source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    Myriam AMPUERO-MARTINEZ, etc., Petitioner, v. CEDARS HEALTHCARE GROUP, etc., Respondent. Cedars Healthcare Group, etc., Respondent/Cross-Petitioner, v. Myriam Ampuero-Martinez, etc., Petitioner/Cross-Respondent.
    Nos. SC11-2208, SC11-2336.
    Supreme Court of Florida.
    Jan. 30, 2014.
    Lincoln J. Connolly of Rossman, Baum-berger, Reboso, Spier & Connolly, P.A., Miami, FL, for Petitioner/Cross-Respondent.
    Matthew W. Bernier of Carlton Fields, P.A., Tallahassee, FL; Stephen J. Bronis, Walter J. Taché, Cristina Alonso and Jessica Zagier Wallace of Carlton Fields Jor-den Burt, P.A., Miami, FL, for Respondent/Cross-Petitioner.
   QUINCE, J.

In these consolidated cases, Myriam Ampuero-Martinez (hereinafter “Mrs. Am-puero-Martinez”) and Cedars Healthcare Group (hereinafter “Cedars”) seek review of the Third District Court of Appeal’s decision in Cedars Healthcare Group., Ltd. v. Ampuero-Martinez, 88 So.3d 190 (Fla.3d DCA 2011), on the ground that it expressly and directly conflicts with the decision of this Court in Florida Hospital Waterman, Inc. v. Buster (“Buster”), 984 So.2d 478 (Fla.2008). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the decision of the Third District and remand this case for further proceedings in accordance with this opinion.

This case arose from a pretrial discovery dispute in a medical malpractice wrongful death action following the death of Mrs. Ampuero-Martinez’s father while a patient at a facility operated by Cedars. Mrs. Ampuero-Martinez filed this action against Cedars and certain of her father’s other health care providers. Mrs. Am-puero-Martinez sought records of adverse medical incidents from Cedars pursuant to article X, section 25 of the Florida Constitution (Amendment 7), which guarantees patients the right to “have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const. Amendment 7 provides:

§ 25. Patients’ right to know about adverse medical incidents.
(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the following meanings:
(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
(4)The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.

Art. X, § 25, Fla. Const.

Cedars objected to the discovery request and the trial court overruled Cedars’ objection. Cedars petitioned the Third District Court of Appeal for a writ of certiorari, seeking to quash the trial court’s order requiring production of documents pursuant to Mrs. Ampuero-Mar-tinez’s request to produce. Cedars Healthcare, 88 So.3d at 190. Cedars argued many separate grounds, each of which it claimed would support granting the petition. Id. The district court granted the petition “solely on the ground that the request to produce ask[ed] for records of adverse medical incidents involving patients other than the plaintiff but does not limit the production of those records to the same or substantially similar condition, treatment, or diagnosis as the patient requesting access.” Id. (citing § 381.028(7)(a), Fla. Stat. (2010)). The district court held that the trial court’s failure to limit the request as required by the statute “departed from the essential requirements of the law,” and consequently quashed the portion of the trial court’s order which did not limit the production request in accordance with the statute. Id. The district court denied Cedars’ petition on all remaining grounds, finding that the trial court’s ruling on those grounds did not depart from the essential requirements of the law. Id. at 191.

Approximately three years prior to the Third District’s decision below, this Court declared subsection (7)(a) of section 381.028, Florida Statutes, invalid, as it “unconstitutionally impinge[d] upon the rights granted pursuant to amendment 7.... ” Buster, 984 So.2d at 493. Therefore, the Third District’s reliance on subsection (7)(a) impermissibly conflicts with this Court’s decision in Buster.

Accordingly, we quash the decision of the Third District below and remand this case for reconsideration by the district court pursuant to Buster.

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

      . Cedars raises three additional issues for review that were not addressed in the district court's opinion. We decline the invitation to address these issues.

      . Adrian Legaspi, M.D., 21st Century Oncology, LLC f/k/a 21st Century Oncology, Inc., Manuel M. Gonzalez, M.D., Alejandro J. Vila-suso, M.D., and Intensive Care Consortium, Inc.

      . Article X, section 25 was added to the Florida Constitution by voters during the November 2, 2004 election. See Buster, 984 So.2d at 480. It is referred to as “Amendment 7” because it was the seventh amendment to the Florida Constitution proposed on the November 2004 ballot. See id. at 480 n. 1 (citing Fla. Dep't of State, Div. of Elections, Nov. 2, 2004, General Election, Official Results, http://election.dos.state.fl.us/elections/ resultsarchive/ (last visited Jan. 9, 2012)). Floridians for Patient Protection sponsored the amendment and entitled it "Patients' Right to Know About Adverse Medical Incidents.” Id. at 482. Amendment 7 passed with a vote of 81.2 percent in favor of it and 18.8 percent against it. Id. at 480 n. 1; see also W. Florida Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 5 (Fla.2012).

      . At the time of the incident that Mrs. Ampue-ro-Martinez claims led to the death of her father, Cedars was a licensed health care facility. On December 1, 2007, Cedars sold its facility to the University of Miami and it became University of Miami Hospital.


author: PER CURIAM. LEWIS, J.,

text:
    Gilbert DUDLEY, III, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-2292.
    Supreme Court of Florida.
    May 15, 2014.

      Clyde M. Taylor, III of Taylor & Taylor, PA, St. Augustine, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Wesley Heidt, Bureau Chief, Criminal Appeals, and Pamela Jane Koller, Assistant Attorney General, Dayto-na Beach, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the Fifth District Court of Appeal, sitting en banc, in State v. Dudley, 64 So.3d 746, 747 (Fla. 5th DCA 2011), which reversed the trial court’s dismissal of the criminal charges against the defendant, Gilbert Dudley, III, for sexual battery on a person defined by Florida statute as “mentally defective,” and ordered that the jury’s guilty verdicts be reinstated. The Fifth District certified that its decision directly conflicts with the decision of the First District Court of Appeal in Mathis v. State, 682 So.2d 175 (Fla. 1st DCA 1996), as to the proper interpretation of the statutory term “mentally defective.” Dudley, 64 So.3d at 752. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons we explain, we agree with the Fifth District in Dudley that the First District’s decision in Mathis improperly equated the term “mentally defective” with the distinct concepts of legal insanity and competence to testify. We also agree with the Fifth District that the statutory definition of “mentally defective” does not, as the First District’s decision in Mathis suggests, require “a total or complete lack of mental capacity or understanding.” Dudley, 64 So.3d at 752. We therefore approve the Fifth District’s decision in Dudley, consistent with the analysis we adopt in this opinion, and disapprove the First District’s statutory interpretation in Mathis.

FACTS AND PROCEDURAL HISTORY

The State charged Dudley in a two-count information with unlawful commission of a sexual battery on a “mentally defective” person over the age of twelve, in violation of section 794.011(4)(e), Florida Statutes (2007), which provides as follows:

(4) A person who commits sexual battery upon a person 12 years of age or older without that person’s consent, under any of the following circumstances, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115:
(e) When the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact.

The term “mentally defective” is defined by section 794.011(1)(b), Florida Statutes (2007), as “a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.”

During trial, the victim’s mother testified that she met Dudley while he was an assistant minister at her church. Shortly after she separated from her husband, the victim’s mother and Dudley began dating, and Dudley subsequently moved into the mother’s home, where the victim, who was in her late teens, also resided. Dudley watched after the victim, took her to medical appointments, and drove her home from school. Both the victim and her mother testified that the victim viewed Dudley as a father figure.

After Dudley had been living in the home for some time, the victim told her mother that Dudley had been having sexual intercourse with her. The victim testified that Dudley forced her to remove her clothes and threatened to punch her if she refused to comply. She stated that Dudley had forced his “popsicle” into her vagina and anus while he touched her breasts. She further testified that during intercourse, Dudley asked her, “Do you want to have a boyfriend? Come on, baby, let me teach you how to do this.” The victim also recounted another episode in which Dudley again placed his “popsicle” in her vagina and continued intercourse to the point of ejaculation. When asked why she did not immediately inform her mother of the conduct, the victim testified that Dudley had promised to take her to the park if she kept these acts a secret.

