text:
    In re AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR (BIANNUAL REPORT HOUSEKEEPING).
    No. SC10-1968.
    Supreme Court of Florida.
    July 7, 2011.
    John F. Harkness, Jr., Executive Director, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, FL, Nancy Wood Gregoire, of Kirschb-aum, Birnbaum, et al., Fort Lauderdale, FL, and Ramon A. Abadin, of Abadin Cook, Miami, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court on the petition of The Florida Bar proposing amendments to the Rules Regulating the Florida Bar. See R. Regulating Fla. Bar 1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.

The petition, which proposes amendments to existing rules, was approved by the Board of Governors. Formal notice of the proposed amendments was published in the September 1, 2010, issue of The Florida Bar News. In the notice, the Bar directed interested parties to file their comments directly with the Court. Thereafter, on October 15, 2010, the Bar filed the proposed amendments with the Court. No comments were filed with the Court.

The Bar states that the proposals involve editorial changes, updates of cross references to other Florida Bar rules, codification of well-established practices, and other noncontroversial revisions. Thus, the Bar refers to the proposals as “housekeeping” measures. The Bar petitions to amend Rules Regulating the Florida Bar 3-7.1 (Confidentiality); 3-7.3 (Review of Inquiries, Complaint Processing, and Initial Investigatory Procedures); 3-7.4 (Grievance Committee Procedures); 3-7.5 (Procedures Before the Board of Governors); 3-7.6 (Procedures Before a Referee); 4-1.10 (Imputation of Conflicts of Interest; General Rule); 4-1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees); 5-1.1 (Trust Accounts); 10-6.2 (Subpoenas); 10-6.3 (Recommendations and Disposition of Complaints); 10-7.1 (Proceedings for Injunctive Relief); 10-7.2 (Proceedings for Indirect Criminal Contempt); 10-8.1 (Confidentiality); 20-3.1 (Requirements for Registration); and 20-7.1 (Generally). After considering the Bar’s petition, the Court adopts The Florida Bar’s proposals, except as follows.

The Court modifies the proposals for rules 3-7.4(i) (Grievance Committee Procedures) and 3-7.6(h)(8) (Procedures Before a Referee). These proposals sought to present concise descriptions of methods to appoint a referee or a successor referee, and relied on the concepts of “venue” and “reside.” After reviewing the proposals, the Court has determined that these rules should use more expansive language because other factors could also merit consideration. Thus, the Court modifies the proposals for rules 3-7.4(l) and 3-7.6(h)(8) by using the comprehensive term “appropriate circuit.”

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The comments are offered for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective on October 1, 2011, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULES REGULATING THE FLORIDA BAR

RULE 3-7.1 CONFIDENTIALITY

(a)-(c) [No change]

(d) Limitations on Disclosure. Any material provided to The Florida Bar that is confidential under applicable law shall remain confidential and shall not be disclosed except as authorized by the applicable law. If this type of material is made a part of the public record, that portion of the public record may be sealed by the grievance committee chair, the referee, or the Supreme Court of Florida.

The procedure for maintaining the required confidentiality shall be as set forth in subdivision (m) below.

(e)-(I) [No change]

(m) Maintaining Confidentiality Required by Rule or Law. The bar will maintain confidentiality of documents and records in its possession and control as required by applicable federal or state law in accordance with the requirements of Fla. R. Jud. Admin 2.420. It shall be the duty of respondents and other persons submitting documents and information to the bar to notify bar staff that such documents or information contain material that is exempt from disclosure under applicable rule or law and to request that such exempt material be protected and not be considered public record. Requests to exempt from disclosure all or part of any documents or records must be accompanied by reference to the statute or rule applicable to the information for which exemption is claimed.

RULE 3-7.3 REVIEW OF INQUIRIES, COMPLAINT PROCESSING, AND INITIAL INVESTIGATORY PROCEDURES

(a) Screening of Inquiries. Prior to opening a disciplinary file, bar counsel shall review the inquiry made and determine whether the alleged conduct, if proven, would constitute a violation of the Rules Regulating The Florida Bar warranting the imposition of discipline. If bar counsel determines that the facts allege a fee dispute which, if proven, would probably not constitute a clear violation under 4-1.5 of the Rules Regulating-The-F-lorida Barthese rules, bar counsel may, with the consent of the complainant and respondent, refer the matter to the appropriate circuit arbitration-committee for arbitra-tionThe Florida Bar Grievance Mediation and Fee Arbitration Program under chapter 14. If bar counsel determines that the facts, if proven, would not constitute a violation of the Rules Regulating The Florida Bar warranting the imposition of discipline, bar counsel may decline to pursue the inquiry. A decision by bar counsel not to pursue an inquiry shall not preclude further action or review under the Rules Regulating The Florida Bar. The complainant and respondent shall be notified of a decision not to pursue an inquiry and shall be given the reasons therefor.

(b)-(g) [No change]

RULE 3-7.4 GRIEVANCE COMMITTEE PROCEDURES

(a)-(k) [No change]

(i) Preparation, Forwarding, and Review of Grievance Committee Complaints. If a grievance committee or the board of governors finds probable cause, the bar counsel assigned to the committee shall promptly prepare a record of its investigation and a formal complaint. The record before the committee shall consist of all reports, correspondence, papers, and/or recordings furnished to or received from the respondent, and the transcript of grievance committee meetings or hearings, if the proceedings were attended by a court reporter; provided, however, that the committee may retire into private session to debate the issues involved and to reach a decision as to the action to be taken. The formal complaint shall be approved by the member of the committee who presided in the proceeding. The formal complaint shall be in such form as shall be prescribed by the board. If the presiding member of the grievance committee disagrees with the form of the complaint, the presiding member may direct bar counsel to make changes accordingly. If bar counsel does not agree with the changes, the matter shall be referred to the designated reviewer of the committee for appropriate action. When a formal complaint by a grievance committee is not referred to the designated reviewer, or is not returned to the grievance committee for further action, the formal complaint shall be promptly forwarded to and reviewed by staff counsel who Staff counsel shall file the formal complaint? and furnish a copy of-the-formal complaint to the respondent. Staff counsel shall request the Chief Justice of the Supreme Court of Florida to assign a referee or to order the chief .judge of the appropriate circuit to assign a referee to try the cause. A copy of the record shall be made available to the respondent at the respondent’s expense.

If, at any time before the filing of a formal complaint, bar counsel, staff counsel, and the designated reviewer all agree that appropriate reasons indicate that the formal complaint should not be filed, the case may be returned to the grievance committee for further action.

(m)-(o) [No change]

(p) Preparation, Review, and Filing of Complaint, When a grievance committee formal complaint-is not referred to the disciplinary review committee^ or returned to-the grievance committee, staff counsel shall-sign the complaint and file the same in the Supreme Court of Florida, serve a copy-on the respondent, and-request the Supreme Court-of-Florida to-assign a referee-to try the-cause, — If probable cause is found by the board, bar-counsel will prepare the formal-complaint.

RULE 3-7.5 PROCEDURES BEFORE THE BOARD OF GOVERNORS

(a)-(f) [No change]

(g) Filing Service on Board of Governors. All matters to be filed with or served upon the board shall be addressed to the board of governors and filed with the executive director. The executive director or his designees shall be the custodians of the official records of The Florida Bar.

RULE 3-7.6 PROCEDURES BEFORE A REFEREE

(a)-(d) [No change]

(e) Style of Proceedings. All proceedings instituted by The Florida Bar shall be styled “The Florida Bar, Complainant, v. .(name of respondent)., Respondent,” and “In The Supreme Court of Florida (Before a Referee).”

(f)-(g) [No change]

(h)(1) — (7) [No change]

(8) Disqualification of Referee. Upon motion of either party, aA referee may be disqualified from service in the same manner and to the same extent that a trial judge may be disqualified under existing law from acting in a judicial capacity. In the event of ^disqualification, the chief justicejudge of the appropriate circuit shall appoint a successor referee from that same circuit.

(i)-(p) [No change]

RULE 4-1.6 CONFIDENTIALITY OF INFORMATION

(a)-(e) [No change]

Comment

The lawyer is part of a judicial system charged with upholding the law. One of the lawyer’s functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.

This rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client. See rule 4-1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, rule 4-1.9(bc) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client, and rules 4-1.8(b) and 4-1.9(b) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.

[No further changes]

RULE 4-1.10 IMPUTATION OF CONFLICTS OF INTEREST; GENERAL RULE

(a) [No change]

(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

(c) Representing Interests Adverse to Clients of Formerly Associated Lawyer. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

(1) [No change]
(2) any lawyer remaining in the firm has information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.
(d)-(e) [No change]
Comment

Definition of “firm” [No change]

Principles of imputed disqualification [No change]

Lawyers moving between firms [No change]

Confidentiality

Preserving confidentiality is a question of access to information. Access to information, in turn, is essentially a question of fact in particular circumstances, aided by inferences, deductions, or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussion of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not information about other clients.

