposing party has been inadvertently disclosed to the lawyer. General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986) (insurer’s claim file containing privileged material inadvertently sent by trial judge to opposing party’s lawyer; lawyer disqualified).

Id.

In upholding the order disqualifying the husband’s counsel, the Third District recognized that in representing Mr. Dellapa, Vogelsang became privy to confidential communications between the wife and Mr. Dellapa because Mr. Dellapa could lawfully disclose to Vogelsang all aspects of his representation of the wife in the dissolution proceeding. Id. Thus, Vogelsang, by virtue of its dual representation, was able to discover confidential communications between the opposing party, the wife, and her counsel in the pending dissolution proceeding. The Third District held that “plainly, the firm may not be permitted to accomplish such an indirect breach of the attorney-client privilege and was properly disqualified from representing [the husband] in the marriage dissolution proceeding.” Id. at 672-73.

The Third District recognized that by suing her former counsel, the wife had not waived her attorney-client privilege with Mr. Dellapa “as to the entire world.” Id. at 673. “[S]uch waiver [was] limited solely to the legal malpractice action,” and Mr. Dellapa was limited to revealing confidential information related to his representation of the wife only to the extent necessary for the defense of the malpractice claim. Id. (citing Fla. Bar. R. Prof. Conduct 4-1.6(c)(2), now codified at R. Regulating Fla. Bar 4-1.6(c)(4)). On the other hand, the court observed, Mr. Dellapa was entitled to “make a full disclosure of his entire representation of [the wife] to the lawyer he hire[d] to represent him on the legal malpractice claim.” Id. The court reasoned that

where, as here, [Mr. Dellapa] hires as his counsel on the malpractice claim the lawyer who also represents [the husband] in the underlying dissolution action, it is plain (a) that [the wife’s] privileged attorney-client communications may now be disclosed to [the husband’s] lawyer, and (b) that the lawyer so exposed to such privileged material [Vogel-sang] may be disqualified from representing [the husband].

Id. Thus the Third District concluded that the trial court did not depart from the essential requirements of the law in disqualifying Vogelsang from representing the husband and denied his petition for a writ of certiorari. Id. In our view, the reasoning in Adelman applies to the substantially similar circumstances present in this case.

D. Analysis

Mr. Trupp is irrefutably presumed to have obtained confidential information from his former client, Mr. Frye, in the context of his representation of Mr. Frye in the Bank’s action on the guaranty and in estate and asset planning matters. See State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 638 (Fla.1991) (noting that the existence of an attorney-client relationship gives rise to an irrefutable presumption that confidences were disclosed). With certain exceptions, Mr. Trupp is obligated not to reveal information relating to his representation of Mr. Frye without Mr. Frye’s informed consent. See R. Regulating the Fla. Bar 4-1.6(a) (“A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.”). However, because Mr. Frye has sued Mr. Trupp in connection with that representation, Mr. Trupp may lawfully reveal those privileged communications to the extent necessary for the defense of the malpractice action. See R. Regulating Fla. Bar 4-1.6(c)(4), (e) (“A lawyer may reveal ... information [relating to representation of a client] to the extent the lawyer reasonably believes necessary ... to respond to allegations in any proceeding concerning the lawyer’s representation of the client.... When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.”).

In accordance with the applicable ethical rules, Mr. Frye’s privileged attorney-client communications with Mr. Trupp may now be disclosed to his opponent’s counsel in the Bank’s action on the guaranty, Henderson Franklin. It follows that Henderson Franklin must be disqualified from representing the Bank in its action against Mr. Frye because of the unfair informational advantage Henderson Franklin has gained by virtue of its representation of Mr. Trupp and the Arnstein firm in the defense of Mr. Frye’s malpractice action. See Adelman, 561 So.2d at 673; see also Castellano v. Winthrop, 27 So.3d 134, 137 (Fla. 5th DCA 2010) (noting that “disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party’s counsel”); Greig v. Macy’s Ne., Inc., 1 F.Supp.2d 397 (D.N.J.1998) (requiring disqualification of counsel under facts similar to those in Adelman and in this case).

E. Kaplan is Distinguishable

Here, the circuit court applied the conflict of interest analysis in this court’s decision in Kaplan to conclude that Mr. Frye had failed to meet the requirements for the disqualification of Henderson Franklin. The circuit court reasoned that because Mr. Frye was not a current or former client of Henderson Franklin, no irrefutable presumption arose that confidential information was disclosed between Mr. Frye and Henderson Franklin. The court also stated that Mr. Frye had failed to make an evidentiary showing that the Bank’s action on the guaranty was the same or substantially the same as the legal malpractice matter in which Henderson Franklin is representing Mr. Frye’s former counsel.

