source: Caselaw Access Project

author: POLSTON, J.

license: Public Domain

text:
    FLORIDA ASSOCIATION OF PROFESSIONAL LOBBYISTS, INC., etc., et al. Appellants, v. DIVISION OF LEGISLATIVE INFORMATION SERVICES, etc., et al. Appellees.
    No. SC08-791.
    Supreme Court of Florida.
    March 19, 2009.

      Mark Herron, Thomas M. Findley, and Robert J. Telfer, III of Messer, Caparello and Self, P.A., Tallahassee, FL, for Appellants.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, Louis F. Hu-bener, Chief Deputy Solicitor General, Tallahassee, FL, and Kenneth W. Sukhia and David P. Healy of the Sukhia Law Group, PLC, Tallahassee, FL, for Appellees.
   POLSTON, J.

This case is before the Court for review of questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that are determinative of a cause pending in that court and for which there appears to be no controlling precedent.

Background

The instant case arose after Appellants, the Florida Association of Professional Lobbyists (“FAPL”), initiated a facial challenge of chapter 2005-359, Laws of Florida, currently codified at sections 11.045 and 112.8215, Florida Statutes (2008), which regulates and disciplines lobbyists.

The case was originally filed in circuit court, Second Circuit, Leon County, but was removed to federal district court in the Northern District of Florida. The Northern District granted summary judgment to the defendants, Division of Legislative Information Services, et al. (the “Division”), on all counts, and FAPL appealed to the Eleventh Circuit. The Eleventh Circuit affirmed the Northern District on the federal question presented and held that the Act is not unconstitutionally vague or overly broad under federal constitutional standards. Fla. Ass’n of Prof'l Lobbyists v. Div. of Legislative Info. Servs., 525 F.3d 1073, 1080-81 (11th Cir.2008). However, it also stated that “the law in Florida is not sufficiently well-established for us to determine with confidence whether the act is unconstitutional under the state’s constitution.” Id. at 1077. Consequently, it certified three questions of Florida law to this Court, specifically:

(I) WHETHER THE ACT VIOLATES FLORIDA’S SEPARATION OF POWERS DOCTRINE;
(II) WHETHER THE ACT WAS VALIDLY PASSED BY THE LEGISLATURE ACCORDING TO THE REQUIREMENTS OF THE'FLORIDA STATE CONSTITUTION; and
(III) WHETHER THE ACT INFRINGES ON THE FLORIDA SUPREME COURT’S EXCLUSIVE JURISDICTION TO REGULATE LAWYERS AND THE PRACTICE OF LAW.

The Eleventh Circuit set out the particulars of the Act as follows:

According to the Act, “no lobbyist or principal shall make, directly or indirectly, and no member or employee of the legislature,” Fla. Stat. § 11.045(4)(a) (emphasis added), nor any “agency official, member, or employee shall knowingly accept, directly or indirectly, any expenditure.” Id. § 112.3215(6)(a). [n.1] Given the use of the conjunctive “and,” the Act does not bar all lobbying expenditures; instead, it bars only those expenditures that are made for lobbying purposes and are accepted by an official.
[n.1] The term “expenditure” is defined as “a payment, distribution, loan, advance, reimbursement, deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying.” Fla. Stat. §§ 11.045(l)(d), 112.3215(l)(d).
The Act also includes a disclosure provision that requires lobbying firms to file quarterly statements reporting the total compensation paid or owed by their “principals” — that is, their clients. Id. §§ 11.045(3)(a)l.c, 112.3215(5)(a)l.c. Lobbying firms must also disclose the full name, business address, and telephone number of each principal, as well as the total compensation that each principal paid or owed to the lobbying firm. Id. §§ 11.045(3)(a)2,112.3215(5)(a)2.
In addition to the disclosure provision, the Act has enforcement provisions that allow for audits as well as for the filing of sworn complaints. Id. §§ 11.045(7)-(8), 112.3215(8)-(10). For legislative lobbying, every sworn complaint or audit indicating a possible violation (with the exception of an untimely report) is subject to investigation by designated committees of either house of the Legislature. Id. § 11.045(7). If a violation is found, the committee must report its findings, together with a recommended penalty, to either the President of the Senate or Speaker of the House, as appropriate. Id. The President of the Senate or Speaker of the House then submits the committee report and recommendation to their respective chamber; and a final determination is made by a majority vote of the members. Id. Authorized penalties include “a fine of not more than $5,000, reprimand, censure, probation, or prohibition from lobbying for a period of time not to exceed 24 months.” Id.
For executive lobbying, every sworn complaint or audit indicating a possible violation (with the exception of an untimely report) is subject to investigation by the Commission on Ethics. Id. § 112.3215(8)(a), (c). If the Commission finds probable cause of a violation, then it submits a report to the Governor and the Cabinet for a determination of the penalty. Id. § 112.3215(9), (10). Authorized penalties include reprimand, censure, or a prohibition on lobbying any agency for a period not to exceed two years. Id. § 112.3215(10). But, “[i]f the violator is a lobbying firm, the Governor and Cabinet may also assess a fine of not more than $5,000.” Id.

Fla. Ass’n of Prof'l Lobbyists v. Div. of Legislative Info. Servs., 525 F.3d 1073, 1075-76 (11th Cir.2008).

Analysis

For the following reasons, we find that the Act (I) does not violate Florida’s separation of powers doctrine; (II) was validly enacted by the Florida Legislature; and (III) does not infringe on the Florida Supreme Court’s jurisdiction to regulate lawyers or the practice of law.

I. The Act Does Not Violate Florida’s Separation of Powers Doctrine

FAPL argues that, in enacting SB 6-B and thereby giving itself the power to issue advisory opinions, investigate violations, and recommend punishment for infractions of the Act that it alone can approve, the Legislature has directly encroached on the powers of the judicial and executive branches. We disagree.

“The [separation of powers] doctrine encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. The second is that no branch may delegate to another branch its constitutionally assigned power.” Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 264 (Fla.1991) (citation omitted). Because improper delegation of powers is not implicated here, we only address the issue of encroachment.

The Florida Constitution does not explicitly prohibit any of the functions set out in the Act. Although the constitution does not give the Legislature the exclusive power to discipline lobbyists, it also does not prevent it from doing so. As this Court has noted, “the state constitution does not exhaustively list each branch’s powers.” Fla. House of Representatives v. Crist, 999 So.2d 601, 611 (Fla.2008). Rather,

the powers of the respective branches “are those so defined ... or such as are inherent or so recognized by immemorial governmental usage, and which involve the exercise of primary and independent will, discretion, and judgment, subject not to the control of another department, but only to the limitations imposed by the state and federal Constitutions.” [Each branch has] “the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the constitution.”

Id. at 611 (citation omitted) (quoting State v. Atlantic Coast Line R.R., 47 So. 969, 974 (Fla.1908); Sun Ins. Office v. Clay, 133 So.2d 735, 742 (Fla.1961)). Therefore, since the regulation, discipline, and licensing of lobbyists is not subject to the control of any branch or office, the Legislature is not prohibited from using its own discretion and judgment to accomplish the task. See State v. Palmer, 791 So.2d 1181, 1183 (Fla. 1st DCA 2001) (“[A] branch of government is prohibited from exercising a power only when that power has been constitutionally assigned exclusively to another branch; and the separation of powers doctrine does not contemplate that every governmental activity must be classified as belonging exclusively to a single branch.”). Accordingly, we answer the first question in the negative and find that the Act does not violate Florida’s separation of powers doctrine.

