author: McMILLAN, Judge. WELCH, Judge,

text:
    Latarence J. BENSON v. STATE of Alabama.
    CR-06-0170.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2008.
    Rehearing Denied March 28, 2008.
    Denial of Rehearing Set Aside April 24, 2008.
    Rehearing Denied June 20, 2008.
    Certiorari Denied Sept. 12, 2008 Alabama Supreme Court 1070912.
    Donald L. Colee, Jr., Birmingham, for appellant.

      Troy King, atty. gen., and Stephen N.-Dodd, asst. atty. gen., for appellee.
   McMILLAN, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, J., concurs.

BASCHAB, P.J., and SHAW, J., concur in the result.

WELCH, J., concurs in the result, with opinion.

WELCH, Judge,

concurring in the result.

Latarence J. Benson was indicted on charges of first-degree burglary (CC-05-1918), and first-degree rape (CC-05-1914), against S.S. The trial court sentenced him, as a habitual offender with one prior felony conviction, to life imprisonment for each conviction.

Benson’s asserts on appeal that the trial court erred in allowing nurse Tonya Man-frey to testify regarding statements S.S. made to her during Manfrey’s triage assessment of S.S. Benson argued at trial and on appeal that because S.S. died before trial from unrelated causes and was thus unavailable for cross-examination, the admission into evidence of what Benson describes as “testimonial” out-of-court statements that she made to nurse Man-, frey violated the Confrontation Clause of the United States Constitution and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). I note that Manfrey also completed a “rape kit” on S.S. However, the statements attributed to S.S. were apparently made during the triage.

In its unpublished memorandum, the Court found that a discussion of the Confrontation Clause was unnecessary. The unpublished memorandum disposed of the issue by ruling that “[t]he admission of Manfrey’s testimony was not reversible error because evidence of sexual assault had already been admitted, without objection, during the testimony of other witnesses.” Because I respectfully disagree with the rationale in the memorandum affirming the trial court’s judgment as to this issue, I concur only in the result it reaches in its memorandum.

At trial, over Benson’s continuing objection that S.S.’s statements to medical staff was inadmissible because its receipt violated the Confrontation Clause as set forth in Crawford, and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), Manfrey, a registered nurse who works in the emergency room of University of Alabama at Birmingham Hospital, testified:

“Q. [The prosecutor]: Do you recall the day that you saw [S.S.] and examined her?
“A. [Manfrey]: Yes, I do.
“Q. Tell us what you did when she came in? First of all, where did you examine her?
“A. She arrived by Birmingham Fire and Rescue, if I remember correctly, and we took her directly to an examination room and I completed the triage process, which is where I interview her to ask her why she’s here and get a little history about what happened and what brought her to the emergency department.
“Q. What’s the reason for doing that?
“A. So that we know why they’re there and what we can do to help them. Why did they come and ask for our services.
“Q. What did she tell you as to why she was there?
“A. That she had been sexually assaulted.
“Q. What did she say was the nature of the assault?
“A. If my memory serves me, she said that someone had entered her apartment around twelve-thirtyish and had repeatedly sexually assaulted her until about, I want to say, three o’clock....
“Q. Now, did you perform what is termed a sexual-assault examination?
“A. Yes, sir.”

(R. 58-60.)

“Q. I’m going to ask you a couple of other questions about the examination of [S.S.] Did [S.S.], in your discussion with her, give you any indication as to whether there was any penetration during the activity that lead to her examination at UAB?
“A. She stated in my interview with her that she was assaulted orally, anally, and vaginally.
“Q. You’re using the word ‘assaulted,’ do you mean she told you there was contact?
“A. Yes. There was penetration.”

(R. 107-08.)

The unpublished memorandum found Manfreds testimony to be admissible without discussing the Confrontation Clause because, according to the memorandum, it was evidence cumulative to other evidence already received from Mindy Kitchens, the director of the ProAct Team program, with the Jefferson, Blount, St. Clair Mental Health Authorities, and Officer Steven Parnell, an officer with the Birmingham Police Department, without objection, declaring that a rape had been committed. Kitchens testified, without objection, that on the day of the incident she received a telephone call from a colleague assigned to S.S.’s ProAct Team stating that S.S. “had been attacked and raped.” (R. 40.) Officer Parnell testified, without objection, that he “received a rape call” to dispatch to S.S.’s address. (R. 53.) These two statements, according to the unpublished memorandum, render Manfrey’s testimony admissible because “[i]t is not error to permit the same facts to be shown again over objection where they have already been proved without objection. Kolmetz v. State, 600 So.2d 389 (Ala.Crim.App.1991). I cannot agree with this rationale. A conviction for first-degree rape, as charged in this case, required proof that the accused: “engage[d] in sexual intercourse with a member of the opposite sex by forcible compulsion.” § 13A-6-61(a)(l), Ala.Code 1975. Sexual intercourse is defined as follows: “Such term has its ordinary meaning and occurs upon any penetration, however slight; emission is not required.” § 13A-6-60, Ala.Code 1975. I do not believe that Kitchens’s and Parnell’s characterization of the incident as a rape in any way satisfied the State’s burden of establishing a prima facie case of rape. Likewise, I do not view Benson’s failure to object to this characterization as a concession that a rape had occurred. The use of the word “rape” by these witnesses was nothing more than their conveying that there had been an accusation of rape. Their description of the incident as a “rape” is not evidence of a rape any more than is the indictment that charges a rape. Therefore, I cannot agree with the analysis in the unpublished memorandum on this issue.

I do agree with the holding in the memorandum that the statements S.S. made to Manfrey regarding the rape were properly admitted into evidence. However, I believe that this case does merit a discussion of the Confrontation Clause and, thus, Crawford and Davis.

Manfrey’s testimony was important because “ ‘the victim’s testimony alone is sufficient to establish a prima facie case of either rape or sexual abuse.’ ” Shouldis v. State, 953 So.2d 1275, 1285 (Ala.Crim.App. 2006) (quoting Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App.1996)). Thus, Manfrey’s testimony, if admitted into evidence, was evidence of sexual intercourse by forcible compulsion and assured that the case would survive a motion for a judgment of acquittal and be submitted to the jury. Likewise, if the jury believed Manfrey’s testimony, it was sufficient to uphold a conviction.

In Crawford, and Davis, the United States Supreme Court explicitly held that, although certain evidence may be admissible because it falls within an exception to the general exclusion of hearsay testimony, that evidence nonetheless must be excluded if it violates the Confrontation Clause of the United States Constitution.

Benson contends that the statements S.S. made to Manfrey were testimonial statements. Therefore, he asserts, because S.S. died from unrelated causes before trial and he did not have the opportunity to cross-examine S.S., allowing Manfrey to testify as to what S.S. told her regarding the rape violated Benson’s constitutional right to confront the witness against him.

As the United States Supreme Court explained in Crawford, a basic tenet in the law of evidence has been that “[testimonial statements of witnesses absent from trial have been admitted only where the defendant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” that witness. Crawford, 541 U.S. at 59. The Crawford Court went on to recognize the inherent conflict between allowing a testimonial statement to be admitted into evidence as an exception to the hearsay rule when the admission of the statement runs afoul of the Confrontation Clause.

“Where testimonial statements are involved, we do not think the Framers [of the United States Constitution] meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ... Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the [Confrontation] Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.”

Crawford, 541 U.S. at 61, 124 S.Ct. 1354.

In reconciling the tension between the admissibility of evidence that falls within an exception to the general rule against hearsay and the preclusion of that same evidence under the Confrontation Clause, the Crawford Court held:

“When nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford flexibility in their development of hearsay law — as does [Ohio v.] Roberts, [448 U.S. 56 (1980) ], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”

Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

The Supreme Court set forth the test for Confrontation Clause issues as follows: If the declarant is unavailable to testify at trial and the declarant’s statement is “testimonial,” then the testimony is not admissible unless the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 69, 124 S.Ct. 1354.

The Court left “for another day” an attempt to determine a definition as to what constituted “testimonial,” deciding that it encompassed “at a minimum ... prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” 541 U.S. at 69,124 S.Ct. 1354.

In Davis, supra, the Supreme Court again declined to establish an exhaustive classification of what constitutes “testimonial” or “nontestimonial” statements. Davis, 547 U.S. at 822, 126 S.Ct. at 2273. It did, however, provide a general guide to determining whether a statement is “testimonial” for purposes of a Confrontation Clause analysis.

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.

The Court went on to say that although its holding in Davis involved the product of an “interrogation” by a police emergency 911 dispatcher, Davis should not be read to imply that “statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” 547 U.S. at 822 n. 1, 126 S.Ct. at 2274 n. 1.

Whether a statement to someone who is not a law-enforcement official is testimonial hinges upon whether the individual to whom the declarant spoke is acting as an agent of law enforcement. See Centobie v. State, 861 So.2d 1111, 1121 (Ala.Crim.App. 2001). In determining whether Manfrey was acting as an agent of the state, “we must look to the circumstances surrounding the giving” of the statement. See also Woodson v. State, 392 So.2d 551, 552-53 (Ala.Crim.App.1980).

Here, Manfrey testified that when S.S. first came to the emergency room at the hospital, Manfrey took her directly to an examination room and interviewed her about why she had come to the hospital and “[got] a little history about what had happened.” (R. 58.) Manfrey said the purpose of the interview was so that the medical staff would know what to do to help her. (R. 58.) From the record, it appears that no police were present when S.S.was treated. The interview lacked any objective government involvement.