Application of subdivisions (b) and (c) depends on a situation’s particular facts. In any such inquiry, the burden of proof should rest upon the firm whose disqualification is sought.

Subdivisions (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by rules 4-1.6 and 4-1.9(b) and (c). Thus, if a lawyer while with 1 firm acquired no knowledge or information relating to a particular client of the firm and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the 2 clients conflict.

Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See rules 4-1.6 and 4-1.9.

Adverse positions [No change]

RULE 4-1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

(a) Representation of Private Client by Former Public Officer or Employee. A lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to rule 4-1.9(b) and (c); and
(2) [No change]
(b)-(e) [No change]
Comment [No change]

RULE 4-1.12 FORMER JUDGE OR ARBITRATOR, MEDIATOR OR OTHER THIRD-PARTY NEUTRAL

(a)-(d) [No change]

Comment

This rule generally parallels rule 4-1.11. The term “personally and substantially” signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the comment to rule 4-1.11. The term “adjudicative officer” includes such officials as judges pro tempore, referees, special masters, hearing officers, and other parajudi-cial officers and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2), and C of Florida’s Code of Judicial Conduct provide that a part-time judge, judge pro tempore, or retired judge recalled to active service may not “act as a lawyer in a proceeding in which [the lawyer] has served as a judge or in any other proceeding related thereto.” Although phrased differently from this rule, those rules correspond in meaning.

Like former judges, lawyers who have served as arbitrators, mediators, or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See terminology. Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See rule 4-2.4.

Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under rule 4-1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, subdivision (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this subdivision are met.

Requirements for screening procedures are stated in terminology. Subdivision (c)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

A Florida Bar member who is a certified or court-appointed mediator is governed by the applicable law and rules relating to certified and court-appointed mediators.

RULE 4-1.17 SALE OF LAW PRACTICE

A lawyer or a law firm may sell or purchase a law practice, or an area of practice, including good will, provided that:

(a)-(f) [No change]
Comment

[No change]

Sale of entire practice or entire area of practice [No change]

Client confidences, consent, and notice [No change]

Fee arrangements between client and purchaser [No change]

Other applicable ethical standards

Lawyers participating in the sale of a law practice or a practice area are subject to the ethical standards applicable to involving another lawyer in the representation of a client for all matters pending at the time of the sale. These include, for example, the seller’s ethical obligation to exercise competence in identifying a purchaser qualified to assume the practice and the purchaser’s obligation to undertake the representation competently (see rule 4-1.1); the obligation to avoid disqualifying conflicts, and to secure the client’s informed consent for those conflicts that can be agreed to (see rule 4-1.7 regarding conflicts and see the terminology section of the preamble for the definition of informed consent); and the obligation to protect information relating to the representation (see rules 4-1.6, 4-1.8(b), and 4-1.9(b) and (c)). If the terms of the sale involve the division between purchaser and seller of fees from matters that arise subsequent to the sale, the fee-division provisions of rule 4-1.5 must be satisfied with respect to such fees. These provisions will not apply to the division of fees from matters pending at the time of sale.

If approval of the substitution of the purchasing attorney for the selling attorney is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be included in the sale (see rule 4-1.16).

Applicability of this rule [No change]

RULE L-2.4 LAWYER SERVING AS THIRD-PARTY NEUTRAL

(a)-(b) [No change]

Comment

Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute resolution processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator, or evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator, or decisionmaker depends on the particular process that is either selected by the parties or mandated by a court.

The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association, or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution. A Florida Bar member who is a certified or court-appointed mediator is governed by the applicable law and rules relating to certified or court-appointed mediators.

Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer’s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, subdivision (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this subdivision will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute resolution process selected.

A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer’s law firm are addressed in rule 4-1.12.

RULE 5-1.1 TRUST ACCOUNTS

(a)-(f) [No change]

(g) Interest on Trust Accounts (IOTA) Program.

(1) Definitions. As used herein, the term:

(A)“nNominal or short term” describes funds of a client or third person that, pursuant to subdivision (3), below, the lawyer has determined cannot earn income for the client or third person in excess of the costs to secure the incomes
(B) “Foundation” means The Florida Bar Foundation, Inc.f.
(C) “IOTA account” means an interest or dividend-bearing trust account benefiting The Florida Bar Foundation established in an eligible institution for the deposit of nominal or short-term funds of clients or third persons}.
(D)-(E) [No change]
(2)-(7) [No change]
(h)-(k) [No change]
Comment

A lawyer must hold property of others with the care required of a professional fiduciary. This chapter requires maintenance of a bank or savings and loan association account, clearly labeled as a trust account and in which only client or third party trust funds are held.

Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances.

All property that is the property of clients or third persons should be kept separate from the lawyer’s business and personal property and, if money, in 1 or more trust accounts, unless requested otherwise in writing by the client. Separate trust accounts may be warranted when administering estate money or acting in similar fiduciary capacities.

A lawyer who holds funds for a client or third person and who determines that the funds are not nominal or short-term as defined elsewhere in this subchapter should hold the funds in a separate interest-bearing account with the interest accruing to the benefit of the client or third person unless directed otherwise in writing by the client or third person.

Lawyers often receive funds from which the lawyer’s fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds must be kept in a trust account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.

Third parties, such as a client’s creditors, may have lawful claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. When the lawyer has a duty under applicable law to protect the third-party claim and the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, and, where appropriate, the lawyer should consider the possibility of depositing the property or funds in dispute into the registry of the applicable court so that the matter may be adjudicated.

The Supreme Court of Florida has held that lawyer trust accounts may be the proper target of garnishment actions. See Arnold, Matheny and Eagan, P.A. v. First American Holdings, Inc., 982 So.2d 628 (Fla.2008).

[No further changes]

RULE 10-6.2 SUBPOENAS

(a) Issuance by Court. Upon receiving a written application of the chair of the standing committee or of a circuit committee or bar counsel alleging facts indicating that a person or entity is or may be practicing law without a license and that the issuance of a subpoena is necessary for the investigation of such unlicensed practice, the clerk of the circuit court in which the committee is located or the clerk of the Supreme Court of Florida shall issue subpoenas in the name, respectively, of the chief judge of the circuit or the chief justice for the attendance of any person or production of books and records or both before counsel or the investigating circuit committee or any member thereof at the time and place designated in such application. Such subpoenas shall-be-returnable to-the circuit court of the-residence or place of business -of-the' person subpoenaed-; — A like subpoena shall issue upon application by any person or entity under investigation.

(b) Failure to Comply. Failure to comply with any subpoena shall constitute a contempt of court and may be punished by the Supreme Court of Florida or by the circuit court of the circuit torn which the subpoena is returnablewas issued or where the contemnor may be found.; — The circuit court-to which the subpoena is returnable shall-have power to enter by such orders as may be necessary for the enforcement of the subpoena.

RULE 10-6.3 RECOMMENDATIONS AND DISPOSITION OF COMPLAINTS

(a) Circuit Committee Action. Upon concluding its investigation, the circuit committee shall forward-a-report to bar counsel regarding the disposition of those cases closed, those cases where a cease and desist affidavit has been accepted, those cases where a cease and desist affidavit with monetary penalty has been recommended, and those cases where litigation is recommended. A majority of those present is required for all circuit committee recommendations; however, the vote may be taken by mail or telephone rather than at a formal meeting. All recommendations for a cease and desist affidavit with monetary penalty shall be reviewed by the standing committee for final approval. All recommendations for litigation under these rules shall be reviewed by the standing committee and a designated reviewer for final approval prior to initiating litigation.

(b)-(c) [No change]

RULE 10-7.1 PROCEEDINGS FOR IN-JUNCTIVE RELIEF

(a)-(e) [No change]

(f) Review by the Supreme Court of Florida.

(1) Objections to the report of the referee shall be filed with the court by any party aggrieved, within 30 days after the filing of the report, or in the case where a party seeks review of a referee’s denial to supplement or remove an item from the record, within 30 days after the court issues its ruling on that matter. Denial of a motion to supplement the record or to remove an item from the record may be reviewed in the same manner as provided for in the rule on appellate review under these rules.
If the objector desires, a brief or memorandum of law in support of the objections may be filed at the time the objections are filed. Any other party may file a responsive brief or memorandum of law within 20 days of service of the objector’s brief or memorandum of law. The objector may file a reply brief or memorandum of law within 4020 days of service of the opposing party’s responsive brief or memorandum of law. Oral argument will be allowed at the court’s discretion and will be governed by the provisions of the Florida Rules of Appellate Procedure.
(2) [No change]

(g) [No change]

RULE 10-7.2 PROCEEDINGS FOR INDIRECT CRIMINAL CONTEMPT

(a) [No change]

(b) Indigency of Respondent. Any respondent who is determined to be indigent by the referee shall be entitled to the appointment of counsel.

(1) [No change]
(2) Determination. After reviewing the affidavit and questioning the respondent, the referee shall make one of the following determinations: the respondent is indigent* or the respondent is not indigent.
In making this determination, the referee shall consider the applicable statutory criteria used by the clerk of court when determining indigent status and the applicable statutory factors considered by a court when reviewing that determination.