II. The Act Was Validly Enacted by the Florida Legislature

FAPL also claims that the Act was not validly enacted by the Legislature according to the procedural requirements of the Florida Constitution. We disagree.

Two constitutional provisions are relevant here. First, article III, section 3 provides in part that, during a special session, the only legislative business that may be transacted is that business which is within the purview of the governor’s proclamation or that which is introduced by consent of two-thirds of the membership of each house. See Art. Ill, § 3(c)(1), Fla. Const. Also relevant is article III, section 7, which provides the procedure for valid enactment of a bill. It states:

Any bill may originate in either house and after passage in one may be amended in the other. It shall be read in each house on three separate days, unless this rule is waived by two-thirds vote; provided the publication of its title in the journal of a house shall satisfy the requirement for the first reading in that house. On each reading, it shall be read by title only, unless one-third of the members present desire it read in full. On final passage, the vote of each member voting shall be entered on the journal. Passage of a bill shall require a majority vote in each house. Each bill and joint resolution passed in both houses shall be signed by the presiding officers of the respective houses and by the secretary of the senate and the clerk of the house of representatives during the session or as soon as practicable after its adjournment sine die.

Art. Ill, § 7, Fla. Const.

After reviewing the journals of both chambers, we find that all the rules and requirements for enacting a bill during special session were followed. On December 5, 2005, SB 6-B was formally introduced in the Florida Senate after it received the required two-thirds vote of the membership. It was also read for the first time. Fla. S. Jour. 2 (Spec.Sess.2005). Then, on December 7, 2005, the rules were waived and it was read for the second and third times. Thereafter, SB 6-B was passed, the vote was recorded, it was ordered engrossed, and it was certified to the House. Fla. S. Jour. 33, 42 (Spec.Sess.2005). In the Florida House, on December 5, 2005, House Bill 63-B, a bill relating to the registration and reporting requirements for lobbyists, was formally introduced after receiving the required two-thirds vote. See Fla. H.R. Jour. 3 (Spec.Sess.2005). Then, on December 8, 2005, SB 6-B was read three times in the House after the rules were waived; it was also formally introduced in the House by a two-thirds vote after the bill’s second reading; its passing vote was properly recorded in the House Journal; and it was enrolled, signed, and filed. Fla. H.R. Jour. 45 (Spec.Sess.2005); see also State v. Kaufman, 430 So.2d 904, 905 (Fla.1983) (“[W]hen enrolled, signed, and filed, acts of the legislature are prima facie valid.”).

FAPL claims that the Act was not properly enacted because SB 6-B was read twice in the House before its formal introduction and only once afterwards. It asserts that the three-readings requirement, when executed in this manner, is insufficient to satisfy the constitutional requirements for enacting legislation. We find FAPL’s argument unpersuasive because SB 6-B did not require a formal introduction in the House. Rather, since HB 63-B, a similar subject bill, had already been formally introduced in the House by the requisite two-thirds vote, no further introduction of SB 6-B was necessary because it fell within the purview of the subject matter of HB 63-B. Therefore, the passage of SB 6-B constituted the transaction of “legislative business” which was “introduced by consent of two-thirds of the membership of each house.” Art. Ill, § 3(c)(1), Fla. Const. Accordingly, we answer the second question affirmatively and find that SB 6-B was validly enacted by the Florida Legislature.

III. The Act Does Not Infringe on the Florida Supreme Court’s Jurisdiction to Regulate Lawyers or the Practice of Law

FAPL also argues that lobbying is part of the general practice of law and that the Act is unconstitutional because it regulates and disciplines lawyers who work as lobbyists and thereby encroaches on the jurisdiction of this Court. We disagree.

Section 112.3215, Florida Statutes (2008), which pertains to lobbying before the executive branch, defines “lobbies” and “lobbyist” as follows:

(f) “Lobbies” means seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement or an attempt to obtain the goodwill of an agency official or employee. “Lobbies” also means influencing or attempting to influence, on behalf of another, the Constitution Revision Commission’s action or nonaction through oral or written communication or an attempt to obtain the goodwill of a member or employee of the Constitution Revision Commission.
(h) “Lobbyist” means a person who is employed and receives payment, or who contracts for economic consideration, for the purpose of lobbying, or a person who is principally employed for governmental affairs by another person or governmental entity to lobby on behalf of that other person or governmental entity. “Lobbyist” does not include a person who is:
1. An attorney, or any person who represents a client in a judicial proceeding or in a formal administrative proceeding conducted pursuant to chapter 120 or any other formal hearing before an agency, board, commission, or authority of this state.

(Emphasis added.)

Similarly, section 11.045(l)(f), Florida Statutes (2008), defines legislative lobbying as “influencing or attempting to influence legislative action or nonaction through oral or written communications or an attempt to obtain goodwill of a member or employee of the Legislature.” See also Black’s Law Dictionary 845 (5th ed.1979) (defining “lobbying” as “[a]ll attempts including personal solicitation to induce legislators to vote in a certain way or to introduce legislation”).

On the other hand, this Court has explained that “the performance of services in representing another before the courts is the practice of law.” State ex rel. Fla. Bar v. Sperry, 140 So.2d 587, 591 (Fla.1962), vacated on other grounds, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963). Additionally, as the Act expressly acknowledges, the practice of law includes representing clients in administrative proceedings under chapter 120, Florida Statutes, and representing clients in formal hearings before agencies, boards, and commissions. See § 112.3215(l)(h)(l), Fla. Stat. (2008). The practice of law also includes “the giving of legal advice” and “the preparation of legal instruments.” Sperry, 140 So.2d at 591; see also Fla. Bar v. Neiman, 816 So.2d 587, 596 (Fla.2002).

Given the differences between the two activities, we conclude that lobbying as defined by the Act does not constitute the practice of law. Accordingly, we find that lobbyists, who may also be lawyers when engaged in lobbying activities, may be regulated and disciplined for their actions or inactions as prescribed by the Act. We also find that those regulations and disciplinary actions described in the Act do not infringe on this Court’s jurisdiction to regulate and discipline lawyers, who may also be lobbyists, in matters relating to their practice of law.

Conclusion

For the reasons stated above, we answer the first and third questions in the negative and the second question affirmatively and hold that the Act (I) does not violate Florida’s separation of powers doctrine; (II) was validly enacted by the Florida Legislature; and (III) does not infringe on the Florida Supreme Court’s jurisdiction to regulate lawyers or the practice of law.

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

      . We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

      . The challenged legislation came about through the introduction and passage of Senate Bill 6-B during the 2005 special legislative session. Hereinafter, it will be referred to as "the Act” or "SB 6-B.”