However, in Kaplan, Mr. and Mrs. Kap-lan sought to disqualify their opponent’s counsel based upon counsel’s alleged conflict of interest. That conflict allegedly arose from the representation by the opposing counsel’s colleague of an adverse party in separate litigation, a probate case, in which Mr. Kaplan was involved. Quoting from State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So.2d at 633, the Kaplan court noted that a proponent of a motion to disqualify counsel based upon a conflict of interest must establish that

(1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client.

20 So.3d at 462. In applying the above test to the facts before it, the Kaplan court held that “[b]ecause no attorney-client relationship existed between the Kaplans and the Firm [sought to be disqualified], the Kaplans failed to meet the threshold requirement for disqualification based on a conflict of interest.” Id. (emphasis added).

Unlike in Kaplan, Mr. Frye is not seeking to disqualify Henderson Franklin based upon a claimed conflict of interest. Thus Mr. Frye need not establish that he had an attorney-client relationship with Henderson Franklin and that the Bank’s action on the guaranty and the legal malpractice claim are the same or are substantially related. Instead, Mr. Frye is seeking the disqualification of Henderson Franklin based on the unfair informational advantage it derives from its access to his confidential communications to Mr. Trupp through its representation of Mr. Trupp and the Arnstein firm in the legal malpractice action. Here, the conflict of interest analysis in Kaplan is not applicable.

IV. CONCLUSION

By relying on the conflict of interest analysis in Kaplan, the circuit court applied the wrong legal rule to Mr. Frye’s motion for disqualification. The circuit court’s application of the wrong law in deciding Mr. Frye’s motion to disqualify is a departure from the essential requirements of the law. Moreover, the Third District’s analysis in Adelman is applicable here. The circuit court should have granted Mr. Frye’s motion to disqualify Henderson Franklin under the reasoning in Adelman. Accordingly, we grant the petition for a writ of certiorari, quash the order under review, and remand this case for further proceedings.

Petition granted, order quashed, and case remanded.

WHATLEY and VILLANTI, JJ., Concur.

      . In a first amended complaint, the Bank alleged that Mr. Frye had fraudulently transferred substantially all of his assets to a family limited partnership after the Bank's claim against him arose; the Bank sought to avoid the alleged fraudulent transfer. The Bank did not assert a fraudulent transfer claim in its second amended complaint.

      . See R. Regulating Fla. Baraaa 4-1.10(b); Birdsail v. Crowngap Ltd., 575 So.2d 231, 232 (Fla. 4th DCA 1991); Edward J. DeBartolo Corp. v. Petrin, 516 So.2d 6, 7 (Fla. 5th DCA 1987).

      . We understand that the Kaplans also claimed that their opponents’ counsel had received an unfair informational advantage in the pending litigation. Kaplan, 20 So.3d at 461. The purported source of this information was the Kaplans’ disclosure of information to the relatives of a next-door neighbor, who was an attorney whose firm represented an adverse party in probate litigation to which Mr. Kaplan was a party. Id. The Kap-lan court dismissed the claim that opposing counsel had an unfair informational advantage for four reasons. First, the communications in question were not confidential or privileged. Id. at 462. Second, the Kaplans did not have an attorney-client relationship with the recipients of the information. Id. Third, "the Rules of Professional Conduct addressing the use of information to the disadvantage of another party only contemplate situations where information is gained from and used against a prior or current client.” Id. at 462-63 (citing R. Regulating Fla. Bar 4-1.8(b), 4-1.9(b)). Finally, Mr. Kaplan had acknowledged that, ultimately, the information claimed to be confidential would be disclosed in the underlying litigation. Id. at 463. Thus the Kaplans’ claim that opposing counsel had an unfair informational advantage through access to privileged and confidential information was without merit. Id. at 462.

      . In fairness to the circuit court, we note that neither Mr. Fiye nor the Bank directed the circuit court’s attention to the Adelman decision. However, Mr. Frye’s argument for the disqualification of the Henderson Franklin firm was consistent with the reasoning in Adelman.


author: ALTENBERND, Judge.

text:
    In re the Involuntary Placement of Marsha Kay DRUMMOND. Marsha Kay Drummond, Appellant, v. State of Florida, Appellee.
    No. 2D09-5637.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2011.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Shelley B. Cridlin, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Marsha Kay Drummond appeals the order of involuntary placement in her Baker Act proceeding. See § 394.467, Fla. Stat. (2009). Both Ms. Drummond’s attorney and the assistant attorney general found no arguable issue in this case. Accordingly, they filed Anders briefs as authorized by Pullen v. State, 802 So.2d 1113 (Fla. 2001).