A number of jurisdictions that have considered the issue have determined that statements made during such a medical interview are nontestimonial in nature because the primary purpose of the interview is for the care and treatment of the victim. See, e.g., State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004) (under a “reasonable witness” standard, the statements a sexual-assault victim made to the emergency-room physician were nontestimonial because the victim made the statements— and the doctor elicited the statements— primarily for the purposes of medical diagnosis and treatment); People v. Vigil, 127 P.3d 916 (Colo.2006) (a child’s statements to a doctor following a sexual assault were deemed nontestimonial because “from the perspective of an objective witness in the child’s position, it would be reasonable to assume that this examination was only for the purpose of medical diagnosis”); United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005) (statements made to a physician seeking to give medical aid in the form of a medical diagnosis or treatment are presumptively nontestimonial); and State v. Stahl, 111 Ohio St.3d 186, 855 N.E.2d 834 (2006) (statements by a rape victim to emergency room nurse specializing in treating sexual-assault victims were deemed nontestimonial because to a reasonable person, the statements would appear to serve a primarily health-care-related function). Cf. State v. Hooper, 145 Idaho 139, 176 P.3d 911 (2007) (sexual assault nurse examiner and “self-described” forensic interviewer was acting as an agent of police when she interviewed molestation victim referred to her by police and police supervised the victim’s visit).

In applying the above-cited authorities, I would find that an objective person in S.S.’s position would understand that Man-trey’s interview was conducted primarily for the purpose of providing a medical diagnosis and appropriate treatment and not for the purpose of gathering evidence for trial. Therefore, I would hold that S.S.’s statements to Manfrey were nontes-timonial and that, therefore, the statements were properly admitted into evidence.

      . Benson was also indicted and convicted for first-degree rape and first-degree assault (CC-05-1911), and first-degree burglary (CC-05-1912) as to another victim, K.H. Benson was also charged, but found not guilty of first-degree sodomy (CC-05-1914) involving S.S.

      . "Triage” is the "sorting of patients (as in an emergency room) according to the urgency of their need for care.” Meiriam-Webster’s Collegiate Dictionary 1334 (11th ed.2003).

      . The ProAct Team consists of social workers, community managers, and nurses who form a team to administer home health care to individuals with mental illness.

      . Later testimony disclosed that Benson's DNA was present on vaginal swabs taken from the victim. However, this alone does not prove sexual intercourse by forcible compulsion.


source: Caselaw Access Project

author: CANADY, J., LEWIS, J.,

license: Public Domain

text:
    Allen Ward COX, Appellant v. STATE of Florida, Appellee.
    No. SC08-887.
    Supreme Court of Florida.
    March 12, 2009.
   Allen Ward Cox, a prisoner under sentence of death, appeals the circuit court’s denial of his successive motion for postcon-viction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. After this Court affirmed Cox’s capital conviction and sentence on direct appeal, see Cox v. State, 819 So.2d 705 (Fla.2002), cert. denied, 537 U.S. 1120, 123 S.Ct. 889, 154 L.Ed.2d 799 (2003), he unsuccessfully-sought postconviction relief in state court. See Cox v. State, 966 So.2d 337, 366 (Fla. 2007) (affirming the circuit court’s denial of Cox’s initial postconviction motion and denying his accompanying habeas petition). Further, Cox alleges, and the State does not dispute, that he has an initial federal habeas petition pending in the United States District Court for the Middle District of Florida.

Cox’s current appeal amounts to a broad-based attack on the constitutionality of Florida’s current lethal-injection protocol. Specifically, Cox: (1) assails the constitutionality of lethal injection as currently administered in Florida; (2) asserts that sections 27.7001 and 27.702, Florida Statutes (2008), as interpreted by this Court, are unconstitutional facially and as applied because these statutes prohibit CCRC from filing mode-of-execution challenges under 42 U.S.C. § 1983 (2000); and (3) claims that section 945.10, Florida Statutes (2008), as interpreted by this Court, is unconstitutional because it prohibits him from discovering the identities of his executioners, which he contends precludes him from determining the adequacy of their qualifications and training. We have consistently rejected each of these claims. See, e.g., Ventura v. State, 2 So.3d 194 (Fla.2009); Tompkins v. State, 994 So.2d 1072 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 1305, — L.Ed.2d - (2009); Henyard v. State, 992 So.2d 120 (Fla.2008), cert. denied, — U.S.-, 129 S.Ct. 28, 171 L.Ed.2d 930 (2008); Lightbourne v. McCollum, 969 So.2d 326 (Fla. 2007), cert. denied, — U.S. ——, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008); Provenzano v. State, 761 So.2d 1097, 1099 (Fla.2000); Bryan v. State, 753 So.2d 1244, 1250 (Fla.2000); State ex rel. Butterworth v. Kenny, 714 So.2d 404, 410 (Fla.1998). Therefore, we affirm the order of the circuit court summarily denying Cox’s successive postconviction motion.

It is so ordered.

QUINCE, C.J., and CANADY, POLSTON, and LABARGA, JJ., concur.

CANADY, J., concurs with an opinion.

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

CANADY, J.,

concurring.

Since 1998 — when the Legislature adopted the statutory provisions relating to registry counsel — section 27.711(l)(e), Florida Statutes, has contained a definition .of “[p]ostconviction capital collateral proceedings” which makes specific reference to “any authorized federal habeas corpus litigation with respect to [a] sentence [of death].” (Emphasis added.) The definition makes reference to no other federal collateral proceedings. This statutory definition became effective after State ex rel. Butterworth v. Kenny, 714 So.2d 404 (Fla. 1998), was decided and thus was not considered by the Court in that case. Under the definition of postconviction capital collateral proceedings adopted by the Legislature, a section 1983 lawsuit is simply not included among those proceedings for which collateral representation may be made available pursuant to chapter 27, Florida Statutes.

Although section 27.711(l)(c) is contained in the portion of part IV of chapter 27 that deals specifically with registry counsel, it nonetheless is relevant to the scope of the representation to be afforded not only by registry counsel but also by capital collateral regional counsel and other counsel appointed pursuant to part IV of chapter 27. This is evident from the fact that the express legislative objective for providing registry counsel is the same as it is for providing other collateral counsel. Section 27.7001 specifically includes the statutory provisions relating to registry counsel within its statement of legislative intent. The broad statement of legislative intent encompassing registry and other collateral counsel is then directly linked with the specific statement of intent identifying the limitations on collateral representation contained in the last sentence of the section.

The relevance beyond the context of registry counsel of the definition in section 27.71 l(l)(c) is also evident from the specific provision the Legislature made in section 27.701(2) for “the responsibilities of the regional office of capital collateral counsel for the northern region” to “be met through a pilot program using only attorneys from the registry of attorneys maintained pursuant to s. 27.710.” If the scope of representation available from registry counsel were narrower than the scope of representation available from capital collateral regional counsel, it would be impossible for registry counsel to meet “the responsibilities of the regional office of capital collateral counsel” as contemplated by section 27.701(2).

In short, the statutory context points compellingly to the conclusion that the definition of “[pjostconviction capital collateral proceedings” contained in section 27.711(l)(c) reflects a legislative understanding of the meaning of the limitations earlier set forth in section 27.7001 — precluding “civil litigation” — rather than a legislative decision to impose a new special limitation that is only applicable to registry counsel. The definition in section 27.711(l)(c) thus is a positive statement of what the Legislature had previously stated negatively in the last sentence of section 27.7001.

The reasoning of Butterworth concerning the constitutionality of limitations on state-compensated capital postconviction representation fully justifies the rejection of Cox’s claim that section 27.7001 is unconstitutional.

LEWIS, J.,

dissenting.

I agree with my colleagues that Cox’s constitutional challenges to Florida’s current lethal-injection protocol and section 945.10, Florida Statutes (2008), are merit-less. See, e.g., Ventura v. State, 2 So.3d 194, 200 (Fla.2009) (“Florida’s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court (and would also easily satisfy the intent-based standard advocated by Justices Thomas and Scalia).... [N]othing contained within the various opinions of Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), affects the validity of our decisions upholding Florida’s current lethal-injection protocol.”); Provenzano v. State, 761 So.2d 1097, 1099 & nn. 3-4 (Fla.2000) (explaining that section 945.10, Florida Statutes, does not prevent members of the execution team from providing relevant in-camera testimony so long as “information ... identifying]” these individuals is not publicly released). However, I must part ways with my brethren with regard to their interpretation of sections 27.7001 and 27.702, Florida Statutes (2008).

In relevant part, section 27.702(1), Florida Statutes (2008), provides that CCRC and registry counsel “shall file only those postconviction or collateral actions authorized by statute.” In turn, section 27.7001, Florida Statutes (2008), provides that such “collateral representation shall not include representation during retrials, re-sentencings, proceedings commenced under chapter 940 [i.e., executive-clemency proceedings], or civil litigation.” (Emphasis supplied.) Through this statute, the Legislature undoubtedly intended to prevent CCRC and registry counsel from pursuing claims for civil damages against state employees, officers, and agents. Certainly, as a general matter, actions filed pursuant to 42 U.S.C. § 1988 may be used for just that purpose, but that is not the sole, or even predominant, application of section 1983 actions in this context. Instead, capital defendants such as Cox wish to use section 1983 actions as a means of challenging Florida’s current lethal-injection protocol in federal court (and have in no way sought civil damages). See generally Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). This is precisely the same relief that these inmates now seek through successive federal habeas petitions (for which CCRC and registry counsel are provided). However, these successive ha-beas petitions are a fruitless endeavor for both the inmates and the State because the federal courts are statutorily hound to reject such claims based upon the plain text of 28 U.S.C. § 2244(b)(2)(A), (b)(2)(B)(i)-(ii) (2000). See, e.g., In re Schwab, 506 F.3d 1369, 1370 (11th Cir. 2007) (“[An Eighth Amendment] claim [challenging Florida’s current lethal-injection protocol] cannot serve as a proper basis for a second or successive habeas petition. It cannot because it neither relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, 28 U.S.C. § 2244(b)(2)(A), nor involves facts relating to guilt or innocence, see 28 U.S.C. § 2244(b)(2)(B)(ii).”). This limitation does not apply to section 1983 actions.