(c)-(d) [No change]

(e) Review by the Supreme Court of Florida. The judgment and recommended sentence, upon a finding of “guilty,” together with the entire record of proceedings shall then be forwarded to this court for approval, modification, or rejection based upon the law. The respondent may file objections, together with a supporting brief or memorandum of law, to the referee’s judgment and recommended sentence within 30 days of the date of filing with the court of the referee’s judgment, recommended sentence, and record of proceedings, or in the case where a party seeks review of a referee’s denial to supplement or remove an item from the record, within 30 days after the court issues its ruling on that matter. Denial of a motion to supplement the record or to remove an item from the record may be reviewed in the same manner as provided for in the rule on appellate review under these rules.

The Florida Bar may file a responsive brief or memorandum of law within 20 days after service of respondent’s brief or memorandum of law. The respondent may file a reply brief or memorandum of law within 1020 days after service of The Florida Bar’s responsive brief or memorandum of law.

(f)-(g) [No change]

RULE 10-8.1 FILES

(a)-(d) [No change]

(e) Response to Inquiry. Representatives of The Florida Bar, authorized by the board of governors, shall reply to inquiries regarding a pending or closed unlicensed practice of law investigation as follows:

(1) — (8) [No change]
(4) Final Action by Circuit Committee, Standing Committee, Designated Reviewer, and Bar Counsel. The final action on investigations opened on or after November 1, 1992, shall be public information. The UPL record in cases opened on or after November 1, 1992, that are closed by the circuit committee, the standing committee, or bar counsel as provided elsewhere in these rules, cases where a cease and desist affidavit has been accepted, and cases where a litigation recommendation has been approved by a designated reviewer as provided elsewhere in these rules, shall be public information and may be provided upon specific inquiry except that information that remains confidential under rule 10-8.1(c). The Florida Bar may charge a reasonable fee for identification of and photocopying the documents.

(f)-(i) [No change]

RULE 20-3.1 REQUIREMENTS FOR REGISTRATION

In order to be a Florida Registered Paralegal under this chapter, an individual must meet 1 of the following requirements.

(a) Educational and Work Experience Requirements. A person may become a Florida Registered Paralegal by meeting 1 of the following education and paralegal work experience requirements:

(1) [No change]
(2) a bachelor’s degree or higher degree other than a juris doctorate from an institution accredited by a nationally recognized accrediting agency approved by the United States Department of Education or the Florida Department of Education, plus a minimum of 3 years of paralegal work experience;
(3)-(5) [No change]

(b)-(c) [No change]

RULE 20-7.1 GENERALLY

A Florida Registered Paralegal shall adhere to the following Code of Ethics and Responsibility:

(a) Disclosure. A Florida Registered Paralegal shall disclose his or her status as a Florida Registered Paralegal at the outset of any professional relationship with a client, attorneyslawyers, a court or administrative agency or personnel thereof, and members of the general public. Use of the initials FRP meets the disclosure requirement only if the title paralegal also appears. For example, J. Doe, FRP, Paralegal. Use of the word “paralegal” alone also complies.

(b)-(h) [No change]

      . In addition, the Bar is proposing amending the comments to rules 4-1.6 (Confidentiality of Information); 4 — 1.12 (Former Judge or Arbitrator, Mediator or Other Third-Party Neutral); 4-1.17 (Sale of Law Practice); and 4-2.4 (Lawyer Serving as Third-Party Neutral).


source: Caselaw Access Project

author: CANADY, C.J.

license: Public Domain

text:
    Harold GOVONI, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-2023.
    Supreme Court of Florida.
    July 7, 2011.
    William Donald Matthewman of Seiden, Alder and Matthewman, Coral Springs, FL, and Paul Morris, Miami, FL, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee, FL, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   CANADY, C.J.

We have for review Govoni v. State, 17 So.3d 809 (Fla. 4th DCA 2009), in which the Fourth District Court of Appeal determined that the trial court did not err in denying Govoni’s motion to dismiss filed pursuant to section 776.032(1), Florida Statutes (2008), Florida’s “Stand Your Ground” law. After reasoning that the trial court must deny such a motion where there are disputed issues of material fact, the Fourth. District denied Govoni’s petition for a writ of prohibition and certified conflict with Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending disposition of Dennis v. State, 51 So.3d 456 (Fla.2010), in which we determined that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. In so holding, this Court approved the reasoning of Peterson on the conflict issue.

Following that decision, we issued an order directing the State to show cause why this Court should not exercise jurisdiction in the instant case, summarily quash the decision on review, and remand for reconsideration in light of Dennis. The State has filed a response conceding that “given the procedural posture of this case ... this cause should be remanded for reconsideration.”

We accordingly grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District for reconsideration upon application of this Court’s decision in Dennis.

Furthermore, Govoni’s motion to extend time for serving his jurisdictional brief is hereby denied as moot.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


author: TAYLOR, J.

text:
    Charles KURECKA, Appellant, v. STATE of Florida, Appellee. State of Florida, Appellant, v. James J. Power, Appellee.
    Nos. 4D08-2154, 4D08-3221.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2010.
    Rehearing Denied April 8, 2011.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for Appellant Charles Kurecka.
    Bill McCollum, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellee State of Florida (Case No. 4D08-2154).
    Bill McCollum, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellant State of Florida (Case No. 4D08-3221).
    Ira D. Karmelin, West Palm Beach, for Appellee James J. Power.
   ON MOTION FOR CLARIFICATION, REHEARING, REHEARING EN BANC AND CERTIFICATION

TAYLOR, J.

We deny appellee’s motion for rehearing, rehearing en bane, and certification, but substitute the following opinion in place of our previously issued opinion, 35 Fla. L. Weekly D666 (Fla. 4th DCA Mar.24, 2010), to clarify the procedural history contained in the first paragraph of page one of the opinion.

These consolidated appeals present the same issue concerning whether the defendants’ refusal to submit to a breath test, following their arrest for driving under the influence (DUI), should have been suppressed. The defendants, Charles Kurec-ka and James J. Power, moved to suppress evidence of their refusal, based on their mistaken belief that they had a right to counsel before deciding whether to submit to breath testing. A circuit court judge temporarily sitting as a county court judge denied Kurecka’s motion to suppress, and Kurecka subsequently appealed his DUI conviction. A county court judge granted Power’s motion, and the state appealed the suppression order. Because the orders under review contained a question certified to be of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(b)(4), the appeals were transferred to our district court of appeal. After accepting jurisdiction in these cases, we consolidated them for review.

Kurecka v. State

Charles Kurecka was involved in an automobile accident on August 24, 2005. Officer Joseph Rubin of the Greenacres Department of Public Safety responded to the scene of the accident and conducted a DUI investigation. After performing field sobriety exercises, Kurecka was arrested for DUI and transported to the Green-acres Public Safety Department. At the police station, he refused to submit to an alcohol breath test. Kurecka later filed a pre-trial motion to suppress his refusal.

At the hearing on Kurecka’s motion to suppress his refusal to submit to breath testing, the parties stipulated to the facts recited in the order denying the motion to suppress:

On August 24, 2005, after being arrested for DUI, Defendant was requested by law enforcement to submit to breath testing. Upon hearing the request, Defendant requested to speak with an attorney. Prior to requesting Defendant to submit to breath testing, law enforcement had not advised Defendant of his Miranda rights. As such, Defendant’s desire for counsel was not premised upon law enforcement advice, but his own belief that he needed to speak with an attorney. Law enforcement did not inform Defendant that he did not have a right to speak with counsel prior to deciding to take or refuse breath testing. Because he wanted to speak with counsel first, Defendant refused to submit to breath testing.

During argument on the motion to suppress, defense counsel conceded that Ku-recka did not have a right to a lawyer before deciding whether to take a breath test. He further acknowledged that Ku-recka was not misled by law enforcement regarding his right to speak with an attorney and that his confusion stemmed from his own misunderstanding of the law. Nonetheless, he argued that Kurecka’s refusal should not be admitted at trial as evidence because his refusal does not show consciousness of guilt, but mere confusion on his part.

In denying the motion to suppress, the court declined to apply the confusion doctrine to Kurecka’s refusal to submit to breath testing since his confusion about the right to counsel did not derive from any action by law enforcement. Citing State v. Wymer, 4 Fla. Supp. 113a (Fla. Hillsborough Cty. Ct.1995), the court denied the motion to suppress and certified a question of great public importance. We rephrase the question as follows:

IF THE CONFUSION DOCTRINE EXISTS IN FLORIDA, DOES IT APPLY WHEN LAW ENFORCEMENT FAILS TO ELIMINATE A DEFENDANT’S CONFUSION ABOUT THE RIGHT TO COUNSEL BEFORE SUBMITTING TO A BREATH TEST EVEN THOUGH LAW ENFORCEMENT DID NOT CAUSE THE CONFUSION?