This is a case in which a magistrate presided over a contested Baker Act proceeding. There are no special rules of civil procedure for Baker Act proceedings. Many of the procedures applicable to these proceedings are actually described in section 394.467. It is common, especially in larger circuits, for magistrates with special training and experience to be appointed to hear these cases pursuant to Florida Rule of Civil Procedure 1.490.

The magistrate in this case considered the evidence and prepared a lengthy report reciting his findings of fact and concluding that there was clear and convincing evidence to support an order of involuntary placement. Ms. Drummond’s trial attorney filed a timely exception to the magistrate’s report. The trial court considered the exception, rejected it, and entered the order on appeal that adopted the magistrate’s report.

During this court’s independent review, we were uncertain as to the standard of review that would apply in such an appeal. We asked the parties to brief the standard. Both parties concluded that there was no ease law squarely deciding this issue. However, both parties concluded that the standard of review should be similar to that applied in other contexts in which a trial court reviews and adopts a magistrate’s report.

Unfortunately, the standard of review for other types of cases in which a district court reviews a trial court’s order adopting or rejecting a magistrate’s order is subject to some debate and confusion. See, e.g., Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999) (en banc opinion with disagreement over the trial court’s standard of review when reviewing magistrate’s report). Moreover, a trial court’s review of a magistrate’s report in the context of a contested involuntary placement proceeding is considering a fundamental liberty issue and, thus, a right guaranteed by both the U.S. and Florida constitutions. See In re Beverly, 342 So.2d 481, 487-88 (Fla. 1977) (citing State v. Valdez, 88 N.M. 338, 540 P.2d 818, 822 (1975), for the proposition that a preponderance of the evidence standard of proof is constitutionally unacceptable in civil commitment cases because fundamental liberties are at stake). It is also reviewing a claim that the State is obligated to prove by clear and convincing evidence. See § 394.467(1). As a result, the trial court’s review should undoubtedly be more rigorous in this context than in others. To add another layer of complexity, it is rare for a district court to review by direct appeal one judge’s work that is in turn a review of another magistrate’s decision. Thus, this court has decided to write to discuss this relatively unique review process.

In describing the trial court’s standard of review and the district court’s standard of review, it is helpful to consider three distinct review functions performed by the trial court when it examines the magistrate’s report: (1) the trial court’s review of the magistrate’s findings of fact, (2) the trial court’s determination of the law that must be applied to the facts, and (3) the trial court’s review of the actual decision reached by applying the law to the facts.

1. The review of the magistrate’s findings of fact

When the trial court reviews the magistrate’s report to resolve an exception, there is consensus that a trial court must accept the magistrate’s findings of fact if they are supported by competent, substantial evidence. See Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004); Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999); Elliott v. Bradshaw, 59 So.3d 1182, 1185 (Fla. 4th DCA 2011); Tilton v. Gardner, 52 So.3d 771, 775 (Fla. 5th DCA 2010); see also Aburos v. Aburos, 34 So.3d 131, 132 (Fla. 3d DCA 2010); C.D. v. Dep’t of Children & Families, 974 So.2d 495, 501 (Fla. 1st DCA 2008). In a case where the findings are affected by issues of credibility or competence, which would seem to be common in Baker Act proceedings, the findings should be rejected only if they are clearly erroneous. See Lyon v. Lyon, 54 So.2d 679, 680 (Fla.1951). In performing this task, the trial court is a reviewing court that should give the magistrate’s findings a presumption of correctness, but it still is obligated to perform a full examination of the evidence and the findings. See Quincoees v. Quincoces, 10 So.3d 657, 659 (Fla. 3d DCA 2009).

The district court, in turn, reviews the trial court’s decision to assure that it is applying the correct standard of review as a matter of law. The trial court’s application of that standard is also entitled to a presumption of correctness, but the three-judge panel can equally perform the review that the trial court performed of the magistrate’s record and findings. Thus, there is no need for a district court to defer to the trial court by using the abuse of discretion standard that we often apply when a trial court is applying law to its own factual determinations. Thus, we will review de novo the trial court’s decision that the findings of fact in a Baker Act case are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness.