Under these circumstances, the rule and rationale expressed in State ex rel. Butterworth v. Kenny, 714 So.2d 404 (Fla.1998), are founded upon an untenable legal fiction. In that decision, we held that sections 27.7001 and 27.702, Florida Statutes (1997), prohibit CCRC from representing capital inmates during section 1983 actions, but not habeas proceedings. We recognized that habeas petitions have historically been viewed as civil in nature, but then differentiated claims brought through this writ-based mechanism as truly “quasi-criminal,” in supposed contrast to all section 1983 claims. 714 So.2d at 409-10. This distinction becomes an analytical non sequitur when the same claims are asserted through habeas petitions and section 1983 actions. If such is the case, as it is in the lethal-injection context, then these section 1983 actions are just as “quasi-criminal” as the alternative habeas petitions. Viewed functionally, these mode-of-execution claims — regardless of procedural mechanism — seek the same relief: a finding that Florida’s current lethal-injection protocol poses a substantial risk of severe pain that may be remedied through a proffered alternative procedure that is feasible and readily implemented. Therefore, in this context, the rule and rationale that we expressed in Kenny lack explanatory and precedential power. I would thus limit Kenny’s impact to claims seeking civil relief that is wholly unrelated to an inmate’s conviction, sentence, or means of carrying out that sentence. Mode-of-execution challenges — whether asserted through a habe-as petition or a section 1983 action — have become typical postconviction relief proceedings for which CCRC counsel should be provided. The plain text of the relevant statutes does not preclude this result.

I respectfully dissent.

PARIENTE, J., concurs.

      . This statute creates a cause of action at law, in equity, “or other proper proceeding for redress” against any person who, acting under color of state or territorial law, abridges the rights, privileges, or immunities provided by the United States Constitution or federal law. 42 U.S.C. § 1983.

      . With regard to my colleague’s reliance upon the definition of "Postconviction capital collateral proceedings” provided in section 27.71 l(l)(c), Florida Statutes (2008), I make two observations: (1) the Legislature explicitly restricted the application of that statute to registry counsel (i.e., by its own terms, the statute does not apply to CCRC), see § 27.711(1) ("As used in s. 27.710 and this section, the term ... means ...." (each enumerated section deals exclusively with registry counsel) (emphasis supplied)); and (2) only a portion of section 27.71 l(l)(c) may be characterized as exhaustive, and a fair reading of this clause does not prohibit section 1983 actions filed in state or federal court. Cf. Maine v. Thiboutot, 448 U.S. 1, 3 n. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (holding that federal courts do not have exclusive jurisdiction over section 1983 actions, which may also be pursued in state court) (citing Martinez v. California, 444 U.S. 277, 283-84, n. 7, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980)).


author: PER CURIAM.

text:
    In re APPROVAL OF APPLICATION FOR DETERMINATION OF INDIGENT STATUS FORM FOR USE BY CLERKS AND AMENDMENT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.984.
    No. SC08-2176.
    Supreme Court of Florida.
    March 19, 2009.
    Judge Thomas H. Bateman, III, Chair, Criminal Procedure Rules Committee, Tallahassee, FL, and John D. Dew, Executive Director, Florida Clerks of Court Operations Corporation, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Clerks of Court Operations Corporation has submitted for the Court’s approval a revised Application for Criminal Indigent Status form. We have jurisdiction. Art. V, §§ 2(a), 15, Fla. Const.; R. Regulating Fla. Bar 10-2.1(a).

Sections 27.52 and 57.082, Florida Statutes (2008), require a person seeking to be declared indigent in a criminal or civil proceeding to apply to the clerk of court for determination of indigent status using an application form “developed by the Florida Clerks of Court Operations Corporation with final approval by the Supreme Court.” § 27.52(1), Fla. Stat. (2008); § 57.082(1), Fla. Stat. (2008). In accordance with these statutes, the Court previously approved an Application for Determination of Civil Indigent Status form and an Application for Criminal Indigent Status form for use by the clerks of court. See In re Approval of Application for Determination of Indigent Status Forms for Use by Clerks, 910 So.2d 194 (Fla.2005); see also In re Approval of Application for Determination of Indigent Status Forms for Use by Clerks and Amendment to Florida Rule of Criminal Procedure 3.981., 969 So.2d 285 (Fla.2007) (approving revisions to Application for Determination of Civil Indigent Status). The Court also deleted the language of then existing Florida Rule of Criminal Procedure 3.984, Affidavit of Indigent Status, and replaced it with the language of the Application for Criminal Indigent Status. See In re Approval of Application for Determination of Indigent Status Forms, 910 So.2d at 195.

Due to a recent legislative change, the Clerks Corporation has revised the “Notice to Applicant” portion of the Application for Criminal Indigent Status form to reflect an application fee of $50.00, rather than a $40.00. See ch. 2008-111, § 4, Laws of Fla. (amending § 27.52(l)(b), Fla. Stat. (2007)).

We approve the revised form as set forth in the appendix to this opinion. To incorporate the revision to the form, we also amend Florida Rule of Criminal Procedure 3.984, Application for Criminal Indigent Status, by replacing the body of rule 3.984 with the revised form. The amendment shall be effective immediately.

It is so ordered.

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

_I AM SEEKING THE APPOINTMENT OF THE PUBLIC DEFENDER

OR

_I HAVE A PRIVATE ATTORNEY OR AM SELF-REPRESENTED AND SEEK DETERMINATION OF INDIGENCE STATUS FOR COSTS

Notice to Applicant: The provision of a public defender/court appointed lawyer and costs/due process services are not free. A judgment and lien may be imposed against all real or personal property you own to pay for legal and other services provided on your behalf or on behalf of the person for whom you are making this application. There is a $50.00 fee for each application filed.

If the application fee is not paid to the Clerk of the Court within 7 days, it will be added to any costs that may be assessed against you at the conclusion of this ease. If you are a parent/guardian making this affidavit on behalf of a minor or tax-dependent adult, the information contained in this application must include your income and assets.

1. I have_dependents. (Do not include children not living at home and do not include a working spouse or yourself.)

      . As we did with the original form developed by the Clerks Corporation, we approve the revised form pursuant to rule 10-2.1(a) of the Rules Regulating the Florida Bar, which allows nonlawyers to assist in the completion of legal forms approved by this Court. However, only clerks of court and third parties with whom the clerk has- contracted to perform functions assigned by the clerk are authorized to assist individuals in completion of the approved form. See § 27.52(l)(e)(l), Fla. Stat. (2008).

      . We amend rule 3.984 pursuant to Florida Rule of Judicial Administration 2.140(d).


text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC08-1612.
    Supreme Court of Florida.
    March 19, 2009.
    David Neal Silverstein, Chair, Florida Juvenile Court Rules Committee, Tampa, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Anthony C. Musto, Special Counsel, Florida Department of Children and Families, Hallandale Beach, Florida, and Jeffrey Dana Gillen, Statewide Appeals Director, Florida Department of Children and Families, West Palm Beach, FL, on behalf of Florida Department of Children and Families, Responding with comments.
   PER CURIAM.

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

In September 2008, the Court adopted an amendment to Florida Rule of Juvenile Procedure 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers), as well as amendments to several juvenile forms. The amendments were proposed by the Juvenile Court Rules Committee (Committee) in a “fast track” report in response to then recent legislation, chapter 2008-245, Laws of Florida and chapter 2008-122, Laws of Florida. Because the amendments were not published for comment prior to adoption, the Court allowed sixty days in which interested persons could file comments. One comment was filed by the Florida Department of Children and Family Services’ (DCF) with regard to rule 8.225, which was amended to require that notice of proceedings or hearings in dependency cases be given to preadoptive parents, foster parents, and relative caregivers, and specifically, that seventy-two hours notice be given to foster or preadoptive parents.

In its comment, DCF first points out that the addition of “relative caregivers” to the list of those entitled to notice of hearings and proceedings in dependency cases appears to have been in response to the requirements of federal law, rather than the 2008 amendments to section 39.502(17), Florida Statutes. Chapter 2008-245, section 9, Laws of Florida, amended section 39.502(17) to require that “the foster or preadoptive parents” of a child be given reasonable notice of all proceedings and hearings, and to specifically require that “[a]ll foster or preadoptive parents must be provided with at least 72 hours’ notice, verbally or in writing, of all proceedings or hearings relating to children in their care or children they are seeking to adopt to ensure the ability to provide input to the court.” § 39.502(17), Fla. Stat. (2008). Thus, as DCF points out, the legislation did not address “relative caregivers.” DCF states that federal law requires that in order to receive certain federal funding, states must have a “case review system” and a rule requiring notice to foster parents, preadoptive parents, and relative caregivers as a condition for such funding. See 42 U.S.C. § 629h(b)(l) (2006); 42 U.S.C. § 675(5)(G) (2006). DCF also asks that the Court clarify that the term “relative caregiver” should be defined as it is under federal law and that, as under federal law, requiring notice does not mean that a foster parent, preadoptive parent, or relative caregiver must be made a party to the proceeding. See 42 U.S.C. § 675(5)(G) (2006). Finally, DCF raises an issue with regard to the seventy-two- hour notice requirement. DCF argues that the wording of rule 8.225 should be modified to allow for flexibility where circumstances require immediate action by the court and it would be impractical or impossible to provide seventy-two hours’ notice.