In addition, the victim’s mother testified that, at the request of an investigator, she met Dudley for dinner while wearing a recording device. During dinner, Dudley admitted that he had engaged in intercourse with the victim twice, but claimed that the victim had made the sexual advances toward him.

The State also presented a videotaped interview between an investigator and Dudley. During the interview, Dudley’s recollection of the details of his sexual encounters with the victim varied greatly from those described in the testimony of the victim. In particular, he characterized the victim as the sexual aggressor, who on multiple occasions attempted to perform oral sex on him either without his consent or against his direction. On one occasion, Dudley claimed that he was awakened by the victim performing oral sex on him in his bedroom. On another occasion, he contended that while watching television in the living room, the victim “all of the sudden ... got on her knees and started pulling my pants back and started [performing oral sex].” On this occasion, Dudley asserted that after he stopped the victim from performing oral sex, she led him into her bedroom and forced him to engage in intercourse with her. Despite initially claiming that he immediately removed his penis after inserting it into the victim’s vagina, Dudley later admitted during the interview that he ejaculated inside both the victim’s mouth and vagina.

As to the victim’s mental limitations, the Fifth District set forth the pertinent testimony from trial as follows:

First, the State presented testimony from the victim. It is clear from this testimony that the victim, who was twenty-one years old at the time of trial, has a mental and developmental age far below her physical age, and that her ability to appraise the nature of many things is severely limited. For example, the victim repeatedly referred to Dudley’s sexual organ as his “popsicle,” and testified to the times when Dudley put his “popsicle” inside her. She explained that she did not want to do this but that “he told me if I don’t do it, he was gonna punch me.” When asked why she did not immediately tell her mother about the incidents, she said that Dudley promised to take her to the park if she did not tell her mother. The victim’s word choices and phraseology throughout the testimony reflect the mental ability of a young child.
Second, the victim’s special education teacher, Ms. Hook, had worked with the victim for four or five years and also served as the victim’s Special Olympics coach. Ms. Hook testified that the victim was in a class for the mentally disabled who have IQs lower than seventy. Ms. Hook testified that her students, including the victim, need constant supervision as they are not capable of self-direction, and have significant cognitive limitations. Ms. Hook recounted specific instances of the victim’s limitations. For example, the victim does not understand the concept of differing valuations of money or the relative value of things. Ms. Hook explained that if the victim had a $5 bill, the victim could not understand why she could not use the bill to purchase a $13 CD. Similarly, Ms. Hook testified that the victim does not understand abstract concepts such as “in a little while” or “usual.” She further testified that the victim could not rationally process and express her emotions, but would simply cry or stomp her feet if she did not like something.
Third, the victim’s mother testified that her daughter has mild cerebral palsy, has been diagnosed with bi-polar disorder and was simply “not like everyone else.” She explained that if the victim were ill, she would not know to take medication even if a doctor had provided her with it; that she cannot cook because she could burn the house down; that if she observed someone ill and incapacitated, she would not know to call “911” or otherwise seek help, but would probably just watch the person lie there. The mother further described her daughter’s mind as “very childlike,” explaining that she does not know how to count money; does not understand the basics of personal hygiene; is afraid of the dark; and, cannot be left alone for any extended period of time because of her need for constant monitoring. She explained that the victim will never be able to drive due to her limited mental capacity, must generally be separated from other children due to the concern that they would pick on her or persuade her to do inappropriate things, and that she cannot take a bus by herself. According to her mother, the victim is able to do laundry for the family, but only after much assistance, and is able to keep her room clean but needs prompting. The victim likes to watch Disney videos; and, she likes to shop and dance. The victim’s room is decorated in a Tinkerbell theme. The victim has never had a paying job.
The mother put the victim on birth control in the form of Depo-Provera shots. The mother began taking the victim to get these shots after an incident with an emotionally handicapped young man which caused the mother to worry about her daughter being taken advantage of and getting pregnant. The victim has been committed to a mental institution four times.
Finally, the State presented the testimony of Dr. Malcolm J. Graham, III, a psychologist who does evaluations for a number of different governmental agencies and who has been qualified as an expert witness in court many times. He testified at length as to the victim’s mental limitations; opined that the victim is mentally retarded, in the moderate range; reported that the victim scored sixty-one on her verbal IQ scale, fifty on her performance IQ, and fifty-one on her full scale, putting her at less than one percentile. In other words, at least ninety-nine percent of the people who take the test scored at a higher intelligence level than the victim. Dr. Graham testified that the victim could not remember for five minutes even one of four words that he asked her to remember during a conversation; that she cannot name one single current event happening anywhere in the world; and, that she cannot perform even the simplest arithmetic calculations, such as 3 + 1. He opined that the victim will always need to be in a highly structured environment where she will be cared for, as she will never be able to function independently. Significantly, Dr. Graham testified that in his professional opinion the victim suffers from a mental defect that renders her “permanently incapable of appraising the nature of her conduct” in the context of engaging in sexual intercourse — the very definition of “mentally defective” contained in the statute pursuant to which the State prosecuted Dudley.
It was undisputed that Dudley was fully aware of the victim’s mental condition. After becoming romantically involved with the victim’s mother, Dudley moved in with the family and had become “like a father figure” to the victim. At some point, Dudley lost his job, and then became the primary caregiver for the victim when her mother was at work. It was Dudley who had taken the victim to her appointment with Dr. Graham for a disability benefits evaluation; and, it was Dudley who initially gave Dr. Graham a full background and factual explanation of the victim’s mental limitations, before Dr. Graham began his own testing and evaluation. Dudley also admitted to his two sexual encounters with the victim, although he testified that the victim “came on to” him both times. He also testified that he believes the victim can work and do some things for herself, and that he believes the victim to be more intelligent than most others recognize.

Dudley, 64 So.3d at 748-49 (footnote omitted).

At the conclusion of the trial, the jury returned guilty verdicts on both counts of sexual battery on a person defined by statute as “mentally defective.” Shortly thereafter, the trial court issued an order concluding that the State had not presented “sufficient credible evidence” to satisfy its burden of proving that the victim was “mentally defective” beyond a reasonable doubt, as defined by section 794.011(1)(b). Specifically, the trial court explained that the Fifth District’s - decision in State v. Torresgrossa, 776 So.2d 1009 (Fla. 5th DCA 2001), “applied the statutory definition of mentally defective that this court believes is appropriate” in a situation with similar facts to conclude that the alleged victim was not “mentally defective.”- Because the trial court held that the State had failed to prove an essential element of the crimes charged under , section 794.011(4)(e), the trial court set aside the guilty verdicts and dismissed the charges.

On appeal, the Fifth District, en banc, unanimously reversed the trial court, reinstated the guilty verdicts, and directed the trial court to proceed with sentencing. Dudley, 64 So.3d at 747. The Fifth District held that the evidence presented by the State during trial was “clearly sufficient to support a jury finding that the victim was mentally defective, as defined by the statute.” Id.

After reviewing the trial testimony as to the victim’s mental limitations, the Fifth District compared the facts of this ease with five other Florida appellate cases and determined that the facts of this case more closely resembled those in Hudson v. State, 939 So.2d 146 (Fla. 4th DCA 2006); Schimele v. State, 784 So.2d 591 (Fla. 4th DCA 2001); and Bowman v. State, 760 So.2d 1053 (Fla. 4th DCA 2000), in which the mental defectiveness of the victims were held to be sufficiently established. Dudley, 64 So.3d at 750-51. The Fifth District found distinguishable the facts in Torresgrossa, 776 So.2d 1009, which was relied on by the trial court, and Mathis, 682 So.2d 175, cases in which the Fifth and First Districts held that the State had not provided sufficient evidence to support a finding that the victim was “mentally defective.” Dudley, 64 So.3d at 751.