We answer the question in the negative and affirm the order denying Kurecka’s motion to suppress his refusal to submit to the breath test.

At Kurecka’s trial, the state argued during closing that appellant’s refusal to submit to the breath test showed consciousness of guilt, stating:

And, why does he refuse the breath test? Because he knows, he knows he’s over the legal limit, he knows he’s impaired, he knows his normal faculties are impaired and that’s why he refuses to give a sample of his breath for testing.

In his closing argument, Kurecka offered the following explanation for refusing to submit to a breath test:

DEFENSE ATTORNEY: The State wants you to believe and wants you to use the evidence of the refusal to submit to testing as an indication of guilt. I’m sorry, that’s not what the evidence supports. Rubin asked Chuck Kurecka to submit to the breath test. He asked him, something that has a legal ramification. And, Chuck Kurecka made an intelligent, rational, sober, request. I’d like to talk to a lawyer.
Now, whether he was or wasn’t entitled to talk to a lawyer at that point is not at issue here. What is at issue, is his state of mind. I’d like to talk to a lawyer. Did Rubin say to him, sir you can’t talk to a lawyer. You’re not allowed to talk to a lawyer? Did he say wait, let me go get a phone, you can talk to whoever you want? No, he said nothing about it. And, simply said if you refuse your license is suspended etcetera.

The jury found Kurecka guilty of DUI causing injury to person or property.

State v. Power

James J. Power was arrested for DUI on December 23, 2000 after he was stopped for speeding. He was taken to the Breath Alcohol Testing Center for breath testing and questioning. In response to routine booking questions and a request to submit to breath testing, Power responded that he wanted a lawyer. He moved to suppress the question-and-answer session and his refusal to submit to breath testing.

At the hearing on Power’s motion to suppress, the state played a videotape of the events that took place at the breath testing facility. The video recording showed that Sergeant Gray asked Power, a former police officer, his name, current address, date of birth, and height and weight. To each question Power responded either, “I want a lawyer” or simply “A lawyer.” Then the following exchange took place:

Q: All right. I am now requesting you to submit to a true test of your breath for the purpose of determining your alcohol content? Will you submit to the breath test?
A: Lawyer.
Q: Lawyer? That means no, right?
A: Get a lawyer.
Q: Okay. I’m gonna assume that by not saying yes you’re saying no, you want a lawyer.
A: A lawyer.
Q: Am I correct in what I’m assuming?
A: A lawyer, yes.

The sergeant read the implied consent law to Power and advised him of the consequences of refusing the test, including suspension of his license and admission of his refusal as evidence in any criminal proceeding. Sergeant Gray did not repeat his request for Power to take the breath test; however, he interpreted Power’s actions as a refusal to submit to breath testing. The officer then read Power his Miranda rights. After ascertaining that Power understood them, he asked him if he wanted to answer any questions. Power shook his head to indicate a negative response, and when asked if he had anything to add, he stated, ‘Yea, I want a lawyer.”

At a continuation of the suppression hearing, Sergeant Gray testified that Power was not read Miranda warnings before his arrest or before the request for a breath test. He said that he knew Power was not entitled to counsel prior to submitting to breath testing, but acknowledged that he did not advise Power of this fact when he requested counsel. Sergeant Gray testified that Power was briefly employed as a police officer; however, he did not know the length of Power’s law enforcement service or the extent of his training and experience.

The trial court granted Power’s motion to suppress. First, the court ruled that the question-and-answer session that followed the Miranda warnings had to be suppressed because Power had previously invoked his right to counsel. Then, as to Power’s refusal to submit to breath testing, the court stated the following:

There is no question that Defendant, in the Instant Cause, made his belief that he was entitled to counsel known to Sergeant Gray. However, it is equally without question that Sergeant Gray did not cause Defendant’s incorrect belief. Thus, the Court must determine if a mistaken belief in the right to counsel prior to breath testing, not created by law enforcement but made known to law enforcement, results in the suppression of the refusal to submit to breath testing, if law enforcement does not correct the Defendant’s mistaken belief. The Court believes this question can only be answered in the affirmative.

The trial court, in essence, applied the confusion doctrine and expanded it, reasoning that there was no logical basis for distinguishing between defendants who were confused by law enforcement and those whose internal confusion was left uncorrected by law enforcement. The court then certified the following as a question of great public importance:

DOES A DEFENDANT’S MISTAKEN BELIEF IN THE RIGHT TO COUNSEL PRIOR TO BREATH TESTING, NOT CREATED BY LAW ENFORCEMENT, BUT MADE KNOWN TO LAW ENFORCEMENT, REQUIRE THE SUPPRESSION OF THE REFUSAL TO SUBMIT TO BREATH TESTING IF LAW ENFORCEMENT DOES NOT CORRECT THE DEFENDANT’S MISTAKEN BELIEF?

We answer the question in the negative and reverse the order suppressing Power’s refusal to submit to the breath test.

Analysis

“A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009) (citing State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001)). In this case, the underlying facts are undisputed. Because there is no issue as to the facts of this case, but rather a question of law, we apply a de novo standard of review to the court’s application of the law to the facts. Id.

It is well-settled in Florida that a person arrested for DUI does not have the right to consult with counsel before deciding whether to submit to a breath test. Nelson v. State, 508 So.2d 48, 49 (Fla. 4th DCA 1987) (citing State v. Hoch, 500 So.2d 597, 599-600 (Fla. 3d DCA 1986) (holding that (1) administration of a breath test is not a critical stage of the proceedings to which a Sixth Amendment right to counsel attaches; (2) the results of a breath test are physical evidence — not testimonial— and thus no Fifth Amendment right to counsel attaches; and (3) because an accused has no right to refuse to take the test — only an option to refuse — there can be no denial of due process)); State v. Burns, 661 So.2d 842, 848 (Fla. 5th DCA 1995) (holding that a defendant’s refusal to submit to a breath test is admissible because administering a breath test and having a defendant perform a field sobriety task on videotape are “nothing more than the collection and preservation of physical evidence ... and do not constitute a crucial confrontation requiring the presence of defense counsel”).

The issue debated here is whether a DUI suspect, who exhibits a mistaken belief that he has a right to consult with counsel before deciding whether to take the breath test, is entitled to have his refusal to take the test excluded as evidence of consciousness of guilt when law enforcement failed to correct his misunderstanding, or confusion, even though the confusion was not created by law enforcement.

Under a judicially created exclusionary rule, known as the “confusion doctrine,” “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Ringel v. State, 9 Fla.Supp. 678a (Fla. 18th Cir.Ct.2002). The doctrine is usually invoked by drivers as a defense to a license suspension or revocation. In most instances, the drivers assert that, because the police officer contemporaneously advised them of their Miranda rights (right to refuse interrogation and to have an attorney present at all stages of an interrogation) and read them the requirements and sanctions of the implied consent law, they believed that they could consult with counsel before deciding whether to submit to breath testing. They contend that they should not be held strictly accountable for refusing to take a breath test and suffer a license suspension or revocation when the officer confused them about their right to counsel. See, e.g., Calvert v. State, 184 Colo. 214, 519 P.2d 341 (1974).

The confusion doctrine has been adopted by courts in several states and considered by a few courts in Florida. Florida courts that have applied the doctrine have rendered conflicting opinions on its applicability and scope. See Ringel, 9 Fla. Supp. 678a; State v. Alves, 3 Fla. Supp. 553a (Fla. Orange Cty. Ct.1995); Wymer at 113a. The only Florida district court to consider the concept did so in the context of a license suspension administrative hearing. See Dep’t of Safety & Motor Vehicles v. Marshall, 848 So.2d 482 (Fla. 5th DCA 2003). In Marshall, the fifth district did not decide whether the confusion doctrine existed in Florida. It determined only that the evidence in that case did not support the licensee’s claim that she was told by police that she could consult with an attorney prior to deciding whether to submit to a breath test. Consequently, the court quashed the circuit court’s decision to reverse an administrative final order of driver’s license suspension.

As the eighteenth circuit noted in Ringel, courts that have addressed the confusion doctrine have done so with mixed results, from outright rejecting it to liberally applying it to excuse a defendant’s refusal to submit to a breath test when law enforcement failed to affirmatively advise the driver that Miranda rights do not apply to the decision to take the test. The defendants in this appeal seek application of the doctrine to exclude evidence of their refusal at trial. According to the defendants, confusion over one’s rights, regardless of the source, negates “consciousness of guilt,” which is the evidentiary basis for admitting the refusal.

In Ringel, the driver sought certiorari review of an order of the Department of Highway Safety and Motor Vehicles upholding the suspension of his license for refusal to submit to a breath test. He testified at his formal review hearing that he did not take the breath test because he thought he was entitled to an attorney prior to deciding whether to take the test, due to the previously administered Miranda warnings. The arresting officer had given him Miranda warnings at the scene and then later read the implied consent warning at the police station before he refused to take the test.