In its response to DCF’s comments, the Committee acknowledges that the addition of “relative caregivers” to the rule was in response to federal requirements and that the term as it is used in the rule should be defined under federal law. The Committee also agrees that the rule should be clarified to explain that the notice requirement does not confer party status and proposes an additional amendment to rule 8.225(c) to accomplish this. The Committee does not agree with DCF’s suggestion that the rule be modified to specifically provide for an emergency circumstances exception to the seventy-two- hour notice requirement, but does propose an amendment to the rule to address notice of “emergency hearings.”

Upon consideration, we adopt the additional amendments proposed by the Committee with minor modifications. Florida Rule of Juvenile Procedure 8.225(c) is amended as reflected in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendment shall become effective immediately upon release of this opinion.

It is so ordered.

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

POLSTON, J., recused.

APPENDIX

RULE 8.225. PROCESS, DILIGENT SEARCHES, AND SERVICE OF PLEADINGS AND PAPERS

(a)-(b) [No change]

(c) Notice and Service of Pleadings and Papers.

(l)-(2) [No change]

(3) Notice of Hearings to Participants and Parties Whose Identity or Address are Known. Any preadoptive parents, all participants, including foster parents and relative caregivers, and parties whose identity and address are known must be notified of all proceedings and hearings subsequent to the initial hearing, unless otherwise provided by law. Notice to-parents in proceedings involving shelter.hearings and hearings resulting from-medical-emergenciesemergency hearings must be that which is most likely to result in actual notice. It is the duty of the petitioner or moving party to notify any preadoptive parents, all participants, including foster parents and relative care-takerscaregivers, and parties known to the petitioner or moving party of all hearings ■subsequent to the initial hearing, except hearings which must be noticed by the court. Additional notice is not required if notice was provided to the parties in writing by the court or is contained in prior court orders and those orders were provided to the participant or party. All foster or preadoptive parents must be provided at least 72 hours notice, verbally or in writing, of all proceedings or hearings relating to children in their care or children they are seeking to adopt to ensure the ability to provide input to the court. This subdivision shall not be construed to require that any foster parent, preadoptive parent, or relative caregiver be made a party to the proceedings solely on the basis of notice and a right to be heard.

(4)-(7) [No change]

      . For the sake of consistency, we modify the proposed amendment to use the term "relative caregiver,” rather than "relative caretaker.” Similarly, on our own motion, we amend the third sentence of rule 8.255(c) to replace the term "relative caretaker” with the term "relative caregiver.”


author: ROTHENBERG, J. COPE, J.,

text:
    Thomas KRAMER, Appellant, v. Verena VON MITSCHKE-COLLANDE and Claudia Miller-Otto, as heirs of the deceased, Siegfried Otto, Appellees.
    No. 3D07-1573.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2008.
    Rehearing and Rehearing En Banc Denied April 7, 2009.
    See also 797 So.2d 594.
    Greenberg Traurig and Hilarie Bass, Elliot H. Scherker, Barry Rothberg, and Daniel M. Samson, Miami, for appellant.
    Hunton & Williams and Christopher N. Johnson, Miami, for appellees.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Thomas Kramer (“Kramer”) appeals from an order domesticating an adverse Swiss partial judgment in the amount of approximately $100 million. We affirm.

The facts underlying the instant litigation are set forth in Otto’s Heirs v. Kramer, 797 So.2d 594 (Fla. 3d DCA 2001). Under the applicable Florida statute, the Swiss partial judgment can be domesticated here if it is a “foreign judgment that is final and conclusive and enforceable where rendered, even though an appeal therefrom is pending or is subject to appeal.” § 55.603, Fla. Stat. (2004). A foreign judgment is defined simply as “any judgment of a foreign state granting or denying recovery of a sum of money.” Id. § 55.602(2).

In April 2000, the District Court of the Canton of Zurich, the Swiss trial-level court, entered the initial partial judgment. On January 9, 2003, after its own plenary review, the High Court of the Canton of Zurich affirmed the judgment of the Zurich District Court, and entered the judgment that forms the basis for the instant appeal. Kramer’s nullity appeal to the Swiss Court of Cassation was rejected on November 17, 2003, and subsequently, a certificate of indefeasibility was attached to the January 9, 2003 partial judgment. The certificate of indefeasibility states that the Zurich High Court’s January 9, 2003 judgment is “rechtskráftig,” or final and conclusive, and capable of being enforced. Meanwhile, further proceedings were pending on another portion of the Swiss litigation, whereby an accounting was to be conducted, and eventually a second judgment for an additional amount was entered.

In the Florida trial court, after the judgment creditors came forward with a foreign judgment — which on its face awarded a monetary sum certain and stated that it was final, conclusive, and capable of enforcement in Switzerland — the burden shifted to Kramer to specify and prove a ground for non-recognition. § 55.604(2), Fla. Stat. (2004); Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000, 1005 (5th Cir.1990); Kam-Tech Sys., Ltd. v. Yardeni, 340 N.J.Super. 414, 774 A.2d 644, 650 (2001); Dart v. Balaam, 953 S.W.2d 478, 480 (Tex.App.1997). Kramer sought to prove that the certificate of inde-feasibility was erroneously affixed to the Swiss judgment, and that in fact, the judgment is not enforceable in Switzerland.

Both sides presented experts who offered conflicting opinions on whether, as a matter of Swiss law, the January 9, 2003 partial judgment of the High Court of the Canton of Zurich is enforceable in Switzerland at this time. Kramer’s experts posited that despite the certificate of indefeasi-bility entered in the Cantonal system, the January 9, 2003 partial judgment was neither final nor enforceable in Switzerland. Under their analysis, the prevailing party cannot enforce the judgment in Switzerland until a final judgment disposes of the remaining claims between the parties. Kramer argued that at that point, Swiss law affords him the right — should he choose to do so — to lodge a constitutional appeal with the Swiss Federal Supreme Court. Kramer argued that if he files such an appeal, the enforceability of the January 9, 2003 judgment will then be stayed pending resolution of the appeal, and therefore, it cannot be enforced at this time, either.

The Florida trial court considered the testimony and entered its judgment finding that the January 9, 2003 Swiss partial judgment is final, conclusive, and enforceable in Switzerland, and therefore, suitable for recognition and enforcement in Florida. This case presents a mixed question of fact and law. We do not disturb the trial court’s findings of fact because they are supported by competent substantial evidence. Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008). We review the trial court’s determinations of foreign law de novo. Transportes Aereos Nacionales, S.A. v. DeBrenes, 625 So.2d 4, 5 (Fla. 3d DCA 1993).

On appeal, Kramer urges this Court to find that the trial court erred in recognizing the January 9, 2003 judgment, because Kramer’s right to pursue a future appeal renders the judgment currently unenforceable in Switzerland. In support of this argument, Kramer directs our attention to a recent order of the Swiss Federal Supreme Court relating to the litigation between the parties. In that proceeding, Kramer sought a temporary order enjoining the enforcement of the January 9, 2003 judgment. The Swiss Federal Supreme Court entered a four-page order denying Kramer’s request. The Swiss Federal Supreme Court noted that “in principle” Kramer could challenge the January 9, 2003 order along with a future decision of the Court of Cassation entered on the remaining claims. However, the Swiss Federal Supreme Court declined to declare whether such an appeal would be admissible, and critically, it declined to issue any order staying the enforcement of the January 9, 2003 order. The Swiss Federal Supreme Court also noted that Kramer’s future appeal will be governed by the new Swiss code, which, according to expert testimony, does not automatically impose a stay of enforceability upon the judgment on appeal.

Thus, after being presented with Kramer’s arguments, the highest court in Switzerland made two important rulings. First, the Swiss Federal Supreme Court stated that Kramer may or may not be able to challenge the January 9, 2003 order by way of a future appeal. Second, the same court refused to stay the enforceability of the January 9, 2003 order, or to clarify that it is not currently enforceable. Kramer argues that these rulings, along with the testimony below, establish that the trial court’s recognition of the foreign judgment was erroneous. We disagree.

The sole issue in this appeal is whether Kramer carried his burden to specifically establish grounds for the non-recognition of the January 9, 2003 judgment. Kramer, after pursuing this case through the entire court system in Switzerland, failed to establish that any stay of enforceability is in effect. Furthermore, Kramer failed to establish that he even has a definitive right to a future appeal. All that Kramer could establish is that the January 9, 2003 judgment — which is stamped as final, conclusive, and capable of enforcement, and to which the courts of Switzerland have unanimously refused to apply suspensive effect — might be subject to an appeal sometime in the future. In such a situation, Florida’s Uniform Out-of-country Foreign Money Judgment Recognition Act is instructive: “This act applies to any foreign judgment that is final and conclusive and enforceable where rendered, even though an appeal therefrom is pending or is subject to appeal.” § 55.603, Fla. Stat. (2004) (emphasis added). The order on appeal is affirmed in all respects.

Affirmed.

WELLS, J., concurs.

COPE, J.,

dissenting.