Moreover, the Fifth District rejected the First District’s interpretation of the statutory term “mentally defective” in Mathis, explaining that “it suggests an unreasonably narrow reading” of the term. Id. The Fifth District’s concern stemmed from two aspects of the First District’s analysis in Mathis. See id. at 751-52. First, the First District in Mathis found the similarities between the statutory definition of “mentally defective” and the definition of “insanity” used in Florida criminal proceedings to be “apparent.” 682 So.2d at 180. Second, in holding that the State had not presented sufficient evidence to support a finding that the victim was “mentally defective,” the First District in Mathis relied heavily on the trial court’s finding that the victim was competent to testify. See id. at 180-81. Specifically, the First District noted as follows in Mathis:

No evidence was offered as to the correlation, if any, between IQ and “mental and developmental age,” and the ability to understand “the nature” of one’s “conduct.” Children having a chronological age younger than the alleged victim’s “mental and developmental age” have been found to possess a sufficient understanding of the difference between the truth and a lie, and the moral obligation to relate the former rather than the latter, so as to be competent to testify in court. In fact, in this case, the trial court concluded, we believe correctly, that the alleged victim was competent to testify.

Id. (citations omitted).

The Fifth District interpreted the First District’s decision in Mathis as suggesting that if the victim was determined to be competent to testify, a finding of mental defectiveness was precluded as a matter of law. See Dudley, 64 So.3d at 751-52. The Fifth District disagreed with this analysis, explaining that the statutory definition of “mentally defective” cannot “reasonably be read to mean a total lack of mental capacity, as the trial judge in our case seems to have concluded based upon language in Mathis and Torresgrossa.” Id. at 752.

Explaining that the statutory definition of “mentally defective,” which includes the key phrase “incapable of appraising the nature of his or her conduct,” indicates “significantly diminished judgment, but not a complete and total lack of mental awareness,” the Fifth District disagreed with, and then certified conflict with, Mathis “to the extent that Mathis can be read as equating ‘mental deficiency’ [sic] with competence to testify, or to mean a total or complete lack of mental capacity or understanding.” Id. The Fifth District also receded from its earlier panel decision in Torresgrossa to the extent that it had positively relied on Mathis. Id.

ANALYSIS

The conflict presented to the Court in this case concerns a matter of statutory interpretation, which is a question of law that is subject to de novo review. See Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d 186, 190 (Fla.2013). “A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). “When considering the meaning of terms used in a statute, this Court looks first to the terms’ ordinary definitions[, which] ... may be derived from dictionaries.” Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 439 (Fla.2013) (quoting Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 214 (Fla.2009)).

Originally enacted in 1974, section 794.011 is Florida’s sexual battery statute. In this case, Dudley was convicted by a jury of violating subsection (4)(e) of the sexual battery statute, which provides as follows:

(4) A person who commits sexual battery upon a person 12 years of age or older without that person’s consent, under any of the following circumstances, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115:
(e) When the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact.

§ 794.011, Fla. Stat. The term “mentally defective,” which is the focal point of our analysis, is defined by section 794.011(1)(b) as “a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.” § 794.011(1)(b), Fla. Stat.

In its decision below, the Fifth District rejected the First District’s prior interpretation of the term “mentally defective,” which equated the term with “legal insanity” and further suggested that anyone with a sufficient mental capacity to competently testify in a court cannot be found “mentally defective.” Dudley, 64 So.3d at 751. Specifically, in Mathis, 682 So.2d at 180, the First District explained that the “similarity” between the statutory definition of “mentally defective” and the definition of legal insanity used in Florida criminal proceedings is “apparent.” The First District further stated, in analyzing the legal sufficiency of the evidence of whether the victim in Mathis was “mentally defective,” that children having a “chronological age younger than the alleged victim’s ‘mental and developmental age’ have been found to possess a sufficient understanding of the difference between the truth and a lie, and the moral obligation to relate the former rather than the latter, so as to be competent to testify in court.” Id. at 181.

The Fifth District certified conflict with Mathis on two interrelated issues concerning the proper interpretation of the statutory term “mentally defective.” See Dudley, 64 So.3d at 752. First, the Fifth District certified conflict “to the extent that Mathis can be read as equating ‘mental deficiency’ [sic] with competence to testify.” Id. Second, the Fifth District certified conflict “to the extent that Mathis can be read ... to mean a total or complete lack of mental capacity or understanding” is necessary for a finding that the victim was “mentally defective.” Id. We address each conflict issue in turn.

I. Equating “Mentally Defective” with Competence to Testify

The first conflict issue concerns the First District’s statutory interpretation in Mathis, which equated the term “mentally defective” in the sexual battery statute with the concept of competence to testify. We agree with the Fifth District in Dudley that the First District’s statutory interpretation of this term was flawed.

In Mathis, 682 So.2d at 181, the First District held that “the evidence presented was legally insufficient to permit a reasonable jury to find that the alleged victim was ‘mentally defective’ on the date of the alleged sexual battery.” In reaching this conclusion, the First District applied the facts of Mathis to a test for competence to testify, stating as follows:

On appeal, the state argues that a reasonable juror might infer, from the alleged victim’s IQ and “mental and developmental age” some fifteen months before the date of the alleged sexual battery, that the alleged victim was “mentally defective” on the date of the alleged sexual battery. We disagree. No evidence was offered as to the correlation, if any, between IQ and “mental and developmental age,” and the ability to understand “the nature” of one’s “conduct.” Children having a chronological age younger than the alleged victim’s “mental and developmental age” have been found to possess a sufficient understanding of the difference between the truth and a lie, and the moral obligation to relate the former rather than the latter, so as to be competent to testify in court. In fact, in this case, the trial court concluded, we believe correctly, that the alleged victim was competent to testify.

Id. at 180-81 (citations omitted).

Competence to testify is an entirely different legal concept than the term “mentally defective,” as defined in the sexual battery statute. In Florida, a person is disqualified to testify as a witness when the court determines that the person is “[ijncapable of expressing himself or herself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand him or her,” or “[ijncapable of understanding the duty of a witness to tell the truth.” § 90.603, Fla. Stat. (2013).

As recognized by the Fourth District in Bowman, 760 So.2d at 1055, competence to testify and mental defectiveness are distinct concepts that are not properly equated. In concluding that a finding that the victim was competent to testify was not inconsistent with a finding of the victim being “mentally defective,” the Fourth District stated as follows:

We do not see a problem, as the Mathis court may have, with a victim being found able to understand the moral obligation to testify truthfully, and still being mentally defective under the statutory definition. It is not unusual for a child who is actually or mentally five years old to sufficiently understand the moral obligation to tell the truth so as to be competent to testify. Telling the truth is a basic value of our society which is drummed into the heads of children as soon as they are able to reason. The fact that such a child is competent to testify, however, is not inconsistent with being mentally defective under section 794.011(1)(b), Florida Statutes. Unlike telling the truth, the inappropriateness of the type of sexual activity occurring in Mathis or this case is not necessarily something which is normally discussed with a person who is mentally only five years old.

Id. We agree with the Fourth District in Bowman, which was cited affirmatively by the Fifth District in its decision below, and conclude that the First District in Mathis erred in relying on the concept of competence to testify in analyzing whether a victim falls within the statutory definition of “mentally defective.” We therefore disapprove the First District’s statutory interpretation in Mathis on this issue.

We turn next to the second conflict issue certified by the Fifth District.

II. An “Unreasonably Narrow Reading” of the Statutory Term “Mentally Defective”

In addition to disagreeing with the First District’s decision in Mathis on the basis that the First District improperly equated the statutory term “mentally defective” with competence to testify, the Fifth District also disagreed with the First District’s interpretation of the term “mentally defective” to “mean a total or complete lack of mental capacity or understanding.” Dudley, 64 So.3d at 752. This conflict issue is premised on the Fifth District’s holding that the First District’s comparison in Mathis between “mentally defective” and the concept of “legal insanity” suggested an “unreasonably narrow reading of the term.” Id. at 751.