      . We need not address, and specifically do not rule on, whether the two-thirds vote with respect to SB 6-B after its second reading in the House would have been independently sufficient to satisfy the constitutional requirement.


author: PER CURIAM.

text:
    Samuel NEWBY, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-20.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Jeanine M. Germa-nowicz, Assistant Attorney General, West Palm Beach, Florida, for Respondent.
   PER CURIAM.

We have for review Newby v. State, 945 So.2d 636 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We then issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State concedes that it cannot show such cause, and petitioner Newby agrees.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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

LABARGA, J., recused.


text:
    Angel MONTERO, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-196.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

      Bill McCollum, Attorney General, Tallahassee, FL, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Montero v. State, 947 So.2d 634 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State has now supplied this Court with a Department of Corrections business-records certification contained within the appellate record, which was used during sentencing to authenticate an attached “Crime and Time Report.” See Yisrael, 993 So.2d at 960-61 (approving this authentication method); see also §§ 90.803(6), 90.902(11), Fla. Stat (2005). Further, the State has supplied a transcript of petitioner Monte-ro’s sentencing hearing, which confirms that this combined record was properly admitted and considered by the trial court in sentencing Montero as a prison-releasee reoffender. See § 775.082(9)(a), Fla. Stat. (2003).

Accordingly, we grant the petition for review and, as we did in Yisrael, approve the ultimate result reached by the Fourth District Court of Appeal below, but disapprove its reliance upon the rule expressed in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), because the business-records certification provided in this case was used as a permissible means of authenticating an attached Crime and Time Report See Yisrael, 993 So.2d at 960-61; see also Smith v. State, 990 So.2d 1162, 1164-65 (Fla. 3d DCA 2008); Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007), review denied, No. SC07-1847 (Fla. Feb. 19, 2009).

It is so ordered.

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


text:
    Christopher Lee ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-763.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia a. Terenzio, Bureau Chief, August A. Bonavita and Richard Valuntas, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Allen v. State, 951 So.2d 1035 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla. 2008), and affirmed the trial court without further elaboration. At the time that petitioner sought to invoke this Court’s discretionary jurisdiction, Yisrael was pending review. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision. However, the full appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    James Russell WARD, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-1868.
    Supreme Court of Florida.
    March 19, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief and Rolando A. Soler, Assistant Attorney General, Miami, FL, for Respondent.
   PER CURIAM.

We have for review Ward v. State, 965 So.2d 308 (Fla. 3d DCA 2007), in which the Third District Court of Appeal affirmed the admissibility of a Department of Corrections release-date letter as a permissible means of establishing the defendant’s status as a prison-releasee reoffender. See id. at 309-11. In the process, the Third District relied upon the reasoning and rule of law articulated in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified a question of great public importance. See Ward, 965 So.2d at 309-11. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Chuy v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State concedes that this case should be remanded for review pursuant to this Court’s decision in Yisrael, and petitioner Ward agrees with this concession.

Accordingly, we grant the petition for review, quash, and remand to the Third District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    Ronald CORKER, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2140.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Corker v. State, 937 So.2d 757 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. We now possess the record on appeal, which contains a Department of Corrections Crime and Time Report that was properly authenticated under seal as provided by section 90.902(1), Florida Statutes (2003). See Yisrael, 993 So.2d at 960-61 (approving this authentication method). Further, the record includes a transcript of petitioner Corker’s sentencing hearing, which confirms that this activities-based public record was properly admitted and considered by the trial court in sentencing Corker as a prison-releasee reoffender. See § 775.082(9)(a), Fla. Stat. (2002).

Accordingly, we grant the petition for review and, as we did in Yisrael, approve the ultimate result reached by the Fourth District Court of Appeal below, but disapprove its reliance upon the rule expressed in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), because the Crime and Time Report provided in this case was properly authenticated under seal. See Yisrael, 993 So.2d at 960-61.

It is so ordered.

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


text:
    Michael DENLINGER, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2247.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, Monique E. L’ltalien and Mitchell A. Eg-ber, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Delinger v. State, 944 So.2d 1072 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied on its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and affirmed the trial court without further elaboration. At the time that petitioner sought to invoke this Court’s discretionary jurisdiction, Yisrael was pending review. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision. However, the full appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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

      . Based upon the materials submitted to this Court, there is confusion concerning whether petitioner's surname is spelled "Delinger,” as reported by the Fourth District, or "Denlinger" as used by the parties. (Emphasis supplied.)


text:
    Angel RIVERA, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2291.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Rivera v. State, 939 So.2d 1197 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla. 2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State agrees that this case should be remanded for review pursuant to this Court’s decision in Yisrael.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    Vinton Alrick GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-1685.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, Jeanine Germanowicz, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Graham v. State, 964 So.2d 758 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved, in part, 993 So.2d 952 (Fla.2008). When the Fourth District decided Graham, Yisrael was already pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed proceedings in this ease pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision. However, the full appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    Eric ACOSTA, etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC07-1030.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, Susan D. Cline, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Acosta v. State, 956 So.2d 1235 (Fla. 4th DCA 2007), a factually unelaborated decision in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008). When the Fourth District decided Acosta, Yisrael was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision. However, the full appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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

LABARGA, J., recused.


text:
    Lakeary HECK, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-2132.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, August A. Bonavita, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Heck v. State, 966 So.2d 515 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision.

Our review of the facts presented within the four corners of the decision below reveals that the Fourth District addressed a “Certification of Records,” which was submitted along with “the accompanying pages of DOC computer pnnt-outs to establish the predicates for [prison-releasee-reoffender] sentencing.” 966 So.2d at 518 (emphasis supplied). The method used to establish Heck’s status as a prison-releas-ee reoffender thus complied with the analysis provided by the First District in Desue v. State, 908 So.2d 1116, 1117 (Fla. 1st DCA 2005), Gray, 910 So.2d at 869-70, and Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007), review denied, No. SC07-1847, 1 So.3d 173, 2009 WL 427313 (Fla. Feb. 19, 2009), each of which was decided prior to Heck. As a result, in Heck, there was no need to certify conflict.

Accordingly, we grant the petition for review and, as we did in Yisrael, approve the ultimate result reached by the Fourth District Court of Appeal below, but disapprove its reliance upon the rule expressed in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), because the business-records certification provided in this case was used as a permissible means of authenticating an attached Crime and Time Report. See Yisrael, 993 So.2d at 960-61; see also Smith v. State, 990 So.2d 1162, 1164-65 (Fla. 3d DCA 2008); Parker, 973 So.2d at 1168-69.

It is so ordered.

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


text:
    Rudolph VITTORIO, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-2133.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Vittorio v. State, 967 So.2d 434 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision. However, the appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    David L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2333.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, and James J. Carney, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Brown v. State, 940 So.2d 500 (Fla. 4th DCA 2006), an unelabo-rated decision in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008). When the Fourth District’s decision in Brown became final, Yisrael was already pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts several record-based substantive contentions and urges that this Court deny review. However, the full appellate record is not before us, and the Fourth District is the proper tribunal in which to present these fact-based contentions.