This is an appeal of an order which domesticates in Florida a Swiss partial final judgment in the amount of $108,315,766. Under Florida law, the Swiss judgment can be domesticated here if it is “final and conclusive and enforceable where rendered, even though an appeal therefrom is pending or is subject to appeal.” § 55.603, Fla. Stat. (2007). The sole issue on appeal is whether this Swiss judgment is enforceable in Switzerland.

I.

By way of background:

In December, 1991, Siegfried Otto, a prominent and successful German businessman, entrusted some $145 million to his then son-in-law, Thomas Kramer. Kramer invested approximately $100 million thereof in various Florida business entities and real properties situated on Miami Beach. Under the parties’ agreement, Kramer was to make periodic payments to Otto. The deal soured and Otto commanded the immediate return of his money. The dispute resulted in a written agreement whereby Kramer would return $20 million to Otto immediately, and make continuing additional payments. The agreement contained a forum selection clause wherein the parties agreed to bring any suit against one another in the courts of Switzerland.
Thereafter, Kramer initiated in the Swiss courts that which we would consider a declaratory judgment, seeking a determination that Kramer had fulfilled all his obligations to Otto....
Otto then defended the Swiss action, wherein he also brought a counter-claim seeking recovery of his money. During the pendency of that action, Otto died and his hems at law were substituted as parties Plaintiff. Some four years later the Swiss court resoundingly concluded that the parties’ settlement agreement was valid and fully enforceable by Otto’s heirs. In that order, the Swiss court termed Kramer’s position as “dubious” “groundless” and “quite simply incom-prehensive”. Accordingly, the Swiss court entered a partial final judgment, determining the heirs were entitled, at that point, to some $90,834,469.16. Also, the Swiss court retained jurisdiction to supervise an accounting to determine what additional sums Kramer might owe the heirs. Kramer appealed the Swiss ruling and that judgment is presently stayed pending appeal.1
FNl. Under Swiss law, the filing of a notice of appeal and the posting of a cost bond, which in this case was approximately a half million dollars, is all that is required to stay the enforcement of a judgment. For this reason, the Swiss judgment may not be enforced under § 55.601 Fla. Stat. (2000), at this time. Otto’s heirs do not challenge the lack of a supersedeas bond on any basis and consequently, we do not reach that issue.
We are told by Kramer that applying the doctrine of comity, we must respect the Swiss court’s stay and take no action to enforce the judgment in the heirs’ favor. We entirely agree.

Otto’s Heirs v. Kramer, 797 So.2d 594, 595-97 (Fla. 3d DCA 2001).

The issue in the above quoted case was whether allowing a pure bill of discovery violated the Swiss court’s stay. Id. at 597. This court allowed the pure bill of discovery to proceed. Id.

As matters stood in 2001, then, a partial final judgment had been entered in the Swiss trial court, which is their District Court. Kramer had filed a notice of appeal and cost bond, which was sufficient to stay the enforcement of the partial final judgment. Id. at 596 n. 1.

II.

Under the Swiss system, there is a District Court (trial court), a Higher Court (equivalent to our court of appeal), a Court of Cassation (similar to the Florida Supreme Court), and the Swiss Federal Court, which would be similar to the United States Supreme Court. However, the Swiss Federal Court has a mandatory jurisdiction, that is, the court must review all appeals properly brought there.

Kramer appealed the 2000 partial final judgment to the Higher Court, which affirmed in 2003. He then pursued an appeal to the Court of Cassation. He lost that appeal in 2003 as well.

At this stage of the proceedings, Kramer did not file an appeal with the Swiss Federal Court. Kramer’s analysis is that under the Swiss federal law, a partial final judgment is not immediately renewable in the Swiss Federal Court. Instead, Kramer states that under the applicable statute, a litigant must wait until there is a final judgment disposing of the entire case. When a final judgment is rendered, the litigant may appeal not only the final judgment, but any previously entered partial final judgment. There is a limited list of matters that can be the subject of an immediate appeal to the Swiss Federal Court, such as jurisdictional matters, but a partial final judgment is not among them.

The appellees, Verena von Mitschke-Collande and Claudia Miller-Otto (“the heirs”) argue the opposite. The heirs contend that there was a recently developing trend in the Swiss Federal Court not only to allow, but to require, that a partial final judgment be appealed immediately. The heirs’ position is that Kramer was obligated to pursue an appeal of the partial final judgment to the Swiss Federal Court and, having failed to do so, the partial final judgment became final.

After the time for taking a further appeal expired, the High Court Clerk issued a certificate of indefeasibility, which was attached to the High Court judgment. This would normally signify that the judgment is final and enforceable.

Controversy about the certificate ensued, and the Clerk issued a clarification stating that under the applicable statute (which is referred to as the OG) the “legal force and enforceability is granted with the proviso of article 48 ... OG, according to which partial judgments for reasons of federal law as a rule are only final and absolute in conjunction with the final decision.” That clarification was issued in 2008, and issued again in 2004.

III.

Acting on the premise that the partial final judgment had become enforceable, the heirs pursued enforcement in England. The heirs contended that the partial final judgment was enforceable while Kramer contended that it was not. To determine enforceability, the British Court directed Kramer to transfer $100,000 to a specific bank account in Zurich, Switzerland. This was done in order to afford the heirs the opportunity to initiate enforcement proceedings in Switzerland, so that Swiss courts would authoritatively determine the issue of enforceability. The heirs declined to proceed in Switzerland and the British court permanently stayed the proceedings in England.

Meanwhile, litigation proceeded between the heirs and Kramer in the Swiss District Court. In 2005, the District Court entered a final judgment on the remaining amount of damages, thus concluding the entire case. Kramer appealed that judgment to the Swiss High Court and the appeal is pending there.

IY.

In 2004, the hems initiated the instant action which seeks to domesticate the Swiss partial final judgment in Florida. As was true of the proceedings in England, the entire issue here is whether the partial final judgment is currently enforceable within Switzerland. The trial court conducted an evidentiary hearing in March 2007. Both sides presented experts on Swiss law. Both sides’ experts have substantial credentials. The trial court relied on the certificate of indefeasibility as indicating that the partial final judgment was immediately enforceable. The court then entered final judgment in favor of the heirs, and Kramer has appealed.

V.

I am sympathetic to the position of the heirs, who hold a large, unsatisfied judgment with appellate proceedings pending but no bond posted. Our task, however, is a narrow one. We are to determine whether the Swiss partial final judgment is enforceable in Switzerland, and thus entitled to enforcement in Florida. See § 55.608, Fla. Stat. (2007). Based on the existing record and a recent decision of the Swiss Federal Court, the conclusion is inescapable that the partial final judgment is not presently enforceable. We are therefore obligated to reverse the judgment.

At the trial the heirs presented the expert testimony of Dr. Barbara Graham-Siegenthaler, a law professor. Dr. Graham-Siegenthaler acknowledged that an authoritative treatise on Swiss law (Frank, Strauli & Messmer) stated that partial judgments of the higher cantonal courts do not acquire formal res judicata effect before the expiration of the time limits for the filing of an appeal against the final judgment to the Federal Supreme Court. The expert acknowledged that the treatise so stated, but also pointed out that the treatise explained that this view had been strongly criticized.

The expert said that in her view there was a distinction to be drawn between a partial final judgment awarding money damages, on the one hand, and interlocutory decisions on procedural matters, on the other. The expert stated that the law regarding the appealability of partial judgments had been undergoing change. She explained that some exceptions had been recognized as early as 1978, and that in 2004 the Federal Court had ruled that an international arbitral matter was appeal-able whether in the form of a partial or complete judgment. The expert also cited a 2004 ruling allowing appealability of a partial judgment in a probate case. Dr. Graham-Siegenthaler opined that as a result of those decisions, the Swiss Federal Court’s interpretation of the law had changed. She said that the partial final judgment was one which must be immediately appealed to the Swiss Federal Court and, since that was not done, the partial judgment had become final and enforceable.

The heirs also presented the testimony of Professor Karl Spiihler, who had previously been a member of the Swiss Federal Court. Dr. Spühler’s opinion was to the same effect.

Kramer presented as an expert Dr. Balz Gross, who represented Kramer in the Swiss proceedings. Kramer also presented Dr. Nicolas von Werdt, an attorney and part-time judge with the Swiss Federal Court. To make a long story short, both opined that the partial final judgment was (with narrow exceptions) not subject to an immediate appeal, has not become final, and is not enforceable in Switzerland.

What divided the experts was the question whether there had been a recent change in the rulings of the Swiss Federal Court on when a partial final judgment had to be appealed. Both sides agreed that under the traditional view, a partial final judgment was not immediately ap-pealable (except on narrow grounds, see below) and a plenary appeal could not be taken except in conjunction with the appeal of the final judgment in the case.

Where the two sides differed was over the question whether Swiss Federal law had recently changed, such that a partial final judgment for money damages not only could be, but had to be, appealed immediately. The heirs’ experts contended that the international arbitration case had changed the rules regarding the immediate appealability of a partial final judgment. Kramer’s experts opined that no such change had occurred.

While this Florida appeal was pending, the Swiss Federal Court issued an opinion (in a proceeding filed by Kramer) which answers the question. The rules have not changed. The partial final judgment was not immediately appealable.

This opinion was issued because Kramer filed a petition in the Swiss Federal Court, attempting to have that court take jurisdiction of the entire Swiss dispute. He requested entry of an order which would stay execution of both Swiss judgments, the earlier partial final judgment and the 2005 final judgment. The Swiss Federal Court issued a written opinion denying relief on the ground of lack of jurisdiction.