The circuit court found persuasive the reasoning of those jurisdictions that excused the refusal to submit to the test when the accused was confused about his rights by the actions of a law enforcement officer and actually conveyed that confusion to the officer. The court observed as follows:

Generally these jurisdictions require the licensee to express confusion about his or her rights when asked to take a breath test, typically by requesting consultation with an attorney first. If the licensee does express confusion, law enforcement must explain to the licensee that Miranda rights do not apply to the decision to take a breath test and that the licensee is not entitled to speak to an attorney prior to deciding whether to take the test. If law enforcement does not provide this explanation and the licensee testifies that he or she refused to take the test because of the mistaken impression that he or she could do so without suffering adverse consequences, due to the prior administration of the Miranda warning, then the refusal will be deemed to be unknowing and involuntary and will not be held against the licensee.

Ringel, 9 Fla. Supp. 678a.

Incorporating this approach into Florida’s implied consent procedures, the circuit court stated:

In Florida, a licensee is given the implied consent warning prior to being requested to submit to a breath test. If, after receiving the implied consent warning, the licensee is still confused about the applicability of Miranda rights to the decision to take a breath test, the licensee should make that confusion known to law enforcement, so that law enforcement is aware that further explanation is necessary.

Id.

In Ringel, however, because the driver did not testify that he communicated his confusion to law enforcement, the court found that his refusal to take a breath test should not be excused. The court therefore denied his petition.

In Alves, the county court found that the confusion doctrine applied to the facts in that case because the defendant was read his Miranda rights, emphatically requested the opportunity to speak to a lawyer when he was requested to take a breath test, and it was never explained that the Miranda rights previously read were not applicable to the implied consent procedure for the breath test. The circuit court explained that “[i]f a defendant is led to believe by State action that he/she is taking a ‘safe harbor’ by taking a certain course of conduct, the exercise of such action by the defendant is inadmissible at trial.” Id. (citing South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)). The court further stated that the defendant did not demonstrate consciousness of guilt since he was led to reasonably believe that he was exercising a right that did not actually exist. Id.

In Wymer, the county court distinguished the facts in Alves and held that the confusion doctrine was limited to situations where the defendant is advised of his Miranda rights “and is then given implied consent advice, and when he thereafter asks for counsel, is told that he has no right to counsel with respect to this breath test, after having been told he has a right to counsel before making any statements.”

Other states that have adopted the confusion doctrine, at least as a defense to license suspension or revocation, include Alaska, California, Colorado, Hawaii, Minnesota, Nebraska, New Jersey, North Dakota, and Pennsylvania. Because some states recognize that the juxtaposition of the Miranda warnings (right to refuse interrogation and to have an attorney present at all stages of an interrogation) with the implied consent warnings (no right to refuse a test) is likely to induce confusion, they require that law enforcement always advise a defendant that the rights contained in the Miranda warnings do not apply to the breathalyzer examination; others require that law enforcement do so only if the defendant actually exhibits confusion.

In the State of Washington, so long as the defendant is advised that his refusal will lead to license suspension, the confusion doctrine does not apply. See State v. Staeheli, 102 Wash.2d 305, 685 P.2d 591 (1984). Illinois has likewise chosen not to adopt the confusion doctrine because the wording of the Illinois implied consent statute does not require that a refusal to submit to a breath test be made with full knowledge of the defendant’s rights and the possible consequences. People v. Mucha, 140 Ill.App.3d 788, 95 Ill.Dec. 42, 488 N.E.2d 1385 (1986). Similarly, Mississippi has decided not to adopt the confusion doctrine because its implied consent statute does not require a knowing refusal; confusion is immaterial as to the defendant’s rights once implied consent is read. Sheppard v. Miss. State Highway Patrol, 693 So.2d 1326 (Miss.1997).

Here, the defendants urge us to follow the approach of the Supreme Court of Pennsylvania, which expanded the confusion doctrine to require police officers to inform suspects who request a lawyer that the right to counsel does not apply to their decision to submit to breath testing. Power notes that, as recognized by the United States Supreme Court, Miranda warnings have become part of our national culture. As such, he argues, if a suspect incorrectly requests counsel even though Miranda rights have not been read, law enforcement should be required to advise suspects that Miranda rights do not apply to the taking or refusal of a breath test. The Supreme Court of Pennsylvania in Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), held that police officers have a duty to issue a warning that Miranda rights do not apply to the implied consent setting. The court stated:

where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.

Id. at 878.

The court explained that its holding was prompted by concern that defendants confused by police conduct might be “misled into making uninformed and unknowing decisions to take the test.” Id. Later, the Pennsylvania Supreme Court extended the requirement of the “O’Connell warning” to situations where defendants had not been confused by a previous reading of the Miranda warnings. See Commonwealth, Dep’t of Transp. v. Scott, 546 Pa. 241, 684 A.2d 539, 546 (1996); Commonwealth, Dep’t of Transp. v. McCann, 533 Pa. 456, 626 A.2d 92, 93-94 (1993). However, the O’Connell line of cases spawned uncertainty and confusion in Pennsylvania’s implied consent laws and led to a flood of pre-trial litigation and appeals. See State v. Reitter, 227 Wis.2d 213, 595 N.W.2d 646, 654 n. 10 (1999). The Wisconsin Supreme Court disagreed with Pennsylvania’s expansion of the confusion doctrine, stressing that the confusion doctrine is “premised on a reading of Miranda rights and a showing that the defendant actually was ‘confused.’” Id. at 654. It went on to explain that Wisconsin declined to adopt the confusion doctrine because their implied consent statute does not require that police officers advise suspects that the right to counsel does not attach in the implied consent setting; it said it was unwilling “to impose duties beyond those created by the legislature.” Id. at 655. The Wisconsin court stated:

Requiring officers to address nonexistent rights undercuts the “simple and straightforward” approach and risks confusing a potentially intoxicated defendant. If police move beyond the consistent statutory procedures and attempt to explain the law’s parameters, defendants will ignite the confusion defense. Explanations that exceed the statute’s language would case an “oversupply of information” and encourage “misled” defendants to challenge an officer’s compliance with statutory requirements. This result would frustrate the legislature’s intention to facilitate drunk driving convictions by offering defendants an avenue for litigating which presumed rights merit inclusion in an officer’s explanation.

Id. at 655 (citing Ozaukee v. Quelle, 198 Wis.2d 269, 542 N.W.2d 196 (1995) and Oregon v. Village of Bryant, 188 Wis.2d 680, 524 N.W.2d 635 (1994)).

Similarly, Florida’s implied consent statute does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statute requires only that the person be told that his failure to submit to the test will result in a suspension of the privilege to drive for a period of time and that a refusal to submit can be admitted at trial. The implied consent statute establishes a presumption that those who have elected to enjoy the privilege of driving will, in turn, be required to submit to chemical testing if they are suspected of driving under the influence. See §§ 316.1932, 316.1933, and 316.1934, Fla. Stat.; State v. Busciglio, 976 So.2d 15, 19-20 (Fla. 2d DCA 2008) (explaining that by exercising the privilege to drive, all drivers have already consented to taking a breath test pursuant to section 316.1932). The licensed driver in Florida, having already consented to the test, is thus not entitled to secure the advice of an attorney. Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.

As we have explained in the past, the purpose of judicially imposed exclusionary rules is to “deter police misconduct resulting in constitutional violations, or its equivalent.” Rice v. State, 525 So.2d 509, 511 (Fla. 4th DCA 1988) (holding that a deputy’s decision not to offer the defendant a pre-arrest breath test did not rise to the level of a constitutional violation). If a statute does not expressly list the exclusionary rule as a remedy, the Florida Supreme Court will “not infer that this remedy is available for violations of the statute — regardless of its effectiveness as a deterrent or how desirable or beneficial we believe the exclusion may be.” Jenkins v. State, 978 So.2d 116, 130 (Fla.2008). Courts must look at the terms of the statute at issue and the legislative intent rather than to “judge-made exceptions to judge-made rules” when deciding whether to suppress evidence. Id. (citing Davis v. State, 529 So.2d 732, 733 (Fla. 4th DCA 1988)). See State v. Gunn, 408 So.2d 647, 649 (Fla. 4th DCA 1981) (explaining that “[w]e find no legislative intent to impose a further sanction on the state by excluding as evidence the results of a chemical test administered to a driver (who has not affirmatively revoked the statutory consent) merely because of his not being informed, prior to testing, of the consequences should testing be refused.”); State v. Iaco, 906 So.2d 1151, 1153 (Fla. 4th DCA 2005) (finding that suppression of physical evidence based on law enforcement’s intentional failure to read all the consequences of refusal to submit to test was prohibited).