This Court has disapproved in part the very opinion upon which the district court relied below. Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    Alexander PERKINS, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2336.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, Marcy K. Allen and Margaret Good-Earnest, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Perkins v. State, 939 So.2d 1113 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008). When the Fourth District’s decision in Perkins became final, Yisrael was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State agrees that this case should be remanded for review pursuant to this Court’s decision in Yisrael.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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

LABARGA, J., recused.


text:
    David RAY, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2385.
    Supreme Court of Florida.
    March 19, 2009.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Ray v. State, 941 So.2d 569 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla. 2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael The State has now supplied this Court with a Department of Corrections business-records certification contained within the appellate record, which was used during sentencing to authenticate an attached “Crime and Time Report.” See Yisrael, 993 So.2d at 960-61 (approving this authentication method); see also §§ 90.803(6), 90.902(11), Fla. Stat (2005). Further, petitioner Ray concedes this point.

Accordingly, we grant the petition for review and, as we did in Yisrael, approve the ultimate result reached by the Fourth District Court of Appeal below, but disapprove its reliance upon the rule expressed in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), because the business-records certification provided in this case was used as a permissible means of authenticating an attached Crime and Time Report. See Yisrael, 993 So.2d at 960-61; see also Smith v. State, 990 So.2d 1162, 1164-65 (Fla. 3d DCA 2008); Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007), review denied, No. SC07-1847 (Fla. Feb. 19, 2009).

It is so ordered.

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


text:
    James INGRAM, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2469.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Ingram v. State, 943 So.2d 325 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision. However, the full appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    James Clifford JERRY, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-2515.
    Supreme Court of Florida.
    March 19, 2009.

      James Clifford Jerry, Pro se, Belle Glades, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Jerry v. State, 943 So.2d 941 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla.2008), and certified conflict with the First District’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. In response, the State asserts that documents submitted during sentencing complied with this Court’s Yisrael decision, which is contested by the petitioner. However, the full appellate record is not before the Court, and the Fourth District is a more appropriate forum in which to raise these factual contentions that were not addressed within the four corners of the district court’s opinion below.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    Robert Wayne MURRAY, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-2355.
    Supreme Court of Florida.
    March 19, 2009.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Melynda L. Melear, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Murray v. State, 969 So.2d 1184 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal relied upon its decision in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So.2d 952 (Fla. 2008), and certified conflict with the First District Court of Appeal’s decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District in Gray, and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008). We subsequently issued an order directing the State to show cause why we should not exercise jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State agrees that this case should be remanded for review pursuant to our decision in Yis-rael.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

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


text:
    Robert Lee ROWLES, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-1072.
    Supreme Court of Florida.
    April 9, 2009.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review Rowles v. State, 954 So.2d 1278 (Fla. 5th DCA 2007), in which the Fifth District Court of Appeal cited as authority its decision in Moore v. State, 909 So.2d 500 (Fla. 5th DCA 2005), notice invoking discretionary review filed, No. SC05-1779 (Fla. Sept. 28, 2005). At the time the Fifth District issued its decision in Rowles, its Moore decision was, and still is, pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of Larimore v. State, 2 So.3d 101 (Fla.2008). When our decision in Larimore became final, we issued an order directing respondent in the present case to show cause why we should not accept jurisdiction, quash the decision under review, and remand for reconsideration in light of our decision in Larimore. Respondent in its response agrees we should so proceed.

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

It is so ordered.

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

PERRY, J., did not participate.


text:
    A.T., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC08-1159.
    Supreme Court of Florida.
    April 16, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and Sue-Ellen Kenny, Assistant Attorneys General, West Palm Beach, Florida, for Respondent.
   PER CURIAM.

We have for review A.T. v. State, 983 So.2d 679 (Fla. 4th DCA 2008), in which the Fourth District Court of Appeal cited as authority its decision in E.A.R. v. State, 975 So.2d 610 (Fla. 4th DCA 2008), quashed, 4 So.3d 614 (Fla.2009). At the time the Fourth District issued its decision in A.T., EA.R. was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of E.A.R. v. State, 4 So.3d 614 (Fla.2009), in which we ultimately quashed the Fourth District’s underlying E.A.R. decision and explicitly disapproved its decision in A.T. Now, as AT. is on direct review, we have determined to correspondingly quash the Fourth District’s underlying AY. decision.

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

It is so ordered.

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

CANADY, J., dissents.


author: PER CURIAM. ROTHENBERG, J.

text:
    Robin Taylor SYMONS, et al., Appellants/Petitioners, v. Ralph W. SYMONS, Appellee/Respondent.
    No. 3D08-2207.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2008.
    As Amended on Clarification March 11, 2009.
    Rehearing and Rehearing En Banc Denied May 19, 2009.
    Paul Morris and Gerald I. Kornreich, Miami, for petitioners.
    David B. Mitchell, Coral Gables and Karen J. Haas, Miami, for respondent.
    Before GERSTEN, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   Upon consideration, petitioners’ motion for immediate issuance of order to show cause as to why petition for writ of prohibition should not be granted; alternatively, motion to expedite is hereby denied.

Following review of the petition for writ of prohibition and the response and reply thereto, it is ordered that said petition is hereby denied without prejudice.

GERSTEN, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge, concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

Upon consideration of the petitioners’ motion for clarification, the second paragraph of this Court’s September 22, 2008 order is amended by striking the words “without prejudice” so that the second paragraph provides: “Following review of the petition for writ of prohibition and the response and reply thereto, it is ordered that said petition is hereby denied.”

The motion for clarification is otherwise denied.

GERSTEN, C.J., and SCHWARTZ, Senior Judge, concur.

ROTHENBERG, J.

(dissenting).

This ease came before this Court via a petition for writ of prohibition or mandamus filed by: (1) Robin Taylor Symons, the former wife and mother of the parties’ minor child (“the mother”), and (2) Sherry and Robert Taylor, the maternal grandparents of the minor child (“the grandparents”). The respondent, Ralph W. Sym-ons, is the former husband and the father of the parties’ minor child (“the father”). The underlying action from which this petition was spawn is the dissolution of the father and the mother’s (collectively, “the parties”) marriage.

On September 22, 2008, this Court denied the petition without prejudice. Thereafter, the petitioners filed a motion for clarification, which has now been denied by my esteemed colleagues. For the reasons that follow, I would withdraw the previous order of this Court denying the petition; grant the petition; and quash the order under review.

On May 22, 2007, the trial court entered an order accepting the parties’ stipulation regarding the custody of their minor child in which the parties agreed to joint custody with equal time sharing. On September 27, 2007, the trial court entered its amended final judgment for dissolution of marriage, incorporating the parties’ custody stipulation.

On May 8, 2008, the father filed a “motion to enforce” the “Shared Parental Responsibility; Joint Residential Responsibility” provisions of the parties’ custody stipulation. In conjunction with the motion to enforce, the father subpoenaed the grandparents for deposition. The mother objected to these depositions. After an adverse ruling by the trial court, the mother filed a motion for rehearing, arguing that the father’s motion to enforce was in reality a request to modify the amended final judgment, and therefore, the father was required to file a petition seeking modification in compliance with Florida Family Law Rule of Procedure 12.110, and Florida Rule of Civil Procedure 1.110, and to demonstrate a substantial change in circumstances warranting modification. The motion for rehearing was denied.