In its opinion, the Swiss Federal Court addressed the applicable Swiss jurisdictional principles. The Court said that the heirs’ partial final judgment “is not a final decision within the meaning of Art. 87 OG. On the contrary, it is a decision that adjudicated only a part of the claims being asserted, and is thus a partial judgment[.]” Bundesgericht [BGer] [Federal Court] June 13, 2007, para. 3.2.

Important for our purposes, the Court explained, “Interim decisions can only be appealed independently in exceptional cases, where they relate to a question of jurisdiction or a request for recusal or where they could result in an irreparable disadvantage.” Id. (emphasis added). Otherwise an interim decision can only be appealed in conjunction with the appeal of the final decision in the case.

The significance of the Swiss Federal Court’s opinion is in its language (quoted above) addressing what interim decisions can be independently appealed. The opinion confirms what Kramer’s experts said in the trial court here in Florida. It completely undercuts the heirs’ experts’ opinions that recent Swiss Federal Court decisions had changed the rules so as to require an immediate appeal of a partial final judgment.

In light of the Swiss Federal Court’s ruling, it is clear that the Swiss partial final judgment is not enforceable in Switzerland at this time. It is therefore necessary to reverse the judgment now before us.

      . The District Court of the Canton of Zurich entered a final judgment disposing of the remaining claims on March 23, 2005, and Kramer filed an appeal with the High Court of the Canton of Zurich. Under the pre-2007 Swiss federal statute governing appeals, the taking of the appeal resulted in an automatic stay of judgment. According to the expert testimony, the Swiss federal laws applicable to appeals have changed effective January 1, 2007. The changes include a modification of the procedure for obtaining a stay pending appeal, so that a stay pending appeal under the new code will no longer be automatic. The new code will apply to appeals initiated after January 1, 2007.

      . OG is an abbreviation for the Federal Law on the Organization of the Judicial System. This governed the Federal Supreme Court's jurisdiction until December 31, 2006.
      A new law, the Swiss Federal Law on the Supreme Court (referred to as the BGG) went into effect January 1, 2007. It does not apply retroactively.

      . The jurisdictional problem was that Kramer’s appeal of the final judgment was pending in the Swiss High Court and had not yet reached the Swiss Federal Court. That being so, the Swiss Federal Court concluded that it had no power to take jurisdiction of Kramer's petition, and on that basis denied Kramer’s request for extraordinary relief.

      . The Swiss Federal Court also left open the question of how to interpret the interrelationship of the new appellate law, the BGG, which would govern the appeal from the final judgment, and the previous appellate law, the OG, which would apply to the partial final judgment.


text:
    Kevin BLACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-3244.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2009.
    Rehearing Denied Feb. 27, 2009.

      Kevin Black, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Sarah J. Rumph, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. See Grace v. Fla. Parole Comm’n, 985 So.2d 1213 (Fla. 1st DCA2008).

KAHN, BENTON, and BROWNING, JJ., concur.


author: WELLS, Judge.

text:
    The JUSTICE ADMINISTRATIVE COMMISSION, etc., Petitioner, v. Maria BERRY and Manuel F. Garcia, Respondents.
    Nos. 3D08-2541, 3D08-2266.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2009.
    Rehearing and Rehearing En Banc Denied April 22, 2009.

      Stephen M. Presnell, General Counsel, and Christian D. Lake, Assistant General Counsel, for petitioner.
    Kevin G. Thomas, for respondents.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   WELLS, Judge.

In these separate petitions for writ of certiorari, the Justice Administrative Commission seeks review of two final orders directing it to pay attorneys’ fees to two attorneys, Manuel Garcia and Maria Berry, for representing putative fathers in separate termination of parental rights (“TPR”) proceedings. We consolidate the petitions for purposes of review and grant the petitions, finding that the trial court departed from the essential requirements of the law in ordering the Commission to pay attorneys’ fees where indigency was not, because it could not be, determined. See Anderson v. E.T., 862 So.2d 839, 840 (Fla. 4th DCA 2003) (stating that a petition for writ of certiorari is the proper method for reviewing orders awarding attorney’s fees to court-appointed counsel).

The facts in both of these cases are substantially the same. In both cases, the Department of Children and Families filed petitions to terminate the parental rights of fathers whose whereabouts could not be determined. Because their whereabouts were unknown, both fathers were served with TPR petitions and noticed of statutorily mandated advisory hearings by publication. See § 39.801(3)(a), Fla. Stat. (2007) (providing that before parental rights may be terminated, notice of an advisory hearing for the petition and a copy of the petition must be personally served on the parents of the child at issue); § 39.801(3)(b), Fla. Stat. (2007) (providing that if notice cannot be served personally, “service of process must be made as specified by law or civil actions”); Fla. R. Juv. P. 8.505(c) (providing for service by publication in termination of parental rights proceedings for “[p]arties whose identities are known and on whom personal service of process cannot be effected”).

In each case, the fathers failed to appear at an advisory hearing and were deemed to have consented to termination of their parental rights. See § 39.801(3)(d), Fla. Stat. (2007) (providing that failure to personally appear at an advisory hearing following notice constitutes consent to termination of parental rights). Despite the fact that neither father appeared at an advisory (or any other) hearing, both were found to be indigent and had counsel appointed to represent them in their respective TPR proceedings. The orders appointing counsel were then forwarded to the Commission.

Following termination of these fathers’ parental rights, the attorneys appointed to represent them, Mr. Garcia and Ms. Berry, submitted bills to the Justice Administrative Commission for payment. The bills were rejected because the Commission could not determine that these fathers were indigent. The attorneys petitioned the trial court for relief, which ordered the Commission to process the attorneys’ bills “for payment by the State of Florida.” These petitions ensued.

We agree with the Commission that the court below departed from the essential requirements of the law in requiring it to process, and to have paid, bills for attorneys’ fees for representation of individuals who were not properly determined to be indigent. Section 89.807 of the Florida Statutes governs the right to counsel in proceedings such as these and expressly authorizes appointment of counsel for indigent parents:

At each stage of the proceeding under this part, the court shall advise the parent of the right to have counsel present. The court shall appoint counsel for indigent parents.

§ 39.807(l)(a), Fla. Stat. (2007) (emphasis added). This provision confers no authority to appoint counsel for parents who are not indigent. It also confers no authority to order the state, in contravention of section 29.007 of the Florida Statutes, to pay the fees of an attorney appointed to represent someone who is not indigent. See § 29.007(1), Fla. Stat. (2007) (authorizing the use of state revenues to pay fees incurred by attorneys appointed to “handle cases where the defendant is indigent”); see also § 27.40(1), Fla. Stat. (2007) (generally authorizing appointment of counsel in criminal or civil proceedings for those entitled to counsel under “the Federal or State Constitution or as authorized by general law”).

Neither of the fathers in these two cases appeared at any stage of the proceedings below. Thus, no determination of indigen-cy was possible as to either of them. See § 57.082, Fla. Stat. (2007) (requiring disclosure of net income, assets, liabilities and debts for determination of indigent status in civil cases); § 39.807, Fla. Stat. (2007) (providing that a dependency court may appoint counsel for indigent parents and shall enter its findings regarding indigen-cy); Fla. R. Juv. P. 8.515(a)(4) (same). Absent such determinations, counsel should not have been appointed and certainly no payment by the state mandated.

The two orders on review do not, however, stem from these provisions which have been “on the books” and in operation for a substantial period of time. Rather, they spring from the trial court’s interpretation of this Court’s recent decision in S.S. v. State, Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), and the trial court’s conclusion that the Commission was estopped from denying payment. Neither reason supports the orders on appeal.

In S.S., this Court, in a short concise opinion, did two things. First, we reversed a final judgment terminating a mother’s parental rights because the record demonstrated that the mother, who had failed to appear at an advisory hearing, had not been properly served with notice of the TPR petition and the advisory hearing:

In this case, however, DCF and the record do not establish that the mother was personally served with the statutory notice required by paragraph 39.801(3)(a), Florida Statutes (2006):
FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.
Because the delivery of this notice is an express condition precedent to the draconian consequences of a parent’s failure to appear, it follows that, on that point alone, the termination of parental rights in this case must be reversed and remanded for further proceedings.

Id. at 42 (footnote omitted).

Second, we reiterated what earlier precedent had already made clear: that DCF must place evidence in the record to establish a prima facie case sufficient to support termination of a parent’s rights even where that parent, after proper notice, fails to appear and is statutorily deemed to have consented to termination of his or her parental rights:

But in the event that, after confirmed service of the second amended petition for TPR including the printed statutory notice, S.S. fails to appear at the advisory hearing, DCF nevertheless must prove, by competent substantial evidence, those allegations in the petition relied upon by DCF to support a final judgment in conformance with the statutory requirements for TPR. We previously have held that a trial court errs when it terminates parental rights following a default but takes no evidence in support of the termination. See R.H. v. Dep’t. of Children & Family Servs., 860 So.2d 986, 988 (Fla. 3d DCA 2003). The effect of an “implied, presumed or constructive consent” under paragraph 39.801(3)(d) has been analyzed in detail in Department of Children & Families v. AS., 927 So.2d 204 (Fla. 5th DCA 2006). That analysis concluded squarely, and we agree, that “consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.” Id. at 208.
We reject DCF’s argument that In re W.C., 797 So.2d 1273 (Fla. 1st DCA 2001) excuses the presentation of evidence following a respondent parent’s non-appearance at the advisory hearing. The case does not say that, apparently because the appellant there did not raise the issue.

S.S., 976 So.2d at 42-43.