Here, the implied consent warnings read to the defendants did not violate any statutory or constitutional provisions, and they were not otherwise deficient so as to justify the extreme sanction of suppression. Moreover, under the implied consent statute, a defendant is not precluded from explaining to the jury his reasons for refusing to take the breath test. The defendant can himself introduce refusal evidence, along with other testimony concerning the circumstances of refusal, which may militate in his favor and counter the state’s consciousness-of-guilt argument. See Commonwealth v. Ruttle, 388 Pa.Super. 262, 565 A.2d 477 (1989). A defendant can testify, as did Kurecka, that he refused to take the breath test — not to conceal evidence of his alleged intoxication — but because he believed he was wrongfully denied the right to first consult with an attorney.

Conclusion

Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida. And though we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant’s confusion about the right to counsel for breath testing, the cases before us do not present those circumstances. Here, the undisputed facts show that the defendants’ confusion was not officer-induced. The arresting officers did not advise the defendants of their Miranda rights before or during their reading of the implied consent law.

As discussed above, our implied consent statute does not obligate a police officer to advise an accused that the right to counsel does not apply to the breath test setting. However, we see no harm in placing a minimal burden on officers to briefly explain this to suspects who request counsel when asked to submit to a breath test. Such an explanation would clear up a suspect’s confusion and ensure that refusals admitted into evidence at trial are, in fact, knowing and voluntary refusals that show “consciousness of guilt.” We believe that responsible police practice “should lead professional, courteous officers to advise insistent defendants that the right to counsel does not apply to chemical tests. Where a driver repeatedly asks to speak with an attorney, it would be courteous and simple for the officer to correct the accused’s mistaken assumptions.” Reitter, 595 N.W.2d at 655.

Of course, we cannot impose duties beyond those created by the legislature. The implied consent statute was enacted to assist in the prosecution of drunk drivers. Determining whether informing a suspect that he does not have the right to an attorney for breath testing purposes — as part of the implied consent warning — supports or frustrates the goal of gathering evidence for these cases is a matter for the legislature to decide.

For the reasons discussed above, we affirm the judgment of conviction in Kurecka v. State, 4D08-2154, and reverse the order of suppression in State v. Power, 4D08-3221.

HAZOURI, J., and BEACH, MARCIA, Associate Judge, concur.

      . See, e.g., Graham v. State, 633 P.2d 211 (Alaska 1981); Calvert v. State, 184 Colo. 214, 519 P.2d 341 (1974); McDonnell v. Dep’t of Motor Vehicles, 45 Cal.App.3d 653, 119 Cal.Rptr. 804 (1975); Rust v. Dep’t of Motor Vehicles, 267 Cal.App.2d 545, 73 Cal.Rptr. 366 (1968); State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975); State v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971); Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973); Rawlings v. Police Dep’t of Jersey City, N.J., 133 N.J. 182, 627 A.2d 602 (1993); Ehrlich v. Backes, 477 N.W.2d 211 (N.D.1991); Commonwealth, Dep’t of Transp. v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).

      . Other states have rejected the Pennsylvania policy. Sheppard v. Miss. State Highway Patrol, 693 So.2d 1326, 1330 (Miss.1997) (finding that implied consent statute only requires that suspect be told of the consequences of his refusal without discussion of his rights); People v. Mucha, 140 Ill.App.3d 788, 95 Ill.Dec. 42, 488 N.E.2d 1385, 1389 (1989) (same); Schroeder v. Nevada, Dep't of Motor Vehicles, 105 Nev. 179, 772 P.2d 1278, 1279 (1989) (same); State v. Stewart, 286 Ga.App. 542, 649 S.E.2d 525 (2007) (rejecting claim that suspect's confusion requires suppression of his refusal to submit, explaining that to allow an intoxicated person to profess an inability to comprehend the implied consent law and thereby escape punishment for avoiding detection would render the law meaningless).

      . See State v. Taylor, 648 So.2d 701, 704-05 (Fla.1995) (recognizing the legislature's authority to enact statute that permits evidence of a driver’s refusal at any subsequent trial); State v. Bender, 382 So.2d 697 (Fla.1980) (recognizing compelling state interest in highway safety justifies suspension of drivers’ licenses for refusing to take breath test); Smith v. State, 681 So.2d 894 (Fla. 4th DCA 1996) (recognizing that refusal to submit to chemical test after reading of implied consent law is admissible).


author: PER CURIAM.

text:
    In re COMMITMENT OF Ronald MOREL, Ronald Morel, Appellant, v. George Sheldon, Secretary, Department of Children and Family Services, Appellee.
    No. 2D09-2096.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    Ronald Morel, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan A. Maher, Assistant Attorney General, Tampa, for Appellee.
   CERTIFICATION OF ORDER REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT

PER CURIAM.

Ronald Morel appeals an order denying his emergency petition for habeas corpus relief. As explained below, we conclude and, thus, certify that the order requires immediate resolution by the supreme court because the issues pending in the district court have a great effect on the proper administration of justice throughout the state. See Fla. R.App. P. 9.125. We recognize that such a certification is an extraordinary step, but the issues raised in this case involve potentially serious violations of constitutional rights, not only for Mr. Morel but for other detainees similarly situated. Neither this court nor the trial court would appear to have the clear authority to provide a remedy even to determine whether the claims have merit. Without guidance from the supreme court, we do not know how to proceed with this case.

Mr. Morel is detained by the Department of Children and Family Services in Arcadia, Florida, as a pretrial civil detainee awaiting an outcome in the Jimmy Ryce proceeding that the State filed against him in Broward County in 2002. That facility in DeSoto County is in the Twelfth Judicial Circuit and within the jurisdiction of this district court of appeal. It houses detainees under the Jimmy Ryce Act from throughout Florida. A petition to establish the State’s right to detain such an individual is filed in the circuit where the individual was last convicted of a sexually violent offense. § 394.913(1), .9135(3), Fla. Stat. (1999-2010). Thus, it is not unusual for both the circuit court in DeSoto County and this district court to have no territorial jurisdiction over the forum in which the civil proceeding is pending.

In this case, Mr. Morel filed his pro se emergency petition alleging that he was being denied treatment necessary to obtain his release. He requested that the circuit court in DeSoto County order his immediate release and order the dismissal of the petition pending in circuit court in Broward County. The trial court denied the petition without explanation and Mr. Morel appealed to this court.

The Department of Children and Families has responded to the appeal, arguing that it has no statutory or constitutional duty to provide treatment to a detainee whose status is that of “awaiting the commitment trial.” It takes the position that it is obligated to detain indefinitely any individual for whom it receives an order determining probable cause and a warrant for custodial detention and that it is not the responsibility of the Department to see that the petition for commitment is resolved in circuit court in any timely fashion. It may well be correct in its position.

On the other hand, the Department has provided this court with the docket of the proceeding pending in Broward County. That civil case was filed in April 2002, more than eight years ago. Beginning in October 2002, the clerk appears to have treated the file as a closed file. The reason for this is unclear, but perhaps the new civil proceeding was filed in the old criminal case. Since late 2003, it does not appear that any meaningful prosecution has taken place in this case. Between November 2, 2006, and September 3, 2010 — a period of nearly four years — nothing transpired on the docket. A notice for trial was apparently filed on September 3, 2010, a few days after this court issued an order to show cause why the petition for habeas corpus should not be granted.

This court, as is common in such habeas proceedings, has virtually no record information. We have no information about the causes of delay in this case. We do not even know the name of the attorney representing Mr. Morel in Broward County. On the other hand, it appears without much dispute that — for whatever reason— Mr. Morel has been civilly detained for eight years without treatment or trial.

As a practical matter, we do not see a method for the circuit court in DeSoto County to oversee the Department’s treatment of detainees or the conditions of their confinement based on pro se pleadings filed by detainees who are usually provided with attorneys in their civil proceeding in the county where that proceeding is pending, but who have no representation in the county where they are detained. The circuit court in DeSoto County should not be expected, and presumably lacks the power, to regulate or issue orders to other circuit courts throughout the State concerning petitions pending in those other circuits. Nevertheless, we know from the appeals we receive that detainees often call upon that court to take such steps and statutory law expressly authorizes the use of habeas corpus petitions to challenge some conditions of confinement. See § 394.9215, Fla. Stat. (2010).

This case is an extreme example, but from our anecdotal experience, it is not unique. The statute contemplates that detainees will receive a speedy trial and then will receive annual reviews. § 394.918, Fla. Stat. (1999-2010). Once the right to the thirty-day trial is waived, however, these proceedings often seem to take many years. The fact that the detainee is being held sometimes hundreds of miles from the trial forum does not facilitate timely resolution of these cases. If the Department is not providing treatment during this delay, a pretrial detainee may not actually hold the keys to the cell in which he is civilly detained.

If we were convinced that both this court and the circuit court had the power to provide a remedy under habeas corpus, we would order the circuit court to issue the writ of habeas corpus returnable before itself to require the Department to show cause why Mr. Morel should not be released. However, without a hearing involving the circuit court in Broward County, we do not envision how this matter could be fairly resolved for all parties.