The mother filed the instant petition with this Court seeking a writ of prohibition arguing that: (1) the father’s motion to enforce was requesting a modification of the amended final judgment, and that pursuant to rule 12.110, “proceedings to modify a final judgment in a family law matter shall be initiated pursuant to rule 1.110(h) and not by motion”; (2) the trial court lacks jurisdiction to modify the amended final judgment as the father’s request to modify was not initiated pursuant to rule 1.110(h); and (3) thus, the trial court acted outside of its jurisdiction in entertaining the father’s motion and by requiring the grandparents to comply with the subpoenas for deposition in furtherance of the father’s motion. The mother’s objections are well-taken.

While the mother’s arguments are persuasive, a writ of prohibition is not the appropriate mechanism to address the order under review. Prohibition is a remedy to prevent judges (and officers of lower tribunals or administrative agencies acting in a quasi-judicial capacity) from acting outside of their jurisdiction or exceeding their power over the matter. Because a writ of prohibition is preventive, it is generally directed to prevent future action rather than to correct or prevent the enforcement of orders already entered. See Sparkman v. McClure, 498 So.2d 892 (Fla.1986); SKFW Mgmt. Corp. v. Dep’t of Revenue, 867 So.2d 1232 (Fla. 5th DCA 2004). A writ of prohibition should not be issued unless the reviewing court determines that: (1) the lower tribunal is acting without jurisdiction or in excess of its jurisdiction; (2) the writ seeks to prevent action, not correct it; (3) the action the writ seeks to prevent will cause injury to the petitioner; and (4) the petitioner has no other adequate legal remedy. English v. McCrary, 348 So.2d 293 (Fla.1977).

Because the petitioner in the instant case seeks a writ to prohibit the enforcement of an order already issued by the trial court, certiorari is the proper remedy, not prohibition. Where a party improperly files a petition for writ of prohibition, an appellate court may treat the petition as a petition for writ of certiorari as long as the petition was filed within thirty days of rendition of the order under review. See Daniel v. Garrison, 894 So.2d 308 (Fla. 3d DCA 2005); N. Shore Med. Ctr. v. Capua, 634 So.2d 1141 (Fla. 3d DCA 1994); Maliska v. Broome, 609 So.2d 711 (Fla. 4th DCA 1992). Because the order under review was entered on August 21, 2008, and the petition was filed on August 28, 2008, I would exercise this Court’s discretion and treat the mother’s petition for a writ of prohibition as a timely filed petition for a writ of certiorari.

Certiorari may be granted where the order under review is a departure from the essential requirements of law that will cause material harm which cannot be remedied on appeal. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); Sabol v. Bennett, 672 So.2d 93 (Fla. 3d DCA 1996). The petitioners have satisfied the first requirement as the order under review is a departure from the essential requirements of the law. Because the father was, in effect, seeking a modification of the amended final judgment, the trial court lacked subject matter jurisdiction to entertain the father’s “motion” and to permit him to depose the grandparents in furtherance of his motion. See Pomeranz v. Pomeranz, 961 So.2d 1068, 1070 (Fla. 4th DCA 2007) (holding that although the former wife filed a motion to compel, in effect, the motion sought modification of the final judgment, thus the trial court lacked subject matter jurisdiction absent a petition for modification); Braswell v. Braswell, 935 So.2d 604, 606 (Fla. 3d DCA 2006) (holding that Florida law unequivocally requires that post-dissolution modifications of custody must be requested in the form of a petition asserting a change in circumstances). Hagins v. McNeal, 647 So.2d 1052, 1053 (Fla. 5th DCA 1994) (holding that where petitioner was seeking a change in the status quo, she was not seeking enforcement, but rather a modification of the final judgment, which required the trial court to consider a change in circumstances by way of a petition for modification).

To permit the father to depose the grandparent in light of the circumstances in this case constitutes irreparable harm which cannot be remedied on direct appeal. Because the order under review departs from the essential requirements of law and constitutes irreparable harm which cannot be remedied on direct appeal, I would grant certiorari, and therefore, respectfully dissent from the contrary ruling by the majority.


text:
    James D. CHILDS, Appellant, v. David HERRARA; Accredited Home Lenders, Inc. as successor by merger to Aames Funding Corp. d/b/a Aames Home Loan; Theresa P. Childs/Koenig, Appellees.
    No. 1D08-5651.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2009.
    James D. Childs, pro se, for Appellant.
    Candyce King of King & Dolaghan, P.A., Jacksonville, for Appellees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b), 9.130(b). This dismissal is without prejudice to any right the appellant may have to obtain relief in the circuit court. See Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983); Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004).

BARFIELD, ALLEN, and THOMAS, JJ., concur.


text:
    J.B., II, father of J.B. and J.B., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D08-4302.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2009.
    Patricia L. Parker of Parker and Du-Fresne, P.A., Jacksonville, for Appellant.
    Lori Lee Fehr, Department of Children and Families, Pensacola, for Appellee.
   PER CURIAM.

Upon the Department of Children and Families’ proper concession of error, the final judgment for termination of parental rights is hereby quashed. This case is remanded to the lower tribunal for adjudication of the petition to terminate parental rights as permitted by the Florida Rules of Juvenile Procedure and Florida Statutes.

WOLF, LEWIS, and ROBERTS, JJ., concur.


text:
    Jermaine RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3503.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2009.
    Rehearing Denied April 27, 2009.
    William R. Ponall and Michael J. Snure, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We conclude that Appellant’s challenge to the erroneous verdict form was not preserved and was invited. Morris v. State, 658 So.2d 155 (Fla. 1st DCA 1995). The Fourth District’s decision in Wilson v. State, 566 So.2d 36 (Fla. 4th DCA 1990), is distinguished in that it did not address an unpreserved, invited error. This Court’s decision in Mashburn v. State, 745 So.2d 453 (Fla. 5th DCA 1999), likewise did not address an invited error. It addressed the State’s failure to include on the verdict form a special finding required to enhance the defendant’s penalty. Unlike this case, the State had the burden to procure the special finding.

We affirm as to the other points on appeal without discussion.

AFFIRMED.

PALMER, C.J., TORPY and EVANDER, JJ., concur.


text:
    Kevin RICH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0484.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Rehearing Denied May 1, 2009.
    Kevin Rich, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

BARFIELD, THOMAS, and CLARK, JJ., concur.


author: LAWSON, J.

text:
    Jeffrey Wayne MOSELEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1113.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2009.

      Jeffrey W. Moseley, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Jeffrey Wayne Moseley appeals the summary denial of his motion for postcon-viction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. The motion presented thirteen claims, all of which were thoroughly addressed in the trial court’s well-reasoned thirty-page denial order, with the denials supported by record attachments where appropriate. We affirm the trial court’s order as to all claims, and find that the only issue meriting discussion is Moseley’s claim that he was convicted of an uncharged crime.