Absolutely nothing in these pronouncements hints or suggests, much less states, that a parent who does not appear for an advisory hearing, and who thereby has been deemed to have consented to termination of his or her parental rights, must have counsel appointed to stand mute while DCF spreads its case on the record. •We therefore reject the trial court’s conclusion that because “the 3rd District issued this opinion [in S.S.] that we consider somewhat bizarre where we now have to give parents who don’t show up almost more due process than parents who do,” counsel must be appointed and paid for by the state without any showing of indigen-cy.

We also reject the determination that the Commission was somehow es-topped from denying payment of the attorneys’ fee bills because it failed to immediately object to appointment of counsel upon receipt of the respective appointment orders. There is no basis in law or fact to support this finding.

Estoppel, whether asserted as a claim for relief or as a defense, has recognized essential elements. They are: “(1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” State v. Harris 881 So.2d 1079, 1084 (Fla.2004). As the Commission points out, it is not a party to dependency proceedings and it is not present when counsel is appointed; thus, it makes no representations whatsoever regarding payment at the time of appointment. Furthermore, although copies of the orders appointing counsel in these two cases were provided to the Commission, they do not indicate how indigen-cy was determined, or even that the fathers failed to appear before the court below. Thus, the Commission rightly notes that it did not have all the information necessary to make a payment determination in these cases until after the attorneys submitted their fee bills and the Commission reviewed them for compliance with statutory and contractual requirements. See § 27.5304(2),(4) Fla. Stat. (2007) (requiring court-appointed counsel to submit their fee bills “within 90 days after the disposition of the case at the lower level,” and requiring the Commission to “review an intended billing by private court-appointed counsel for attorney’s fees based on a flat fee per case for completeness and compliance with contractual and statutory requirements”). More importantly, the Commission’s silence upon receipt of the orders appointing counsel could not operate as an estoppel in these cases because Mr. Garcia and Ms. Berry had equal knowledge of the facts herein, if not more, and also the same means of ascertaining that knowledge. See Mizell v. Deal, 654 So.2d 659, 663 (Fla. 5th DCA 1995) (stating that “estoppel based upon silence cannot exist where the parties have equal knowledge of the facts or the same means of ascertaining that knowledge”).

Simply put, there is no evidence to support a finding of estoppel so as to justify an order obligating the Commission to pay the attorneys appointed in these cases. Rather, the onus was on counsel appointed by the trial court to ascertain whether his or her client was indeed indigent and had been properly determined to be so, and if not, to timely seek relief.

For these reasons, the Commission’s petitions are granted and the orders requiring it to the pay Mr. Garcia’s and Ms. Berry’s fees are quashed.


author: EVANDER, J.

text:
    Lazaro GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3794.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2009.
    Rehearing Denied March 25, 2009.

      William R. Ponall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Lazaro Gomez appeals from his conviction for attempted first degree murder with a firearm. He contends that the trial court committed fundamental error by 1) failing to instruct the jury on justifiable attempted homicide and 2) failing to instruct the jury on the necessarily lesser-included offense of attempted first degree murder without a firearm. We affirm.

The victim was Gomez’ former girlfriend. She testified that Gomez had driven to her place of employment and demanded that she get into his car. When she refused, Gomez pointed a gun at her and repeated his demand. When the victim still refused, Gomez shot her in the neck, rendering her a quadriplegic. The victim’s testimony was corroborated by several eyewitnesses.

During the charge conference, defense counsel requested the giving of the definition of excusable homicide but advised the court that the justifiable homicide definition was “not really applicable.” Based on defense counsel’s statement, the prosecutor agreed to delete the definition of justifiable homicide from the proposed jury instructions. As to lesser-included offenses, the trial court granted defense counsel’s request to instruct the jury on attempted second degree murder with a firearm, attempted voluntary manslaughter with a firearm, and aggravated battery causing great bodily harm or with a firearm. There was no request for an instruction on attempted first degree murder without a firearm.

We find that defense counsel specifically waived the right to have the jury instructed on justifiable attempted homicide by advising the trial court that the instruction was not applicable. Armstrong v. State, 579 So.2d 734 (Fla.1991).

Gomez’ second argument on appeal must also fail. A trial court must instruct the jury on necessarily-included lesser offenses when a timely request is made to do so. Rodriguez v. State, 789 So.2d 513, 514 (Fla. 5th DCA 2001). When there is no timely request made by the defendant, a trial court’s failure to instruct on a necessarily-lesser included offense in a non-capital case does not constitute fundamental error. See Jones v. State, 484 So.2d 577 (Fla.1986); Richards v. State, 809 So.2d 38 (Fla. 5th DCA 2002).

AFFIRMED.

MONACO and LAWSON, JJ, concur.

      . Gomez' appellate attorney was not trial counsel.

      . Gomez’ reliance on Ahmed v. State, 984 So.2d 676 (Fla. 5th DCA 2008) is misplaced. Because of the State’s concession of error in Ahmed, that opinion sets forth few facts and, thus, is of limited precedential value. Significantly, there is nothing in the Ahmed opinion that suggests the defendant affirmatively requested the deletion of the definition of justifiable homicide from the jury instructions.


author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Allen L. DORSEY, a/k/a Allen L. Dorsey, Jr., Appellee.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   WALLACE, Judge.

The State appeals a pretrial order suppressing both out-of-court and in-court identification testimony implicating Allen L. Dorsey (the Defendant) in a home-invasion robbery. We treat the State’s notice of appeal as a petition for writ of certiorari. See State v. Pettis, 520 So.2d 250 (Fla. 1988); see also State v. Styles, 962 So.2d 1031 (Fla. 3d DCA 2007) (reviewing by certiorari a pretrial order suppressing a photographic array by which the victim identified the defendant); State v. Francois, 863 So.2d 1288 (Fla. 4th DCA 2004) (reviewing by certiorari a pretrial order suppressing identification testimony because the procedure used in a photographic lineup was impermissibly suggestive).

We deny the petition as to the out-of-court identification because the trial court did not depart from the essential requirements of law in suppressing the out-of-court identification testimony. However, because the trial court failed to apply the correct legal analysis with respect to the in-court identification, we grant the petition as to the in-court identification only.

I. THE FACTS

A. The Robbery

At about midnight on January 30, 2007, Ryan Young and his brother, John Young, were in the living room of the residence that the two men shared. Ryan was watching television, and John was asleep on the couch. Ryan heard the family dogs barking at something in the kitchen. He walked into the kitchen to quiet the dogs. As soon as Ryan entered the kitchen, he saw a man who promptly pointed a shotgun at him and marched him back into the living room. The shotgun-toting robber immediately demanded money. The noise caused John to awake.

Ryan told the robber that there was some money on a dresser in one of the bedrooms. The robber directed both men into that bedroom. Ryan collected the money on the dresser and handed it to the robber.

After the robber had the money, he saw a video game console on the floor in the bedroom. The robber ordered Ryan to disconnect the video game console and give it to him. While Ryan was engaged in disconnecting the video game console, the robber forced John to kneel on the floor and face the wall. Then, the robber frisked John to see if he had any money in his pockets.

When Ryan finished disconnecting the video game console, he handed it to the robber. Next, the robber slowly backed out of the bedroom, pointing the shotgun directly at Ryan. As the robber closed the bedroom door, he announced, “If anybody opens up this door, I’m blowing their head off.”

After the robber left the house, John called the authorities. The Pasco County Sheriffs Office investigated the robbery. Ryan described the robber as an African-American male, approximately six feet tall, and weighing 185 to 190 pounds. The robber was wearing three or four shirts. The robber’s outermost shirt was black and his undershirt was white. Ryan explained that the robber’s multiple shirts made it difficult to estimate how much he weighed. Ryan also remembered that the robber was wearing a “black little snow hat.” This hat did not cover or obscure the robber’s face. Notably, Ryan told the investigating officers that the robber had a goatee.

B. The Out-of-Court Identification

On March 7, 2007, approximately five weeks after the robbery, Detective James Medley of the Pasco County Sheriffs Office showed Ryan a photographic array or “photo-pack” consisting of the photographs of the faces of six African-American males. Prior to displaying the photo-pack to Ryan, Detective Medley instructed him not to guess when viewing the photographic lineup. Detective Medley further cautioned Ryan as follows: “The suspect may or may not be in the photo lineup. Look at the physical features of the six persons in the photo lineup.” He also warned Ryan, “You have to be absolutely sure.” According to Detective Medley, Ryan— without hesitation — selected a photograph of the Defendant as depicting the robber. When Detective Medley asked Ryan how he identified the robber, Ryan replied, “The eyes.”

Detective Medley also displayed the photo-pack to John. However, John was unable to identify a suspect from the photo-pack.

C. The Proceedings in the Circuit Court

The State subsequently charged the Defendant with the home-invasion robbery of Ryan and John. The Defendant filed a motion asking the circuit court to suppress both “the photo line up and any testimony by Ryan Young identifying the Defendant as the assailant.” In the motion, the Defendant noted that he was the only person depicted in the photo-pack who had facial hair.

The circuit court conducted an evidentia-ry hearing on the motion to suppress the identification. The State presented the testimony of Ryan and Detective Medley at the suppression hearing; the Defendant did not call any witnesses. In open court, Ryan identified the Defendant as the robber.

At the hearing, Ryan testified in some detail about his opportunities to observe the robber. He said that the entire incident had lasted from ten to twelve minutes. Because the kitchen was dimly lit, Ryan was not able to see the robber clearly when he first saw him. However, Ryan testified that the living room and the bedroom — where he had spent most of his time with the robber — were brightly lit. Thus, except for the time he spent disconnecting the video game console, Ryan was able to closely observe the robber’s features. During the entire encounter, Ryan was never more than a few feet away from the robber. And Ryan had to face the robber directly when he handed him the money from the dresser and the video game console. Unlike John, Ryan had not been forced to kneel on the floor and face the wall. Consequently, Ryan was able to observe the robber as the robber backed out of the bedroom to leave.