The relevant criminal statute defining legal insanity in Florida provides as follows:

(1) AFFIRMATIVE DEFENSE.— All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:
(a) The defendant had a mental infirmity, disease, or defect; and
(b) Because of this condition, the defendant:
1. Did not know what he or she was doing or its consequences; or
2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection. § 775.027, Fla. Stat. (2013). By contrast, the term “mentally defective” in the sexual battery statute is defined as “a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.” § 794.011(1)(b), Fla. Stat.

Other than both statutory definitions including the words “mental,” “disease,” and “defect,” the definitions are noticeably different. For example, the definition of “insanity” set forth in section 775.027 uses the verb “know” to describe the requisite mental state, whereas the definition of “mentally defective” uses the verb “appraise.” Those different verbs also modify different objects — “what [the defendant] was doing or its consequences” for insanity, versus “the nature of [the victim’s] conduct” for mentally defective.

Moreover, not only are the two statutory definitions textually dissimilar, but the statutes also differ greatly in application. “Insanity” is an affirmative defense asserted by a defendant to avoid criminal responsibility, with the burden on the defendant to prove the defense by clear and convincing evidence. § 775.027(2), Fla. Stat. On the other hand, the State must prove beyond a reasonable doubt, as an element of the offense, that the victim was “mentally defective” to impose criminal responsibility on a defendant for sexual battery on such a person. § 794.011, Fla. Stat.

We agree with the Fifth District’s conclusion that the term “mentally defective” cannot be equated with the definition of insanity, and that it “cannot reasonably be read to mean a total lack of mental capacity, as the trial judge in [this] case seems to have concluded based upon language in Mathis and [the Fifth District’s prior panel decision in] Torresgrossa,” which cited Mathis for the proposition that the definition of “mentally defective” is similar to the definition of insanity. Dudley, 64 So.3d at 752; Torresgrossa, 776 So.2d at 1011. The word “defective” is defined as “a person who is subnormal physically or mentally”; “imperfect in form or function”; or “falling below the norm in structure or in mental or physical function.” Merrianir-Webster’s Collegiate Dictionary 302 (10th ed. 1999). As stated by the Fifth District, the statutory definition of “mentally defective” — that is, “incapable of appraising the nature of his or her conduct” — thus “connotes significantly diminished judgment, but not a complete and total lack of mental awareness.” Dudley, 64 So.3d at 752.

Accordingly, we hold that the First District in Mathis erred to the extent it suggested that, in order to conclude that a victim was “mentally defective” under the sexual battery statute, the victim must display “a total or complete lack of mental capacity or understanding.” Id. To the contrary, we conclude that the Fifth District in Dudley properly construed the sexual battery statute to determine that the evidence in this case was “clearly sufficient to support a jury finding that the victim was mentally defective, as defined by the statute.” Id. at 747.

CONCLUSION

For the reasons set forth above, we approve the Fifth District’s decision in Dudley, consistent with the analysis we adopt in this opinion, and disapprove the First District’s statutory interpretation in Mathis.

It is so ordered.

PARIENTE, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., concurs in result.

LEWIS, J., concurs in result only, with an opinion.

LEWIS, J.,

concurring in result only.

I concur in result only because while I do agree with the result of the district court of appeal below, I cannot agree with the entirety of its reasoning. In a similar fashion, I agree with the result of the majority, but not entirely with its reasoning or analysis. In my view, the Legislature intended the applicable statutory provision to establish broad protections for victims of abuse in this area. Yet, the words of limitation from the district court below and the limitations in the discussion of the protections afforded by the statute here do not provide a scope of protection to victims as established by the statutory provision.

Instead of providing clarity to this area of law by specifically articulating the wide scope of protections afforded by the statute, the majority focuses its opinion on reaching the rather obvious conclusion that the term “mentally defective,” defined by section 794.011, Florida Statutes (2007), to mean that a “mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct,” does not equate to the legal definitions of either insanity or competency. Furthermore, I cannot agree with the majority’s reliance on what the majority describes as the “well-reasoned conclusion” of the Fifth District that the term “mentally defective” means “significantly diminished judgment, but not a complete and total lack of mental awareness.” See Majority Op. at 282 n. 3, 282; State v. Dudley, 64 So.3d 746, 752 (Fla. 5th DCA 2011). That is far too limited.

In fact, neither the majority nor the Fifth District has attempted to actually discuss the parameters of the statutory definition of “mentally defective.” Both courts have skirted the issue, utilizing the dictionary definitions of the words “defective” or “deficient” to define a phrase that has already been defined by section 794.011(1)(b) to mean “incapable of appraising the nature of his or her conduct.” Quite simply, by failing to even attempt to provide a field of operation for the statutory definition of “mentally defective” as it was articulated by the Legislature, the majority has emasculated the legislative design that was clearly intended to broadly protect certain persons from being taken advantage of and sexually abused.

Accordingly, because I cannot ascribe to the majority’s limited interpretation of the statutorily defined term “mentally defective,” I concur in result only.

      . In its analysis, the Fifth District conflated the statutory term "mentally defective” with the term "mentally deficient.” The term "mentally deficient,” referenced by the Fifth District in its opinion, is not contained in the statute or in Mathis. See § 794.011(1)(b), Fla. Stat. (2007); Dudley, 64 So.3d at 751-52. The Fifth District’s use of the incorrect term appears to have been inadvertent.

      . Despite using the term "mentally deficient,” the Fifth District accurately recognized the operative phrase "incapable of appraising the nature of his or her conduct” that is part of the statutory definition of "mentally defective” provided in section 794.011(1)(b).

      . We note, once again, that the Fifth District inadvertently referenced the incorrect term "mentally deficient” in its analysis. However, while the court utilized the wrong term, we nevertheless embrace the Fifth District's underlying and well-reasoned conclusion on this issue.


author: LEWIS, J.

text:
    Josue COTTO, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-1277.
    Supreme Court of Florida.
    May 15, 2014.

      Carlos J. Martinez, Public Defender, and Daniel Tibbett, Assistant Public Defender, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Richard L. Polin, Bureau Chief, Criminal Appeals, and Linda S. Katz, Assistant Attorney General, Miami, FL, for Respondent.
   LEWIS, J.

Josué Cotto seeks review of the decision of the Third District Court of Appeal in Cotto v. State, 89 So.3d 1025 (Fla. 3d DCA 2012), on the basis that the Third District certified that its decision is in conflict with the decision of the Fifth District Court of Appeal in Williams v. State, 10 So.3d 1116 (Fla. 5th DCA 2009). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

This matter concerns the sentence imposed on Cotto for several crimes he committed on December 1, 2002. On that date, Cotto approached a stranger on a street in South Beach and told the stranger that he had just been “ripped off’ during an attempt to buy cocaine. Cotto proceeded to take out a gun, point it at the stranger’s stomach, and ask the stranger if he wanted anybody to be killed. When the stranger replied in the negative, Cotto put the gun in his pocket and walked away. The stranger called the police, who arrived immediately and arrested Cotto. Cotto was subsequently convicted of carrying a concealed firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon.

Cotto was sentenced as a prison releasee reoffender (PRR) for the conviction of aggravated assault with a firearm and was sentenced to five years’ incarceration. Cotto was sentenced to ten years’ incarceration as a habitual felony offender (HFO) for the conviction of carrying a concealed firearm. He was also sentenced to thirty years’ incarceration as an HFO for the conviction of possession of a firearm by a convicted felon, with a ten-year minimum mandatory pursuant to the ten/twenty/life statute. The HFO sentences were imposed to run concurrent to each other, but consecutive to the five-year PRR sentence. Thus, Cotto was sentenced to a total of thirty-five years’ incarceration.