Background

On September 22, 2003, K.B., a minor student at Belleview High School in Marion County, Florida, reported to her school counselor that she had engaged in sex with Moseley. She also reported that her fourteen-year-old cousin, S.F., was involved in a sexual relationship with Moseley at the time. Moseley was forty-two years old. A report was made to law enforcement, which led to Moseley’s arrest on a single charge of unlawful sexual activity with K.B. Moseley made bail shortly after his arrest on this charge, after which he continued his relationship with S.F., while living in the home with S.F. and her mother.

On April 19, 2004, the Department of Children and Families removed S.F. from her mother’s custody, after the mother admitted to police that she was aware of the sexual affair between her daughter and Moseley, and had still allowed Moseley to stay in the home. The Department placed S.F. with an aunt, and Moseley was arrested for the sexual battery of S.F. He again made bail, and again continued his relationship with S.F., taking her from her aunt’s custody and absconding with her to Las Vegas, Nevada, and then back to Florida, where he was eventually apprehended (with S.F.) at his sister’s home in Dania Beach. The State then amended its information, adding a charge of interfering with child custody in violation of section 787.03, Florida Statutes (2003).

That statute contains two relevant subsections. In pertinent part, section 787.03(1) makes it unlawful for any person to take a child from the custody of his or her parents or lawful custodian, absent lawful authority to do so. Section 787.03(2), in relevant part, makes it unlawful for any parent or lawful custodian of a child, to take the child with malicious intent to deprive another parent or lawful custodian of that person’s legal right to custody of the child. Moseley is unrelated to S.F., and was clearly not her legal custodian. Therefore, subsection (2) had no application to this case. However, Moseley clearly violated subsection (1) by taking S.F. from her aunt, who had lawful custody of S.F. at the time.

Inexplicably, the State’s amended information in the case charged Moseley with violating subsection (2), and no one appears to have caught the error. Instead, all parties and the court simply assumed that Moseley was being prosecuted under subsection (1). Moseley never objected to the defect in the information, and the information was never amended. The jury was instructed on the elements of the crime outlined in subsection (1), and Moseley was convicted of that charge. In essence, Moseley was charged with violating section 787.03(2), but was convicted of violating section 787.03(1). Citing to the general rule that due process is violated when an individual is convicted of an uncharged crime, Moseley claims that he is entitled to postconviction relief.

Analysis

Moseley is correct that as a general rule “due process is violated when an individual is convicted of a crime not charged in the charging instrument.” Castillo v. State, 929 So.2d 1180, 1181 (Fla. 4th DCA 2006) (citations omitted). However, “technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case.” Id. (citing McMillan v. State, 832 So.2d 946, 948 (Fla. 5th DCA 2002)). With respect to untimely challenges to technical deficiencies in the information or indictment, Florida courts have consistently held that a defendant is not entitled to relief: “ ‘(1) where a statutory citation for the crime is given, but all elements are not properly charged, or (2) where the wrong or no statutory citation is given, but all elements of the crime are properly charged.’ ” Id. (quoting State v. Burnette, 881 So.2d 693, 695 (Fla. 1st DCA 2004) and also citing Cuevas v. State, 770 So.2d 703, 705 (Fla. 4th DCA 2000)).

In this case, although the information alleged the wrong subsection, it also alleged that Moseley did “unlawfully take, detain, conceal or entice away” S.F. “a child 17 years of age or under” from her aunt with the “intent to deprive [the aunt] of a right to custody of said child.... ” Although the language of the information does not track subsection (1) perfectly, it does allege all essential elements of the crime for which Moseley was convicted, and therefore withstands Moseley’s untimely challenge. Id. Ultimately, the “ ‘test for granting relief based on a defect in the charging document is actual prejudice to the fairness of the trial.’ ” Id. (quoting State v. Gray, 435 So.2d 816, 818 (Fla.1983)). In this case, it is clear that Moseley suffered no actual prejudice. Rather, he defended the case at all stages of the proceeding, through verdict and appeal, under the assumption that he had been charged pursuant to subsection (1) of the statute, since he was not a parent or lawful guardian of the child. It would be contrary to the ultimate aim of justice to allow Moseley to now escape the consequences of his crime by belatedly objecting to a technical defect in the information that could have been easily corrected if the objection had been timely raised.

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

      . The conviction was affirmed on appeal. See Moseley v. State, 939 So.2d 1077 (Fla. 5th DCA 2006).


author: VAN NORTWICK, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant/Cross Appellee, v. James MALLETT and Martha Mallett, Appellees/Cross Appellants.
    No. 1D07-5262.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    Rehearing Denied May 4, 2009.

      G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville; and John A. Unzicker of Vernis & Bowling, Pensacola, for Appellant/Cross Appellee.
    Corinne L. Heller, Jacksonville; and T. Harrison Duke, Gulf Breeze, for Appel-lees/Cross Appellants.
   VAN NORTWICK, J.

Citizens Property Insurance Corporation appeals a final summary judgment entered in favor of James Mallett and Martha Mallett, appellees, which orders Citizens to pay the full policy limits of the homeowner’s insurance policy issued to the Malletts. The Malletts cross-appeal, arguing that the trial court erred in awarding prejudgment interest from the date of partial summary judgment, rather than the date the covered property was damaged by a hurricane. For the reasons that follow, we reverse the issues raised on appeal and affirm the issues raised on cross-appeal.

Hurricane Ivan struck Pensacola on September 16, 2004, causing substantial damage to the area. The residence owned by the Malletts suffered extensive damage from wind and water. The policy issued by Citizens did not cover water damage, although the Malletts did possess separate flood insurance and recovered $244,745.95 for water damage under that policy. The policy issued by Citizens listed the value of the Malletts’ residence at $561,000. Citizens determined that the Malletts’ residence sustained wind damage totaling $182,279.95 and paid the Malletts that amount.

The Malletts filed suit seeking payment of the full amount of the insured value of the property, arguing that they sustained a “constructive total loss” since the local government, the Santa Rosa Island Authority, had found the damage to the property to exceed fifty percent of its value. Citizens denied any additional liability and raised several affirmative defenses. The Malletts moved for summary judgment on the claim for the total policy limit as well as them claim for damages for coverage under the debris removal clause and the so-called “law and ordinance” clause of the policy. After a hearing, the trial court granted summary judgment in favor of the Malletts on two of their three claims. The trial court explained:

Taking all of the above, this Court finds that [the Malletts’] home was substantially damaged by the peril of wind.... The Valued Policy Law and the Mierz-iva decision hold that when a property is rendered total loss and the insurer is liable under the insurance policy to pay any amount, it is liable for the full policy limit. In this case, [the Malletts] have further shown that substantial damage was reached by damage attributable to wind alone. [Citizens has] not submitted any evidence to the contrary.

In granting summary judgment, the trial court relied heavily on Mierzwa v. Florida Windstorm Underwriting Ass’n, 877 So.2d 774 (Fla. 4th DCA 2004), in which the District Court held that, under the Valued Policy Law (VPL), section 627.702(1), Florida Statutes, an insurer must pay the face amount of a policy if the insurer is liable for any damage caused by a covered peril and if the insureds premises is deemed a total loss. 877 So.2d at 775-76. In Florida Farm Bureau Casualty Insurance Company v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006), this court accepted the reasoning of Mierztva and held that an insurer is liable for the total loss of a home even when the total loss cannot be wholly attributed to a covered peril. We certified the following question of great public importance to the Florida Supreme Court:

Does section 627.702(1), Florida Statutes (2004), referred to as the valued policy law, require an insurance carrier to pay the face amount of the policy to an owner of a building deemed a total loss when the building is damaged in part by a covered peril but is significantly damaged by an excluded peril?