On cross-examination, defense counsel elicited from Ryan the fact that the picture that Ryan had selected from the photo-pack was the only one depicting a man with a goatee. However, when pressed to explain how he had identified the Defendant as the robber, Ryan testified that the goatee was not a factor that influenced his decision to select the Defendant’s photograph. Instead, Ryan repeatedly explained that he “just looked at the eyes.” Asked to explain how the robber’s eyes differed from the eyes of the other five men in the photo-pack, Ryan replied:

It’s the way [the robber] looked down the [gun sight], I don’t know. I don’t know how to explain it, but just whenever he was looking down the [gun sight], pointing the shotgun right at me, I was just able to tell. I don’t know, really, how to explain it. I just know that’s his eyes and everything.

Thus Ryan’s testimony about how he had identified that Defendant’s photograph based upon “his eyes and everything” was consistent with what he had told Detective Medley immediately after selecting the Defendant’s photograph from the photo-pack.

II. THE OUT-OF-COURT IDENTIFICATION

A. The Applicable Law

The determination of whether to exclude an out-of-court identification is determined by a two-pronged test: (1) whether the police used an unnecessarily suggestive procedure and (2), if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidenti-fication. See Manson v. Brathwaite, 432 U.S. 98, 110-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Rimmer v. State, 825 So.2d 304, 316 (Fla.2002). The factors to be considered in evaluating the likelihood of misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

B. Discussion

The trial court found that the photo-pack was impermissibly suggestive because, out of the six African-American males depicted in the photo-pack, the Defendant was the “only one [having] distinct facial hair about the mouth,” a fact that Ryan had mentioned to police in his description of his attacker. Having found that the photo-pack was impermissibly suggestive, the trial court then analyzed each of the Biggers factors. The trial court found that (1) Ryan “had a limited period of time to observe the suspect while under a significant level of threat to himself and his family,” (2) Ryan’s degree of attention to the robber was “questionable,” (3) Ryan’s estimate of the robber’s height and weight differed from the Defendant’s height and weight, (4) the level of certainty of Ryan’s identification “was very low,” (5) Ryan did not view the photo-pack until more than one month after the offense, and (6) Ryan’s brother did not select the Defendant’s photograph from the photo-pack “even though [John] had the same opportunity to view [the] suspect during the robbery.” As a result, the trial court concluded that the photo lineup identification of the Defendant as the robber was not reliable and granted the Defendant’s motion to suppress this identification evidence.

The State makes a persuasive argument that the trial court’s Biggers analysis reaches the wrong result. However, “[because certiorari is used to correct only the most serious errors, it is not enough to show that the order to be reviewed is incorrect.” State v. Smith, 951 So.2d 954, 957 (Fla. 1st DCA 2007). Instead, “[t]o obtain review of a pretrial order in a criminal case by certiorari, the State must show that the order is a departure from the essential requirements of the law.” Id. Here, the State has not demonstrated that the circuit court applied the wrong law in reaching its decision excluding evidence concerning the out-of-court identification of the Defendant. Therefore, we are unable to conclude that the circuit court departed from the essential requirements of law in suppressing the out-of-court photo-pack identification. See State v. Storer, 920 So.2d 754, 758-59 (Fla. 2d DCA 2006); Smith, 951 So.2d at 957-58.

III. THE IN-COURT IDENTIFICATION

A. The Applicable Law

When the police have obtained a pretrial identification by means of an unnecessarily suggestive procedure, an “in-court identification may not be admitted unless it is found to be reliable and based solely upon the witness’ independent recollection of the offender at the time of the crime, uninfluenced by the intervening illegal confrontation.” Edwards v. State, 538 So.2d 440, 442 (Fla.1989) (citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)).

In gauging the reliability of an in-court identification, the trial judge must consider the following factors: [ (1) ] the prior opportunity the witness had to observe the alleged criminal act; [ (2) ] the existence of any discrepancy between any pretrial lineup description and the defendant’s actual description; [ (3) ] any identification prior to the lineup of another person; [ (4) ] any identification by picture of the defendant prior to the lineup; [ (5) ] failure to identify the defendant on a prior occasion; [ (6) ] any time lapse between the alleged act and the lineup identification; and [ (7) ] any other factors raised by the totality of the circumstances that bear upon the likelihood that the witness’ in-court identification is not tainted by the illegal lineup.

Id. at 443 (citing Wade, 388 U.S. at 241, 87 S.Ct. 1926). The State has the burden to show that the in-court identification has an independent source. Id. at 444 (citing Wade, 388 U.S. at 242, 87 S.Ct. 1926).

B. Discussion

In its order, the trial court noted only that the impermissibly suggestive lineup tainted any further in-court identification. However, the circuit court did not conduct a separate analysis of the factors to be considered in gauging the reliability of an in-court identification when the police have obtained a pretrial identification by means of an unnecessarily suggestive procedure. This constituted a departure from the essential requirements of law.

IV. CONCLUSION

Based on the above, we deny the State’s petition for writ of certiorari with respect to the out-of-court identification, but we grant the State’s petition with respect to the in-court identification. We quash the trial court’s order solely with respect to the suppression of the in-court identification and remand for further proceedings.

The petition for writ of certiorari is denied in part and granted in part, and the case is remanded for further proceedings.

NORTHCUTT, C.J., and STRINGER, J., concur.


author: STRINGER, Judge.

text:
    STATE of Florida, Appellant, v. Malachi Howard EASTRIDGE, a/k/a Michael Howard Eastwood, Appellee.
    No. 2D07-6000.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
   STRINGER, Judge.

The State seeks review of the downward departure sentence the trial court imposed after finding that Malachi Howard Eas-tridge violated his probation. The State argues that the court erred in imposing a downward departure sentence without providing a valid basis for departure. We agree that one of the court’s stated bases for departure was without merit. Because we are unable to conclude that the court meant to depart downward on the second basis, we reverse and remand for reconsideration.

In the underlying cases, Eastridge pleaded guilty to four counts of armed kidnapping (counts 1-4), three counts of sexual battery (counts 5-7), one count of robbery (count 8), and one count of grand theft (count 9). The court sentenced Eas-tridge to concurrent terms of thirty years in prison on counts 5-7 and a concurrent five-year term on count 9, followed by concurrent terms of thirty years of probation on counts 1-4 and 8. Eastridge served approximately fourteen years in prison, was credited with approximately sixteen years of gain time, and was released to serve his probation.

Eastridge subsequently violated his probation, and the court held a revocation hearing at which the court decided to impose a sentence of fifteen years in prison on count 1 followed by concurrent terms of life probation on counts 2-4 and thirty years of probation on count 8. Because the sentencing guidelines permitted a sentence of twenty-seven years to life, the State objected to the downward departure. At first, the court acknowledged the sentence was a downward departure and explained that the “sole reason for the downward departure” was testimony from one of the victims who forgave Eastridge because he had sent her a letter apologizing for kidnapping and sexually battering her in 1992. The court subsequently decided that because the Department of Corrections (“DOC”) would revoke Eastridge’s sixteen years of gain time, it was actually imposing a guidelines sentence. The court suggested that the DOC would add the sixteen years of gain time to the sentence imposed by the court. Thus, the court appeared to believe that the time Eas-tridge would serve was actually thirty-one years, which was within the sentencing guidelines range of twenty-seven years to life.

On appeal, the State argues that the trial court erred in imposing a downward departure sentence without a valid reason for departure. Based on the State’s repeated objections to the sentence in this case, we find that the issue was sufficiently preserved for review. As the State argues on appeal, the court’s determination that it was not imposing a downward departure sentence is faulty. It is true that the DOC has the authority to forfeit Eastridge’s gain time from the prison sentence he served for counts 5-7 and 9 because he was sentenced under one scoresheet. See Gibson v. Fla. Dep’t of Corrections, 885 So.2d 376, 383 (Fla.2004). However, the DOC would not impose the forfeiture penalty in addition to the sentence imposed by the trial court upon a revocation of probation; instead, the DOC would require Eastridge to serve the greater of the two terms when any credit for time actually served was applied to the court’s sentence. Id. at 383. Thus, the trial court erroneously believed that the DOC’s forfeiture of gain time would make the fifteen-year sentence the court imposed a thirty-one year sentence.

Accordingly, it is clear that the court imposed a downward departure sentence in this case. What is not so clear is whether the court intended to do so. Even if the court did intend to depart downward, a loss of gain time is not a valid basis to depart downward. See State v. Nathan, 632 So.2d 127, 128 (Fla. 1st DCA 1994). A victim’s consent or request for lenient sentencing, however, may be a valid basis for a downward departure. State v. Bernard, 744 So.2d 1134, 1136 (Fla. 2d DCA 1999); State v. Powell, 696 So.2d 789, 791 (Fla. 2d DCA 1997). But see State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008) (rejecting the victim’s request for leniency as a valid basis for departure); State v. Ussery, 543 So.2d 457, 457 (Fla. 5th DCA 1989) (same). We are hesitant to consider whether the victim’s testimony supports the downward departure sentence without a clear understanding that it was the trial court’s intent to impose the sentence on this basis. Accordingly, we reverse and remand for reconsideration.

Reversed and remanded.

NORTHCUTT, C.J., and WALLACE, J., Concur.