Cotto’s sentences were affirmed without opinion on appeal to the Third District Court of Appeal. Cotto v. State, 990 So.2d 1072 (Fla. 3d DCA 2008) (table). Subsequently, Cotto filed a pro se rule 3.850 motion for postconviction relief that alleged, among other things, that his thirty-five year sentence was illegal under Hale v. State, 630 So.2d 521, 525 (Fla.1993), in which this Court held that sentences enhanced under the habitual violent felony offender (HVFO) provision of section 775.084, Florida Statutes, cannot run consecutively to other sentences that arise from the same criminal episode. The trial court denied Cotto’s motion for postconviction relief, and the Third District affirmed. Cotto, 89 So.3d at 1034. The Third District held that Hale prohibits the imposition of consecutive sentences for crimes that arise out of a single criminal episode only where both sentences are enhanced through a sentencing scheme that extends the permissible sentence beyond that prescribed by section 775.082, Florida Statutes. However, the Third District concluded that Hale does not prohibit the imposition of consecutive sentences if the statute under which the defendant is sentenced does not extend the maximum permissible sentence delineated by section 775.082. Id. at 1033-34. .Thus, the Third District concluded that because the PRR statute imposes a mandatory minimum that is in accordance with, and not beyond, the statutory maximum, a PRR sentence is not an enhanced sentence, and a trial court therefore may impose an HFO sentence consecutive to a PRR sentence. Id. at 1034.

The Third District certified a conflict with the decision of the Fifth District in Williams, 10 So.3d 1116, in which the Fifth District held that although a PRR sentence is not an enhanced sentence, because an HVFO sentence is an enhanced sentence, Hale applies and consecutive sentencing for crimes that arise from a single criminal episode is improper. Id. This review follows.

ANALYSIS

Standard of Review

This case presents a question of statutory construction. Questions of statutory interpretation are reviewed de novo. Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 78 (Fla.2012).

Our purpose in construing a statutory provision is to give effect to legislative intent, which is the polestar that guides a statutory construction analysis. Larimore v. State, 2 So.3d 101, 106 (Fla.2008). All statutory provisions must be given their full effect by the courts, and related statutory provisions must be construed in harmony with one another. Id.; see also Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007).

PRR and Habitual Offender Statutes

The PRR statute is a mandatory minimum provision that creates a sentencing floor. See State v. Cotton, 769 So.2d 345, 354 (Fla.2000). The PRR statute provides:

(9)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
[Certain enumerated crimes]
within 3 years after being released from a state correctional facility ... or within 3 years after being released from a correctional institution of another state ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.
3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffen-der as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment for life;
b. For a felony of the first degree, by a term of imprisonment of 30 years;
c. For a felony of the second degree, by a term of imprisonment of 15 years; and
d. For a felony of the third degree, by a term of imprisonment of 5 years.
(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084. [the habitual offender statute] or any other provision of law.
(d)l. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless the state attorney determines that extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection.

§ 775.082, Fla. Stat. (2002) (emphasis supplied). In contrast to the PRR statute, the HFO provision allows courts to sentence a defendant who qualifies as an HFO to an extended term of imprisonment. See § 775.084(1)(a), (4)(a), Fla. Stat. (2002). The HFO provision provides:

(1) As used in this act:
(a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or
b. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.
3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 898.13 relating to the purchase or the possession of a controlled substance.
4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.
(4)(a) The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual felony offender as follows:
1. In the case of a life felony or a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 30 [years’ imprisonment],
3. In the case of a felony of the third degree, for a term of years not exceeding 10 [years’ imprisonment].

Id. The HVFO provision is a subdivision of the same statute and is substantially the same as the HFO provision, except that the HVFO provision applies to defendants who were previously convicted of certain enumerated violent felonies. Both the HFO and HVFO provisions are enhancements to which Hale applies. See State v. Hill, 660 So.2d 1384, 1385 (Fla.1995). Together, the HFO and HVFO provisions are called the habitual offender statute. See, e.g., State v. Collins, 985 So.2d 985, 991 (Fla.2008). Although the habitual offender statute does not contain an express statement of legislative intent, we have stated that the intent of the statute is to incarcerate repeat felony offenders for longer periods of time by enlargement of the maximum sentence that can be imposed. See Hale, 630 So.2d at 524; see also Daniels v. State, 595 So.2d 952, 954 (Fla.1992).

Development of Hale

This Court held in Hale that sentences imposed pursuant to the HVFO statute for convictions that arise from a single criminal episode may not run consecutively. 630 So.2d at 524. The holding in Hale relied upon the precedent of this Court with regard to consecutive and concurrent sentences in Palmer v. State, 438 So.2d 1 (Fla.1983), State v. Enmund, 476 So.2d 165 (Fla.1985), and Daniels.

In Palmer, this Court held that a defendant could not be sentenced to consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes (1981), if the separate sentences arose from a single criminal episode. 438 So.2d at 3-4. The defendant in Palmer brandished a revolver while he robbed mourners at a funeral and was convicted of thirteen counts of robbery. Id. at 2. Section 775.087(2) mandated a three-year minimum sentence for any person who possessed a firearm during the commission of certain enumerated felonies, one of which was robbery. The trial court imposed the three-year minimum mandatory sentence for each of thirteen robbery counts, with the sentences to run consecutively, for a total minimum mandatory sentence of thirty-nine years. Id. at 2. However, this Court held that the consecutive sentencing was illegal because the language of section 775.087(2) authorized courts to deny defendants parole eligibility for only three years, but with consecutive sentencing the defendant would not become eligible for parole for thirty-nine years. Id. at 3. The Court based this conclusion on the rule of construction that anything “not clearly and intelligently described” in a penal statute and “manifestly intended by the Legislature” will not be considered included within the terms of the statute. Id. (quoting State v. Wershow, 343 So.2d 605, 608 (Fla.1977)). Thus, consecutive sentencing was not allowed in Palmer because it was not permitted by the language of the statute or clearly intended by the Legislature.

Two years after Palmer, this Court addressed whether Palmer prevented a trial court from imposing the minimum mandatory sentences for each of two murder convictions consecutively. Enmund, 476 So.2d at 168. This Court explained that because the statute that prescribed the sentence for first-degree murder included a mandatory minimum without any enhancement, the Legislature intended for trial courts to have the discretion to impose such sentences either concurrently or consecutively. Id. Thus, Palmer does not apply where the Legislature intended to permit consecutive sentencing.

Subsequently, this Court followed the rationale of Palmer in Daniels to hold that mandatory minimum sentences imposed pursuant to the HVFO provision may not be imposed consecutively for crimes that arise from a single criminal episode. Daniels, 595 So.2d at 954. In so doing, the Court likened the HVFO statute to the enhancement for possession of a firearm in Palmer because the sentence for the defendant’s underlying offense contained no minimum mandatory before the HVFO enhancement. Id. at 953. As in Palmer, the Court looked to the language of the statute to determine whether consecutive sentencing was permissible. The Court concluded that the legislative intent to increase the period of incarceration for repeat felony offenders was accomplished by the enlargement of the maximum sentence that may be imposed, and the Legislature had not authorized courts to impose consecutive minimum mandatory HVFO sentences where the crimes arise from a single criminal episode. Id.

The Court next relied on Daniels in Hale. The defendant in Hale was charged with the possession and sale of the same cocaine and was sentenced for each charge as an HVFO. 630 So.2d at 522. The trial court imposed two consecutive twenty-five-year sentences pursuant to the HVFO provision with a ten-year minimum mandatory for each sentence. Id. at 523. As in Daniels, this Court determined that the legislative intent to provide for longer periods of incarceration for repeat offenders was satisfied when the trial court used the HVFO statute to increase the maximum sentence for each offense. Id. at 524. The Court held:

[T]he trial court is not authorized ... to both enhance Hale’s sentence as a habitual offender and make each of the enhanced habitual offender sentences for the possession and the sale of the same identical piece of cocaine consecutive, without specific legislative authorization in the habitual offender statute.