Id. at 847.

The Supreme Court answered the certified question in the negative, quashed the Cox decision, and disapproved the decision in Mierzwa. Florida Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007). The Supreme Court explained:

Contrary to the conclusion of the district court, we do not find that the plain language of the [VPL] statute intends that if a covered peril causes part of a total loss, that the insurer is mandated to pay for the total loss. Of particular importance, the VPL does not mention causation. Section 627.702 does not establish any requirement for an insurer to pay for excluded or noncovered perils. We read the plain language of the statute not to reasonably support such an interpretation. The beginning phrase states: “In the event of the total loss ... as to a covered peril.... ” § 627.702(1), Fla. Stat. (2004) (emphasis added). Throughout section 627.702(1), the Legislature repeatedly relies upon the terms of the parties’ insurance contract and discusses only covered perils. Section 627.702(1) explicitly states that “[i]n the event of the total loss of any building ... insured by any insurer as to a covered peril ..., the insurers liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which, a premium has been charged and, paid.” § 627.702(1), Fla. Stat. (2004).

Id. at 820 (italics in original); see also Citizens Prop. Ins. Corp. v. Ueberschaer, 979 So.2d 929 (Fla.2008). The summary judgment on appeal is expressly contrary to the holding in Cox, and accordingly, we reverse that part of the summary judgment granting the Malletts additional compensation for the damage sustained to their residence not solely attributable to wind. See also Citizens Prop. Ins. Corp. v. Manning, 966 So.2d 486 (Fla. 1st DCA 2007).

The trial court here also ruled that the Malletts were entitled to $23,144.08 under the supplemental provision of the policy which provided coverage for debris removal. On appeal, Citizens argues that the record does not establish that such an amount is attributable to the removal of debris caused by wind. In response, the Malletts argue that if their residence is deemed a constructive total loss as a result of wind alone, then the amount awarded for the debris removal coverage as well as for coverage under the law and ordinance provision must be affirmed.

At the summary judgment stage, a trial court is to enter a judgment only when no issues of fact remain. See Cohen v. Vining, 917 So.2d 1013 (Fla. 1st DCA 2006). The standard of review regarding the grant of final summary judgment is de novo. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082 (Fla.2005). Here, because the record before us does not exclusively establish that the debris removal costs were attributable solely to wind, a question of fact remains as to how much Citizens is obliged to pay under the debris removal coverage. See Ceballo v. Citizens Prop. Ins. Corp., 967 So.2d 811, 815 (Fla. 2007)(“the VPL does not mandate the payment of the policy limits of the additional coverage without proof of loss where the unambiguous language of the policy requires such proof’).

Similarly, the trial court held the Malletts were entitled to $140,250 under the law and ordinance provision of the policy, although the trial court acknowledged in the final summary judgment that Citizens did not agree that the Malletts were entitled to an award under this provision. Again, as the Supreme Court explained in Ceballo, payment of the policy limits is not required without proof of loss where the unambiguous language of the policy requires such proof. 967 So.2d at 815. Because the record before us does not exclusively establish that the costs required to bring the residence into compliance with the applicable building code were attributable solely to wind, Ceballo, a question of fact remains as to the amount Citizens is obliged to pay under this provision; we therefore remand for resolution of this material issue of fact.

On cross-appeal, the Malletts argue that the trial court erred in awarding prejudgment interest as of the date of the partial summary judgment rather than from the date their residence was damaged by the hurricane, September 16, 2004. As to the award of prejudgment of interest under Coverage A, the cross-appeal is moot given our recognition that Cox precludes an award beyond what has already been paid by Citizens. As for the amount awarded by the trial court under the supplemental policy provisions, we find no error. The policy issued to the Mal-letts provides that Citizens was not obliged to pay a claim for debris removal or law and ordinance coverage until twenty days after it reached a written agreement with the Malletts, or sixty days after entry of a final judgment on the claim or after the filing of an appraisal award or mediation settlement with Citizens. It is the terms of a contract for insurance which determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable. See Lumbermens Mut. Cas. Co. v. Percefull, 653 So.2d 389 (Fla.1995).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

HAWKES, C.J., concurs, and BENTON, J., concurs in judgment.

      . The law and ordinance coverage under the policy provides reimbursement for up to 25% of dwelling policy limits for increased repairs and replacement costs incurred by the insured to comply with requirements of the applicable laws and ordinances regulating construction or repair of property. See, e.g., § 627.7011(1)(b), Fla. Stat. (2004).

      . After Mierzwa was decided, the Florida Legislature amended the VPL to expressly provide that when a loss is caused in part by a covered peril, the insurer's liability is limited to the amount of the loss attributable to the covered peril. § 627.702(l)(b), Fla. Stat. (2005).


text:
    SUNBELT HEALTH CARE & Subacute Center-Apopka and AHS, Appellants, v. Dominga GALVA, Appellee.
    No. 1D08-1336.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.

      John M. Crotty and Eric R. Eide of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellants.
    Richard Zaldivar of Richard Zaldivar, P.A., and Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the employer and carrier challenge an order of the judge of compensation claims granting claimant’s request for a “one-time” alternate orthopedist pursuant to section 440.13(2)(f), Florida Statutes (2006). The employer and carrier contend that claimant previously exercised her right to a change in physician while under a managed care arrangement, and is not entitled to a second. We agree, and reverse. Because of this disposition, it is unnecessary for us to address the remaining issues raised by the employer and carrier.

Background

On August 20, 2003, claimant suffered injuries to her wrist, shoulder, hip and back. Claimant’s employer initially provided medical care pursuant to a managed care arrangement as authorized by section 440.134(2)(a), Florida Statutes (2002). Authorized care was furnished by three orthopedists, each treating a different body part, and all affiliated with the same clinic.

On October 8, 2003, claimant filed a petition for benefits, seeking an “alternate orthopedic physician” because she was dissatisfied with the care she was receiving. In response, the lawyer for the employer and carrier wrote a letter to claimant’s lawyer offering a list of network providers from which claimant could choose a onetime change in physician. Shortly thereafter, it became clear that the lawyer for the employer and carrier believed claimant had chosen Dr. Macksoud (a hand specialist in the same clinic as the other providers) as her alternate orthopedist.

The lawyer for the employer and carrier confirmed claimant’s choice of Dr. Mack-soud by multiple letters to claimant’s lawyer. On one occasion, the former asked whether claimant’s choice of Dr. Macksoud was her choice of an independent medical examiner, or her one-time change in physician. Within three days, the lawyer received a return facsimile of his letter containing the aforementioned inquiry with a handwritten note upon it stating: “Mack-soud is alt. ortho[.] Thanks,” along with an indecipherable signature. Thereafter, the employer and carrier, in seven separate writings, confirmed claimant’s choice of Dr. Macksoud as her one-time change in doctor. Claimant began treatment (which included surgery) with Dr. Macksoud in December 2003, and continued to treat with him for four' years.