The supreme court is the only court that clearly has territorial jurisdiction over all aspects of this case. Given the apparent eight-year delay in treatment and trial and in light of the substantial questions concerning the constitutionality of these proceedings and given that these issues appear to arise for other individuals who are held in DeSoto County, we certify these issues to the supreme court for immediate resolution in hopes that it can provide guidance to this court, and to both circuit courts, as to the procedure by which such individuals can challenge delays in treatment and trial.

ALTENBERND, KHOUZAM, and CRENSHAW, JJ., Concur.

      . If the individual was convicted of a sexually violent offense in another state or in federal court, the petition is filed in the circuit where the individual was last convicted of any offense in this state. § 394.913(1).

      . Section 394.916(1), Florida Statutes (1999-2010), states that the court shall conduct a trial on the petition within thirty days after the court has determined that there is probable cause to believe that the individual named ■ in the petition is a sexually violent predator.

      . If Jimmy Ryce detainees were not transferred to DeSoto County until after a final, commitment order were entered, it is likely that these cases would be tried in a more expedited manner.


author: KHOUZAM, Judge.

text:
    Robert Thomas NOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5171.
    District Court of Appeal of Florida, Second District.
    June 22, 2011.
    Rehearing Denied Aug. 26, 2011.

      Robert Thomas Nowell, pro se.
   KHOUZAM, Judge.

Robert Thomas Nowell appeals from an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising two grounds for relief. Nowell’s first claim has no merit. But Nowell’s claim that the sentencing court lacked a factual basis for imposing a minimum mandatory term for his firearm possession offense should have been considered pursuant to Florida Rule of Criminal Procedure 3.850, and we reverse and remand for the postconviction court to do so.

After Nowell, a convicted felon, entered a plea to felon in possession of a firearm, the trial court imposed the enhanced minimum mandatory term prescribed by section 775.087(2)(a)(l), Florida Statutes (2006). In his motion to correct his sentence, Nowell asserted that this minimum mandatory enhancement was not permissible because his possession of the firearm was only constructive, not actual. See Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002) (holding that “in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession”). The postconviction court denied this claim on the ground that it should have been raised on direct appeal. However, a claim of lack of factual basis for the three-year minimum mandatory term is cognizable under rule 3.850. State v. Mancino, 705 So.2d 1379, 1380-81 (Fla.1998) (holding that rule 3.850 is an appropriate means to challenge the minimum mandatory sentence imposed pursuant to a plea when there is no allegation that the sentence exceeds the maximum allowed by law); Morin v. State, 947 So.2d 1250, 1251 (Fla. 2d DCA 2007) (citing Mancino and further noting that the plea agreement’s form language would be insufficient, without more, to refute the claim).

In its present form, however, Nowell’s motion is not facially sufficient for consideration under rule 3.850. Although he filed his motion on the last available day before the two-year time limit barred his claim, the motion was unsworn. Nowell should therefore be permitted to amend his motion by including the required oath. See Spera v. State, 971 So.2d 754, 761 (Fla.2007).

Accordingly, we affirm the denial of claim one but reverse and remand for the postconviction court to dismiss claim two with leave for Nowell to amend his motion by including an oath within thirty days from the date that this opinion becomes final. If Nowell fails to do so, however, the postconviction court can deny the motion on the merits. See Bloye v. State, 28 So.3d 137, 139 (Fla. 2d DCA 2010).

Affirmed in part; reversed in part; and remanded.

MORRIS and CRENSHAW, JJ., Concur.


text:
    William Shaun JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-751.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied Aug. 30, 2011.
    William Shaun Jordan, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See Downs v. State, 616 So.2d 444, 446 (Fla.1993) (affirming the trial court’s stacking of mandatory minimum sentences for the murder of one victim and the aggravated assault with a firearm upon a witness to the murder).


text:
    Leo SCHOFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2918.
    District Court of Appeal of Florida, Second District.
    July 1, 2011.
    Rehearing Denied Aug. 30, 2011.

      Richard G. Bartmon of Law Offices of Richard G. Bartmon, Boca Raton; Scott H. Cupp, West Palm Beach; and Michael J. Minerva, Seth E. Miller, and Melissa Montle of the Innocence Project of Florida, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Leo Schofield appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he argued that he was entitled to a new trial based on newly discovered evidence. We write to address why we must affirm.

In 1989, Schofield was convicted of first-degree murder for the death of his wife, Michelle, in February 1987. At the time of Schofield’s trial, he was aware that there were several unidentified fingerprints found in Michelle’s abandoned car, and he used those unidentified fingerprints to support his defense that someone else, namely the person who left those fingerprints, was the perpetrator of the crime.

In 2004, through an unusual series of events, the previously unidentified fingerprints were identified as belonging to one Jeremy Scott. Based on that identification, Schofield filed a motion for postcon-viction relief seeking a new trial based on the “newly discovered evidence” of the identity of the individual who left the fingerprints. The postconviction court initially summarily denied relief on the ground that this evidence was not “newly discovered.” This court, however, found that the identity of the individual who left the fingerprints was properly characterized as “newly discovered evidence,” and we therefore remanded for the postconviction court to hold an evidentiary hearing on Schofield’s claim. See Schofield v. State, 32 So.3d 90, 93-94 (Fla. 2d DCA 2009).

On remand, the postconviction court held an extensive evidentiary hearing. During this hearing, Schofield offered copious evidence concerning Jeremy Scott’s prior criminal offenses, the factual details of those offenses, Scott’s prior violent interactions with his girlfriends and others, and evidence concerning Scott’s alleged reputation for violence. The State objected to the postconviction court’s consideration of this evidence, noting that it was inadmissible as improper character evidence. In response, Schofield made a number of arguments as to why he believed such evidence should be admissible despite the clear provisions of the evidence code to the contrary.

In a lengthy written order denying Schofield’s motion, the postconviction court stated that “for purposes of the court’s analysis,” it would consider Schofield’s proffered evidence concerning Scott’s criminal history, reputation, and prior bad acts as if it was admissible. The court then found that, even if it considered that evidence, it could not say that the evidence weakened the case against Schofield to the point that it would probably produce an acquittal on retrial. Schofield then appealed that ruling to this court.

In reviewing a postconvietion court’s order on a newly discovered evidence claim after an evidentiary hearing, this court must accept the postconviction court’s findings of fact if they are based upon competent, substantial evidence. Hitchcock v. State, 991 So.2d 337, 349 (Fla.2008); Green v. State, 975 So.2d 1090, 1100 (Fla.2008); Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). This court must also defer to the postconviction court’s determinations concerning the credibility of witnesses and the weight to be given to particular evidence. Hitchcock, 991 So.2d at 349; McLin v. State, 827 So.2d 948, 954 n. 4 (Fla.2002); Blanco, 702 So.2d at 1252. However, as with rulings on other postcon-viction claims, this court conducts a de novo review of the postconviction court’s application of the facts to the law. Hitchcock, 991 So.2d at 349; Green, 975 So.2d at 1100.

As to claims concerning newly discovered evidence, the supreme court has set forth two requirements that a defendant must satisfy to be entitled to a new trial.

To obtain a new trial based on newly discovered evidence, a defendant must demonstrate that: (1) the evidence was not known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence; and (2) the newly discovered evidence is of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II).

Hitchcock, 991 So.2d at 349. In this case, this court determined in Schofield’s earlier appeal that the identification of the previously unidentified fingerprints as those of Jeremy Scott constituted newly discovered evidence. See Schofield, 32 So.3d at 93. Thus, the evidentiary hearing on remand addressed solely the second prong of the Jones II test, i.e., whether the admissible newly discovered evidence was of such nature that it would probably produce an acquittal on retrial.

Newly discovered evidence satisfies the second prong of the Jones II test if it “ ‘weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.’” Jones v. State, 709 So.2d 512, 526 (Fla.1998) (Jones II) (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). In determining whether the evidence compels a new trial, the trial court must “consider all newly discovered evidence which would he admissible ” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones v. State, 591 So.2d 911, 916 (Fla.1991) (emphasis added). Thus, even assuming that evidence is newly discovered, a new trial is not warranted if the newly discovered evidence would not be admissible on retrial. Sims v. State, 754 So.2d 657, 660 (Fla.2000); Robinson v. State, 707 So.2d 688, 691-92 (Fla.1998).

At Schofield’s evidentiary hearing, the only admissible newly discovered evidence offered was the evidence of the fingerprint identification itself and Jeremy Scott’s testimony explaining how his fingerprints could have been found in Michelle’s car. To that end, Scott testified that he used to drive up and down the stretch of 1-4 through Lakeland looking for abandoned cars. When he found one, he would break into it and steal stereo equipment. Scott offered this explanation to detectives before he was told that speakers and a power amp were missing from Michelle’s car when it was found abandoned on 1-4. He also offered this explanation before he knew that his fingerprints were found on the inside of the windshield of Michelle’s car. The postconviction court accepted Scott’s explanation as credible, and it based its denial of Schofield’s motion in part on that credibility assessment.