Id. at 525. Therefore, Hale stands for the proposition that once multiple sentences from a single criminal episode are enhanced through the habitual offender statute, the total penalty cannot be further increased by consecutive sentencing absent specific legislative authorization. Id. This holding was reaffirmed by the Court in Hill, 660 So.2d at 1386 (holding that unless the Legislature modifies the habitual offender statute, trial courts may not sentence a defendant as a habitual offender and order that the sentences be served consecutively).

The underlying rationale of Hale has been applied to certain other enhanced sentences. See Jackson v. State, 659 So.2d 1060, 1062-63 (Fla.1995) (“As we noted in Daniels, possession of a gun, section 775.087, is an enhancement statute applying to the punishment prescribed by statute for the underlying offense. Under Daniels’ rationale, Jackson’s minimum mandatory sentence for possession of a firearm must run concurrent with the habitual offender minimum mandatory sentences, since both of these minimum mandatory sentences are enhancements.” (citation omitted)). However, a PRR sentence is not an enhanced sentence within the meaning of Hale. See Reeves v. State, 920 So.2d 724, 726 (Fla. 5th DCA 2006), app’d 957 So.2d 625 (Fla. 2007) (“The rule established in Hale and Daniels applies to sentences that have been enhanced beyond the statutory maximum. A PRR sentence is not enhanced beyond the statutory maximum. Consequently, we conclude that the rule established in Hale and Daniels has no application here.”). The PRR statute does not increase the maximum period of incarceration to which a person may be sentenced. Rather, under the PRR statute, only the maximum allowable sentence may be imposed. We are unwilling to extend Hale to apply to unenhanced sentences.

Furthermore, this Court has never applied Hale to the PRR statute. The PRR statute specifically states that the legislative intent is to punish those eligible for PRR sentencing to the fullest extent of the law. See § 775.082(9)(d)l., Fla. Stat. (2002). This express statement of intent demonstrates that the discretion of trial courts to impose consecutive sentences is not in any way limited by the PRR statute. The statutes at issue in Palmer, Daniels, and Hale did not include a similar statement of legislative intent. Indeed, the legislative intent expressed with regard to the habitual offender statute in Hale is different than that expressed in the PRR statute. While the intent behind the habitual offender statute is to increase the maximum allowable sentence, the intent behind the PRR provision is to provide for maximum sentencing within the sentencing statute. Therefore, although the legislative intent in the habitual offender statute is satisfied upon the imposition of an extended sentence beyond the otherwise applicable statutory maximum, the PRR statute expressly authorizes trial courts to impose the maximum sentence, which contemplates the use of consecutive sentencing. Based on this unambiguous expression of legislative intent in the PRR statute, we conclude that Hale does not prohibit a trial court from imposing a PRR sentence consecutive to a habitual offender sentence.

CONCLUSION

Based on the foregoing, we hold that Hale does not prohibit a habitual offender sentence from being imposed consecutively to a PRR sentence. Accordingly, we approve the decision of the Third District in Cotto and disapprove Williams.

It is so ordered.

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

      . Cotto was also convicted of improper exhibition of a weapon and possession of a firearm with an altered ID number. However, these convictions and the sentences imposed for them are not relevant to the issue presented by this case.

      . Section 775.082 delineates the penalties for felonies and misdemeanors unless another sentencing provision applies.

      . The statute has since been amended to make parole unavailable to defendants who have been convicted pursuant to section 775.087, and to mandate that sentences imposed pursuant to the statute be imposed consecutively to any other term of imprisonment. See § 775.087(2)(d), Fla. Stat. (2013).


author: PER CURIAM.

text:
    Inquiry Concerning A Judge, No. 13-309 re Brenda Tracy SHEEHAN.
    No. SC14-136.
    Supreme Court of Florida.
    May 15, 2014.

      Ricardo Morales, III, Chair, and Michael Louis Schneider, General Counsel, Tallahassee, FL, for Florida Judicial Qualifications Commission, Petitioner.
    Scott K. Tozian of Smith, Tozian & Daniel and Davis, Tampa, FL, for Judge Brenda Tracy Sheehan, Respondent.
   PER CURIAM.

In this case, we review the Findings and Recommendation of Discipline of the Florida Judicial Qualifications Commission (JQC) that recommends Judge Brenda Tracy Sheehan of the Circuit Court for the Thirteenth Judicial Circuit receive the sanction of a public reprimand. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC’s findings and recommendation of discipline.

I.

The JQC filed charges against Judge Sheehan, alleging that on the night of July 5, 2013, Judge Sheehan was observed driving erratically. Upon being stopped by law enforcement, Judge Sheehan was given field sobriety tests and was transported to the Hillsborough County Jail. Two Breathalyzer tests administered at the Hillsborough County Jail showed that Judge Sheehan had a breath-alcohol level of .171 and .161. Both scores were more than double Florida’s legal limit for breath-alcohol level of .08. See § 316.193(1)(c), Fla. Stat. (2011). On August 23, 2013, Judge Sheehan pleaded guilty to the charge of driving under the influence.

The JQC alleged that Judge Sheehan’s conduct violated Canon 1 and Canon 2A of the Code of Judicial Conduct. Canon 1 states: “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved.” Canon 2A states: “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

In January 2014, the JQC and Judge Sheehan entered into a stipulation and filed it with this Court. The stipulation outlined the same facts alleged in the JQC’s charges. The stipulation also noted that Judge Sheehan had never before been charged with driving under the influence and that the driving under the influence charge at issue in this case did not result in any personal injury or property damage. In the stipulation, Judge Sheehan accepted full responsibility for her wrongdoing. The stipulation also indicated that Judge Sheehan has taken steps to ensure that there will be no recurrence of such misconduct.

The stipulation incorporated the JQC’s Findings and Recommendation of Discipline. In its Findings and Recommendation, the JQC concluded that Judge Shee-han violated Canons 1 and 2A of the Code of Judicial Conduct. The JQC recommended a public reprimand based on -this Court’s acceptance of public reprimands for similar misconduct in In re Nelson, 95 So.3d 122 (Fla.2012), In re Esquiroz, 654 So.2d 558 (Fla.1995), and In re Gloeckner, 626 So.2d 188 (Fla.1993).

II.

Article V, section 12 of the Florida Constitution provides that in cases of judicial misconduct, this Court “may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the [JQC] and it may order that the ... judge be subjected to appropriate discipline.” Art. V, § 12(c)(1), Fla. Const. “Although this Court gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination to discipline a judge rests with this Court.” In re Renke, 933 So.2d 482, 493 (Fla.2006) (citing In re Angel, 867 So.2d 379, 382 (Fla.2004)). In this case, the JQC recommended that Judge Sheehan be publicly reprimanded. Because the JQC’s recommended discipline is consistent with this Court’s precedent, we approve the recommendation.

In Nelson, the JQC determined that Judge Nelson violated Canons 1 and 2A of the Code of Judicial Conduct by driving under the influence. 95 So.3d at 122-23. After the JQC and Judge Nelson entered into a stipulation, which noted that Judge Nelson’s driving under the influence arrest was an isolated incident and Judge Nelson had accepted full responsibility for her actions, this Court accepted the JQC’s recommendation of a public reprimand for Judge Nelson. Id. at 123, 126. Similarly, in Esquiroz, the Court accepted the JQC’s recommendation of a public reprimand after the JQC and Judge Esquiroz entered into a stipulation concerning Judge Esqui-roz’s plea of nolo contendere to the charge of driving under the influence. 654 So.2d at 558-59. The stipulation noted that Judge Esquiroz’s arrest for driving under the influence was an isolated incident and Judge Esquiroz apologized for her actions. Id. at 558.

Judge Sheehan’s conduct at issue in this ease — driving under the influence of alcohol — is reprehensible. Judge Sheehan’s action of driving under the influence not only violated Florida’s criminal law but also endangered the public. Such disregard of criminal law and public safety undermines the public’s confidence in the integrity of the judiciary and will not be tolerated.