2. The determination of the law that must be applied to the facts

In virtually all review proceedings, the reviewing court has an identical ability to determine what law will be applied to the facts in reaching a decision. Thus, in this context, the trial court should conduct a de novo review to assure that the magistrate has selected the correct law to apply in reaching his or her decision. In a Baker Act case, this law is primarily statutory, so the determination of the correct law is a relatively simple process. See §§ 394.451-.4789. Likewise, this court will also review de novo to determine that both the magistrate and the trial judge applied the correct law.

3. The review of the magistrate’s decision reached by applying the law to the facts

In an involuntary placement proceeding, the magistrate applies the law to its findings of fact to reach a conclusion that a person either should or should not be committed. Because this conclusion is based in large part upon evidence that the magistrate alone had the opportunity to see and hear, it is not surprising that trial courts give great deference to the magistrate’s conclusions. Nevertheless, the law gives the trial court the power to reject the magistrate’s recommendation and substitute its own conclusions for those of the magistrate. See Bergh v. Bergh, 127 So.2d 481 (Fla. 1st DCA 1961). This court reviews the trial court’s decision to accept or reject the magistrate’s conclusions under the abuse of discretion standard. See Carls, 890 So.2d at 1138. Because the trial court sits in its reviewing capacity when it makes such a decision and because in most instances the district court will be reviewing identical information on appeal, the discretion afforded the trial court to override the magistrate is undoubtedly narrower than the discretion we provide to trial courts in a context where the trial court is making its own findings of fact.

We have completed our review of this case applying these standards of review and conclude that the trial court’s order on appeal should be affirmed.

Affirmed.

VILLANTI and CRENSHAW, JJ, Concur.

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Because of the due process life interest involved in the many appeals arising in the case of Theresa Schiavo, this court noted that we were applying a stronger standard of review than would be used in other contexts. See In re Guardianship of Schiavo, 851 So.2d 182, 186 (Fla. 2d DCA 2003). The liberty interest at stake in involuntary placement cases also justifies more scrutiny by both the trial judge and this appellate court.

      . This is arguably similar to the review we conduct for a second-tier certiorari proceeding, but clearly the review by direct appeal should be more rigorous in a Baker Act case than the review we provide in other contexts by common law certiorari. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (asserting that the district court's inquiry in a second-tier certiorari proceeding is "limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law").

      . We recognize that parties occasionally authorize the trial court to take additional evidence or even conduct a de novo evidentiary hearing in light of exceptions filed to a magistrate’s report. This case does not involve such a circumstance, which would undoubtedly alter our standard of review.


author: SUAREZ, J.

text:
    OPTIMUM NUTRITION, INC., Appellant, v. PERFORMANCE TRADING IMP. EXP & COM. LTD., Appellee.
    No. 3D10-3087.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff, Teresa Ragatz, Miami, and Carolina A. Latour, for appellant.
    Mario R. Delgado, for appellee.
    Before SUAREZ, CORTINAS and ROTHENBERG, JJ.
   SUAREZ, J.

Optimum Nutrition, Inc. (“Optimum”), appeals the trial court’s dismissal of its complaint for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). We reverse.

On July 29, 2010, the trial court issued a notice of lack of prosecution. On September 28, 2010, Optimum filed and served a motion for summary judgment. Optimum claims on appeal that the sixty-day period provided under Florida Rule of Civil Procedure Rule 1.420(e), which allows for conducting record activity after service of the notice of lack of prosecution, expired on October 4, 2010; therefore, dismissal for lack of prosecution was improper. Performance Trading contends that the sixty-day period expired on September 27, 2010.

Florida Rule of Civil Procedure 1.420(e) provides that a party has sixty days to conduct record activity after service of the notice of lack of prosecution in order to avoid dismissal under the rule. Florida Rule of Civil Procedure 1.090 provides for the computation of time in settling a dispute under the Florida Rules of Civil Procedure:

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.

Florida Rule of Civil Procedure 1.090(e) provides additional time when service is made by mail:

Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

The time period for an act to be computed after service of a notice, pleading, motion, order or paper served by mail includes five days which are added to the time. Fla. R. Civ. P. 1.090; see Palmer v. Palmer, 582 So.2d 639, 640 n. 1 (Fla. 3d DCA 1991). Because the notice of lack of prosecution was served by mail upon Optimum, an additional five days must be added to the safe-harbor period, meaning the period for conducting record activity did not actually expire until Monday, October 4, 2010. As Optimum filed and served its motion for summary judgment on September 28, 2010, it effectively “conducted record activity” within the meaning of Florida Rule of Civil Procedure 1.420(e), as the expiration of the time period for service did not expire until five days after September 28, 2010. Therefore, the dismissal of the compliant for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) was error.

Reversed and remanded for further proceedings.

      . (e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person....