On January 1, 2006, the employer and carrier discontinued them managed care arrangement as permitted by section 440.134(2)(a), Florida Statutes (2005). Claimant then filed a petition for benefits seeking an alternate doctor to replace Dr. Macksoud because she was not satisfied with his treatment. The employer and carrier responded that claimant had used her one-time change in physician when she selected Dr. Macksoud.

The parties attended a merits hearing and, for the first time, claimant asserted that the transfer of care to Dr. Macksoud did not count as her one-time change in physician, because he was professionally affiliated with the other orthopedists with whom she had treated. At the hearing, the numerous letters confirming claimant’s selection of Dr. Macksoud were introduced into evidence. The judge excluded the handwritten note based on claimant’s authenticity objection. He subsequently entered an order granting claimant’s request for a one-time change in physician pursuant to section 440.13(2)(f), Florida Statutes (2006). According to the judge, section 440.13(2)(f) requires a carrier to authorize an alternate physician who is not professionally affiliated with the prior treating physician, and claimant did not (and could not) waive that requirement.

In the order, the judge explained that he had excluded the handwritten note purportedly authored by claimant’s lawyer because there was no direct evidence establishing claimant’s lawyer had written the note. The judge failed, however, to address the circumstantial evidence pointing to claimant’s lawyer (or someone in his office) as the author of the handwritten note. The judge also found the handwritten note was subject to various interpretations including a possible assertion that claimant was selecting Dr. Macksoud as her “second opinion.”

Evidence Supporting Claimant’s Selection

The requirements of the evidence code are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See § 90.901, Fla. Stat. (2007). The use of circumstantial evidence to authenticate is permissible. Charles W. Ehrhardt, Florida Evidence, § 901.5 (2007 ed.). Authentication occurs in a situation where the offered item, considered in light of the circumstances, logically indicates the personal connection sought to be proved. Id. Pursuant to the “reply letter” doctrine, a letter can be authenticated upon a showing that it was “apparently in reply” to an earlier letter sent to the purported author of the reply letter. Atlas Subsid. of Fla. Inc. v. O. & O. Inc., 166 So.2d 458 (Fla. 1st DCA 1964). Once a prima facie case of authenticity has been established, the document is authenticated, and the trier of fact must resolve any disputes regarding the genuineness of the exhibit. Pace v. State, 854 So.2d 167 (Fla.2003).

Here, the judge failed to appreciate the distinction between the admissibility of the handwritten note and the ultimate finding regarding its genuineness. Although the judge found the handwritten note was “clearly received” by the lawyer for the employer and carrier, he excluded it because no one testified that the handwriting was that of claimant’s lawyer. The handwritten response appears to be a direct reply (as indicated by its timing, content and unique location) to the request by the lawyer for the employer and carrier to claimant’s lawyer for clarification. Moreover, the circumstantial evidence establishes a sufficient logical connection between claimant’s lawyer and the handwritten note to permit the admission of the document into evidence. This circumstantial evidence includes a petition for benefits requesting an alternate orthopedist, seven written confirmations of claimant’s selection of Dr. Macksoud as her choice of her one-time change in orthopedist (and the lack of any objections to, or rebuttal of, such assertions), medical records establishing treatment by Dr. Macksoud and claimant’s testimony that Dr. Macksoud had taken over her orthopedic care. The judge abused his discretion by excluding the handwritten note from evidence, and by failing to weigh the circumstantial evidence to make a finding whether claimant chose Dr. Macksoud as her alternate orthopedist.

Managed Care

We next address a question of first impression: whether the discontinuation of a managed care plan (which is legally permissible regardless of the date of accident) creates additional substantive rights for those claimants who have received benefits prior to the cessation of the plan. For the reasons that follow, we hold that when a claimant receives, pursuant to a managed care arrangement, the substantial equivalent of a benefit otherwise available pursuant to Florida workers’ compensation law, she has received all to which she is legally entitled.

Under Florida worker’s compensation law, an employer and carrier may elect to deliver medical benefits by an approved managed care arrangement. See § 440.134(2)(a), Fla. Stat. (2002). When they do so, workers subject to the managed care arrangement must receive medical services for work-related injuries as prescribed in the contract. See § 440.134(17), Fla. Stat. (2002). An alternative means of providing benefits under Florida workers’ compensation law does not require identical procedures. See Gassner v. Bechtel Constr., 702 So.2d 548, 552 (Fla. 1st DCA 1997) (holding that a collective bargaining agreement’s lack of a provision for an independent medical examination and choice of doctor did not diminish substantive benefits a claimant was entitled to under Florida workers’ compensation law).

Under the managed care statute, the managed care plan must include a provision for the employee’s selection of a primary care provider, one change to another provider, and one second opinion within the same specialty and provider network as the treating physician. See §§ 440.134(10)(c), 440.134(6)(c) 9-10, Fla. Stat. (2002). Here, under the operable managed care arrangement, claimant could choose her alternate physician from a network provider list.

A similar and parallel provision operating outside the managed care arrangement also affords a claimant the right to a change in treating physician. See § 440.13(2)(f), Fla. Stat. (2003). However, pursuant to that provision, the employer and carrier have the right to select the alternate physician, as long as he or she is not professionally affiliated with the previous physician. See id.; see also Butler v. Bay Center/Chubb Ins. Co., 947 So.2d 570, 573 (Fla. 1st DCA 2006).

The right to change physicians pursuant to section 440.13(2)(f) is not without limitations. See Butler, 947 So.2d at 573. “[T]he language of the statute plainly indicates a claimant may request a change of treating physician only once, no matter the number and variety of treatments needed by a claimant arising from the original accident.” Id. (emphasis in original). The means by which an alternate treating physician is selected pursuant to section 440.13(2)(f) is a procedural right. Id. (holding that prior versions of the statute governing the means of identifying the physicians with whom a claimant could seek alternate care were procedural enactments).

As we held in Butler, the benefit provided in section 440.13(2)(f) is a claimant-initiated, one-time change of physician, the substantial equivalent of which claimant in this case received by selecting Dr. Macksoud. The means of identifying and selecting the alternate physician — i.e., whether by claimant’s choice (managed care), or by the employer and carrier pursuant to section 440.13(2)(f) — is a procedural mechanism in which a claimant has no vested substantive right.

Because claimant received the substantial equivalent of the change in physician contemplated by section 440.13(2)(f), Florida Statutes (2006), while she was under the managed care arrangement, there is no legal basis to award a “second” one-time change in orthopedic physicians.

For the foregoing reasons, the order is reversed and the ease is remanded with instructions that the judge consider the handwritten note and the circumstantial evidence and make a factual finding as to whether claimant chose Dr. Macksoud as her one-time change in physician. If the answer is in the affirmative, the request for an additional one-time change should be denied.

REVERSED and REMANDED, with directions.

WEBSTER, BROWNING, and LEWIS, JJ., concur.