III.

In summary, we accept the JQC’s recommendation of a public reprimand. We order Judge Sheehan to appear before this Court for the administration of a public reprimand at a time to be set by the Clerk of this Court. See In re Frank, 753 So.2d 1228, 1242 (Fla.2000).

It is so ordered.

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


text:
    In re AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE-RULE 3.113.
    No. SC13-552.
    Supreme Court of Florida.
    May 15, 2014.
    Hon. Kevin Emas, Chair, Criminal Court Steering Committee, Miami, FL, for Petitioner.
    Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm Beach, FL; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; and Paul E. Petillo, The Florida Public Defender Association, West Palm Beach, FL, Responding with comments.
   PER CURIAM.

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

At the Court’s request, the Supreme Court’s Criminal Court Steering Committee (Steering Committee) filed its petition in this case, proposing adoption of a new rule of criminal procedure, rule 3.113 (Minimum Standards for Attorneys in Felony Cases). The Steering Committee unanimously proposes the rule amendment. Following publication of the proposed new rule by the Court, comments were filed by the Criminal Procedure Rules Committee and the Florida Public Defender Association. As discussed below, having considered the Steering Committee’s petition and the comments filed, we adopt Florida Rule of Criminal Procedure 3.113, as proposed by the Steering Committee.

Rule 3.113 is intended to implement the Florida Innocence Commission’s recommendation that the criminal rules be amended to require that any attorney who is practicing law in a felony case complete at least a two-hour course regarding the law of discovery and Brady responsibilities. The new rule provides as follows:

Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postcon-viction proceedings before the trial court, the attorney must complete a course ... of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963) and Giglio v. United States, 405 U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] (1972).

Trial judges, based upon their inherent authority to uphold the rules of procedure, are authorized to give effect to the rule by not appointing counsel, or removing counsel, in the event that counsel is not in compliance with the rule. Additionally, to ensure that qualified counsel will be available at the time this rule goes into effect, we provide that the rule will take effect two years from the date of this opinion.

Accordingly, Florida Rule of Criminal Procedure 3.113 is hereby adopted as reflected in the appendix to this opinion. The amendment shall become effective May 16, 2016, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN FELONY CASES

Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course, approved by The Florida Bar for continuing legal education credits, of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Criminal Court Steering Committee Commentary

2014 Adoption. The Supreme Court has exclusive jurisdiction under Article V, section 15 of the Florida Constitution to “regulate the admission of persons to the practice of law and the discipline of persons admitted.” Implied in this grant of authority is the power to set minimum requirements for the admission to practice law, see In re Florida Board of Bar Examiners, 353 So.2d 98 (Fla.1977), as well as minimum requirements for certain kinds of specialized legal work. The Supreme Court has adopted minimum educational and experience requirements for attorneys in capital cases, see, e.g., rule 3.112, and for board certification in other specialized fields of law.

The concept of a two-hour continuing legal education (CLE) requirement was proposed in the 2012 Final Report of the Florida Innocence Commission.

The CLE requirement is not intended to establish any independent legal rights. Any claim of ineffective assistance of counsel will be controlled by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

It is intended that The Florida Prosecuting Attorneys Association and The Florida Public Defender Association will develop a seminar that will be approved for CLE credit by The Florida Bar. It is also intended that attorneys will be able to electronically access that seminar, at no cost, via The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.

The rule is not intended to apply to counsel of record in direct or collateral adult felony appeals.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


text:
    Bruce SMALL, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    No. 3D13-1664.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2013.
   Upon consideration, petitioner’s request for appointment of counsel is hereby denied.

Following review of the petition for writ of mandamus and the response and reply thereto, it is ordered that said petition is hereby denied.

WELLS, SUAREZ and LAGOA, JJ., concur.


author: NORTHCUTT, Judge.

text:
    RICHLAND TOWERS, INC., a Florida corporation; and Richland Towers, LLC, a Florida limited liability company, Appellants/Cross-Appellees, v. David DENTON, individually; Dale A. West, individually; and Tall Tower Ventures, LLC, a Florida limited liability company, Appellees/Cross-Appellants.
    No. 2D12-5493.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Rehearing Denied June 2, 2014.

      R.J. Haüghey, II, and C. Read Sawczyn of Sivyer Barlow & Watson, P.A., Tampa, for Appellants/Cross-Appellees.
    Robert D. Hall, Jr., Shane T. Muñoz, and Dennis A. Creed, III (withdrew after briefing) of Ford & Harrison LLP, Tampa, for Appellees/Cross-Appellants.
   NORTHCUTT, Judge.

Richland Towers, Inc., and Richland Towers, LLC, plaintiffs below, appeal a nonfinal order denying their request for a temporary injunction to enforce restrictive covenants in employment agreements with former employees David Denton and Dale West. Denton and West and their company, Tall Tower Ventures, LLC, cross-appeal the imposition of an injunction against their use of allegedly confidential business information. We reverse the denial of the temporary injunction, and this disposition renders the cross-appeal moot.

The parties are engaged in the “tall tower” business, involving towers used by radio and television broadcasters to relay signals, similar to the way cell phone towers are used in the wireless communication industry. The plaintiffs below are part of a group of affiliated, closely held corporations that own, lease, or operate such towers in the United States. Rich-land Towers, Inc., provided management services and support for these entities until late 2008, and Richland Towers, LLC, has performed those functions thereafter. Denton and West were key management employees beginning in 2000. This case concerns the parties’ rights and obligations under employment agreements that were effective from January 1, 2008, until their expiration on December 31, 2011.

West entered into an agreement to serve as senior vice president and chief operating officer on behalf of Richland Towers, Inc., “and all entities comprising the Corporation” as that term was defined in the Second Amended and Restated Stock Appreciation Rights and Bonus Plan Agreement. Denton entered into a similar contract to serve as senior vice president of sales and marketing. Although the two employment agreements at issue differed in ways primarily related to compensation and bonuses, the provisions involved in this litigation were the same in both contracts.

Section 10 of the agreements set forth restrictive covenants. These precluded the employees from engaging in a competing business during their employment and for a period thereafter. They prohibited the employees from hiring or attempting to hire employees or independent contractors of the employer, and they prohibited the solicitation of the employers’ clients, suppliers, and tenants, etc. The restrictive covenants also imposed confidentiality and nondisclosure duties regarding proprietary information obtained during the employment.

Prior to the expiration of the agreements at the end of 2011, Denton and West made plans to establish a competing business. They resigned in January 2012 and established Tall Towers Ventures, LLC. The Richland Towers entities filed suit thereafter. In their amended complaint, Richland Towers, Inc., and Richland Towers, LLC, alleged eight claims for breach of the employment agreements, misappropriation of trade secrets, and the like. Denton and West answered, raised numerous affirmative defenses, and filed twelve counterclaims alleging breach of contract, seeking an accounting, and alleging fraud in the inducement.

This appeal concerns an order that granted in part and denied in part Rich-land Towers’ request for a temporary injunction to enforce the restrictive covenants in the employment agreements. Denton and West contended that the agreements were unenforceable for various reasons, including that Richland Towers, Inc., ceased active operation in late 2008 and that Denton and West were not fully paid as required by the agreements.

In its order, the circuit court recited the requirements for a temporary injunction: the threat of irreparable harm to the mov-ant for which there would be no adequate legal remedy, the movant’s substantial likelihood of success on the merits, and a determination that granting the injunction would serve the public interest. See Atomic Tattoos, LLC v. Morgan, 45 So.3d 63, 64-65 (Fla. 2d DCA 2010). The court observed that the only element in controversy was whether Richland Towers had demonstrated a substantial likelihood of success on the merits.