In this appeal Schofield invites this court to reassess the credibility of the witnesses presented at both the original trial and the evidentiary hearing, and he specifically argues that this court should find Scott’s explanation for his fingerprints in Michelle’s car not to be credible. He points to other evidence offered at the hearing that tends to discredit Scott’s explanation, including Scott’s fingerprint on a piece of paper in the hatchback area of Michelle’s car. However, the postconviction court was present at the hearing to observe Scott’s demeanor. In addition, the postconviction court had the benefit of hearing the taped phone calls between Scott and his grandmother while the record in this appeal includes only a transcript of these tapes — not the recordings themselves. Therefore, while there is no question that Scott’s testimony was impeached to some extent, we must defer to the credibility determination made by the postconviction court, which heard and saw the testimony at issue. See Blanco, 702 So.2d at 1252; see also Rodriguez v. State, 919 So.2d 1252, 1268-69 (Fla.2005); McLin, 827 So.2d at 954 n. 4. Regardless of our thoughts on the matter, as an appellate court, we may not substitute our view of the facts or their credibility for that of the postconviction court, which was sitting as the trier of fact.

At the evidentiary hearing, Scho-field also relied heavily on extensive evidence of Scott’s prior criminal activities, including the facts underlying his prior convictions and the testimony of his former girlfriend about prior bad acts, to support Schofield’s position that the newly discovered evidence “is of such nature that it would probably produce an acquittal on retrial.” However, none of that evidence would be admissible on retrial.

The supreme court addressed a similar issue in Hitchcock v. State, 418 So.2d 741 (Fla.1982). There, James Hitchcock was accused of the first-degree murder of his brother Richard’s stepdaughter. Id. at 743. James sought to call numerous witnesses to testify that Richard had exhibited violent tendencies and that he had a reputation for violence. Id. at 744. James asserted that such evidence was relevant to impeach Richard’s testimony and to prove James’s defense that Richard, rather than James, committed the murder. Id. In affirming the trial court’s decision to exclude this evidence, the court explained:

A defendant has the right to present witnesses in his own defense but must comply with established rules of procedure and evidence designed to assure both fairness and reliability. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. Fulton v. State, 335 So.2d 280 (Fla.1976). For impeachment purposes the only proper inquiry into a witness’ character goes to reputation for truth and veracity. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940). The excluded testimony could have been relevant only to show Richard Hitchcock’s alleged bad acts and violent propensities and, thus, was properly excluded for impeachment purposes. Nor is there merit to [James]’s claim that the testimony concerning Richard’s character would tend to prove that Richard committed the murder.

Id. at 744.

In this case, as in Hitchcock, Schofield sought to introduce evidence of Scott’s prior physical fights with his former girlfriend and others and his reputation for violence, purportedly to show that Scott could have murdered Michelle. However, this evidence was relevant only to show Scott’s alleged bad acts and violent propensities, neither of which are admissible for impeachment purposes. See § 90.404(2)(a), Fla. Stat. (2010) (prohibiting the admission of evidence of prior bad acts when the only relevance is to prove propensity to commit crimes). Further, none of the evidence of Scott’s past violence against his former girlfriend is relevant to prove that Scott murdered Michelle. Therefore, this evidence would not be admissible and thus could not, as a matter of law, have been of such a nature that it would probably produce an acquittal on retrial.

Similarly, Schofield’s “newly discovered evidence” concerning the facts underlying Scott’s prior convictions, as well as the facts underlying a crime for which Scott was tried and acquitted, is not admissible. Under section 90.610, Florida Statutes (2010), the fact of Scott’s prior convictions for felonies and crimes of dishonesty and the number of his convictions for those offenses would have been admissible to impeach his credibility. However, the descriptions of the prior crimes and the details of the facts underlying them are not generally admissible. See Howard v. Risch, 959 So.2d 308, 313 (Fla. 2d DCA 2007) (“Although the fact a witness or party was convicted of a crime may be relevant and admissible for impeachment purposes, the nature of the crime or any details about the crime are generally inadmissible.”); Livingston v. State, 682 So.2d 591, 592 (Fla. 2d DCA 1996); Parks v. Zitnik, 453 So.2d 434, 437 (Fla. 2d DCA 1984). And as to the limited exception to the general rule for reverse Williams rule evidence, none of the facts proffered concerning Scott’s prior crimes are sufficiently similar to Michelle’s murder to be admissible under that theory. See Drake v. State, 400 So.2d 1217, 1219 (Fla.1981) (noting that Williams rule evidence is admissible only when there are “identifiable points of similarity which pervade the compared factual situations” and that the “points of similarity must have some special character or be so unusual as to point to the defendant”); Rivera v. State, 561 So.2d 536, 540 (Fla.1990) (excluding reverse Williams rule evidence when the only similarities were not so unusual as to point solely to another offender). Moreover, evidence of an arrest that did not result in a conviction is not admissible under any circumstances. Fulton v. State, 335 So.2d 280, 282-83 (Fla.1976); Jordan v. State, 107 Fla. 333, 144 So. 669, 670 (1932) (“It is only permitted to interrogate witnesses as to previous convictions, not mere former arrests or accusations, for crime.”). Therefore, all of the evidence offered by Schofield concerning Scott’s alleged violent acts toward his former girlfriend and others, his alleged reputation for violence, and the details of the crimes underlying his prior felony convictions is simply inadmissible and cannot weaken the case against Schofield so as to give rise to a reasonable doubt as to his guilt.

In this appeal, Schofield contends that the postconviction court definitively ruled that all of his proffered evidence was admissible and that this court must defer to that ruling. Initially, we disagree with Schofield’s assertion that the postconviction court made any such definitive ruling. However, even if it did, we are not bound by that ruling. While a postconviction court’s rulings on the admissibility of evidence will not generally be disturbed absent an abuse of discretion, see, e.g., Fitzpatrick v. State, 900 So.2d 495, 514-15 (Fla.2005), its discretion on evidentiary matters is limited by case law and the rules of evidence. McDuffie v. State, 970 So.2d 312, 326 (Fla.2007); Masaka v. State, 4 So.3d 1274, 1279 (Fla. 2d DCA 2009); McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). A postconviction court’s erroneous decision to admit clearly inadmissible evidence is not entitled to deference. McCray, 919 So.2d at 649 (noting that a trial court’s erroneous interpretation of the evidence code and case law applying it “is subject to de novo review”). Further, as noted above, this court reviews the postconviction court’s application of the facts to the law de novo. See, e.g., Hitchcock, 991 So.2d at 349. There is simply no authority for the topsy-turvy notion that a postconviction court can bind an appellate court on issues of law.

Finally, Schofield asserts that any errors in the postconviction court’s eviden-tiary rulings have been waived because the State failed to file a cross-appeal. However, the State, as the beneficiary of a favorable ruling, need not file a cross-appeal. Moreover, no statute or rule permits the State to appeal a postconviction court’s general evidentiary rulings, whether conditional or not. See Fla. R. App. P. 9.140(c)(1) (listing the grounds upon which the State may appeal in a criminal case). Thus, the lack of a cross-appeal by the State does not prevent this court from considering whether Schofield’s proffered evidence would be admissible on retrial.

In sum, after a thorough review of the record, the transcript of the evidentiary hearing, and the transcript of the original trial, we find that the postconviction court’s factual findings and credibility determinations are supported by competent, substantial evidence and that the postcon-viction court properly applied the law to the facts. Accordingly, we have no legal basis upon which to reverse the postcon-viction court’s ruling.

Affirmed.

CASANUEVA and VILLANTI, JJ„ and CASE, JAMES R., Associate Senior Judge, Concur.

      . Schofield also raised a claim asserting that he was entitled to a new trial based on the State’s allegedly bad faith destruction of certain evidence nine years after the crime and seven years after Schofield’s trial. Having thoroughly reviewed the arguments raised in Schofield's brief and the law on this subject, we find the issue to be without merit, and we affirm on that claim without further comment.

      . The record shows that Schofield’s girlfriend obtained copies of the fingerprints through a public records request. She then provided them to a friend of hers, who was a captain with the Hendry County Sheriff’s Office. Despite this case having absolutely no connection to Hendry County, this captain submitted the fingerprints to her latent prints section, falsely asserting that they were needed as part of an investigation into a pending Hendry County case. After the fingerprints were identified, the Hendry County sheriff’s captain contacted the Polk County Sheriff’s Office and provided the identification information, and the Polk County Sheriff reopened his investigation.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . While we recognize that this evidence is intriguingly serendipitous to Schofield, its favorability does not make it admissible outside the rules of evidence any more than if its import made his conviction even more compelling.


text:
    Peter RUBIO and John Rubio, Appellants, v. The ESTATE OF Delia RUBIO, Appellee.
    No. 3D10-708.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.
    Robert M. Abramson, for appellants,

      No appearance, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The order of distribution of the estate in question contained a clear and obvious mistake in providing that the appellants “assumed” the mortgages on the property-distributed to them, rather than taking it “subject to” the mortgages. The trial court therefore erred in denying a motion to correct the error and the cause is remanded to accomplish that purpose.

Reversed in part with directions.