The circuit court analyzed two issues regarding Richland Towers’ likelihood of success. First, it considered whether, as contended by Denton and West, the cessation of business by Richland Towers, Inc., in late 2008 rendered the restrictive covenants unenforceable. The court concluded that it did not, and we agree. When ruling on a claim to enforce a restrictive covenant in an employment contract, a court may consider a defense that the employer no longer continues in the same business if the discontinuation was not caused by a violation of the restriction. § 542.335(1)(g)(2), Fla. Stat. (2007). But the court may not refuse enforcement sought by a third-party beneficiary who is expressly identified in the contract as one entitled to enforce the restrictive covenants. § 542.335(1)(f). Here, paragraph 10(Z) of the employment agreements expressly provided that the “Corporation (and each of the Affiliates comprising the Corporation) shall be deemed to be third party beneficiaries under this Agreement with the right to seek enforcement hereof and make claims hereunder, including but not limited to claims arising under this Section 10.” Thus, the cessation of business by Richland Towers, Inc., did not affect the covenants’ enforceability by the affiliates, including Richland Towers, LLC.

On the second issue, the circuit court found that certain bonuses had not been paid as required under the agreements. The court accepted Denton and West’s argument that this constituted a prior breach that rendered the agreements, and thus the restrictive covenants, unenforceable. See Bradley v. Health Coal., Inc., 687 So.2d 329 (Fla. 3d DCA 1997) (reversing temporary injunction and remanding for consideration of former employee’s affirmative defense of prior breach, which pertained to employer’s burden of showing likelihood of success on the merits of the affirmative defenses as well as its prima facie case).

To reach this conclusion, the circuit court necessarily had to determine that the parties’ obligations under the contracts were dependent covenants. When a dependent covenant has been breached, the entire contract is virtually destroyed. See Steak House, Inc. v. Barnett, 65 So.2d 736, 738 (Fla.1953) (stating that breach of a dependent covenant “must be considered as destroying the entire contract”); see also Cordis Corp. v. Prooslin, 482 So.2d 486, 490 (Fla. 3d DCA 1986) (“In the non-competition and trade-secret context, an employer’s breach of the employment contract is a relevant factor in determining whether the employer is entitled to a temporary injunction, at least where the breach involves a dependent covenant.” (citations omitted)), declined to follow on other grounds by Sarasota Beverage Co. v. Johnson, 551 So.2d 503 (Fla. 2d DCA 1989).

Whether the payment obligations under the employment agreements were dependent or independent covenants is an issue of law that turns on the proper interpretation of the contracts; thus, we review this issue de novo. See Morgan v. Herff Jones, Inc., 883 So.2d 309, 313 (Fla. 2d DCA 2004). We must, whenever possible, construe the agreement according to its plain language and consider the provisions at issue in the context of the entire agreement in order to achieve “a reasonable construction to accomplish the intent and purpose of the parties.” Hand v. Grow Constr., Inc., 983 So.2d 684, 686-87 (Fla. 1st DCA 2008) (quoting James v. Gulf Life Ins. Co., 66 So.2d 62, 62 (Fla.1953)).

The general rule that covenants are considered dependent will be trumped by a contrary intention expressed in an agreement. See id. And in these agreements there was an explicit expression of a contrary intention. In paragraph 10(e), the agreements provided as follows:

Covenants Independent. Each restrictive covenant on the part of the Employee set forth in this Agreement shall be construed as a covenant independent of any other covenant or provisions of this Agreement or any other agreement which the Corporation and the Employee may have, fully performed and not executory, and the existence of any claim or cause of action by the Employee against the Corporation, whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by the Corporation of any other covenant.

Although the circuit court acknowledged the existence of this provision, it disregarded its import. Instead, the court relied on a provision at the beginning of the agreements. Following two initial whereas clauses, the agreements stated: “NOW, THEREFORE, in consideration of the covenants and agreements herein contained and the moneys to be paid hereunder, the Employer hereby employs the Employee and the Employee hereby agrees to perform services as an employee of the Employer, upon the following terms and conditions[.]” The court concluded that the fundamental nature of the employment agreements was that the employer agreed to pay the employees. But that can be said of every employment relationship. Under the circuit court’s reasoning, no employment agreement could ever provide that its covenants were independent, a proposition that is not supported in the law. Here, the plain language of the agreements negotiated by the parties compels our conclusion that the parties unambiguously intended that the covenants were independent.

This determination is supported by a comparison of two cases in point. In Murphy v. Chitty, 739 So.2d 697 (Fla. 5th DCA 1999), the appellate court reversed a temporary injunction, concluding that a non-compete agreement was dependent on, not independent of, other agreements executed in conjunction with the sale of a business. The court explained:

The intent of the parties — as evidenced by the interrelated documents executed at the closing and the admissions of the parties at the injunction hearing — was that the agreements were dependent upon each other.... [One] contract ... specifies that Chitty cannot enforce the non-compete provision if he defaults under other terms of the agreement.

Id. at 698-99.

In contrast, in Reliance Wholesale, Inc. v. Godfrey, 51 So.3d 561, 565 (Fla. 3d DCA 2010), the Third District reversed an order that denied the former employer’s motion for a temporary injunction to enforce a non-compete agreement because it had not paid all the commissions due to the former employee. The court held that, the payment dispute notwithstanding, the former employer was entitled to enforce the non-compete provision because it was an independent covenant according to the plain language of the non-compete clause, which provided:

The covenants set forth herein shall be construed as agreements independent of any other provision in any other agreement by, between, among, or affecting Reliance Medical Wholesale, Inc. and Employee, and the existence of any claim or cause of action of Employee against Reliance Medical Wholesale, Inc., whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of this Agreement.

Id. at 565 (emphasis omitted). Like Reliance Wholesale, and unlike Murphy, the agreements here expressly provided that their covenants were independent and that claims by the employees were not a defense to the employers’ enforcement of the contractual provisions. In the cases cited by Denton and West, there was no discussion of dependent or independent covenants, nor was there any indication that the contracts contained provisions declar-mg the covenants to be one or the other. See, e.g., N. Trust Invs., N.A. v. Domino, 896 So.2d 880 (Fla. 4th DCA 2005); Benemerito & Flores, M.D.’s, P.A. v. Roche, 751 So.2d 91 (Fla. 4th DCA 1999); Bradley, 687 So.2d 329.

We are not persuaded by Denton and West’s parsing of the clause at issue. They argue that the language in paragraph 10(e) should be construed in a manner that would make the restrictive covenants independent only of other conditions that had been “fully performed and not executory.” The first half of paragraph 10(e) states: “Each restrictive covenant on the part of the Employee set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement or any other agreement which the Corporation and the Employee may have, fully performed and not executory ....” Denton and West rely on a grammatical rule known as the doctrine of last antecedent to reach their interpretation.

Under this doctrine, “relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1007 (Fla.2010) (quoting Kasischke v. State, 991 So.2d 803, 811 (Fla.2008) (citation and internal quotation marks omitted)). But this doctrine “is not an absolute rule” and “cannot be applied in a way that ignores the plain reading of the language.” Id. at 1007 (citations omitted). The interpretation urged by Denton and West would have the effect of ignoring the plain language of the second half of paragraph 10(e), which states that “the existence of any claim or cause of action by the Employee against the Corporation, whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by the Corporation of any other covenant.”

We reverse the denial of Richland Tower’s request for a temporary injunction and remand for further proceedings. If the court again enters a temporary injunction, its order must contain specific findings of the elements necessary for injunc-tive relief, and it must provide for a bond. See Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997). Because this result renders the confidentiality provision enforceable, the issue on cross-appeal is moot.

Reversed and remanded with instructions.

ALTENBERND and BLACK, JJ., Concur.

      . Corporation was defined as Richland Towers, LLC, (RTLLC) “and all Affiliates of RTLLC which are engaged in the business of acquiring, developing, maintaining, operating, leasing and/or selling broadcast facilities and/or broadcast stations, and providing related services, viewed on an aggregate basis.”


text:
    Adam Free SOUSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4710.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238 (Fla.2007); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Allen v. State, 976 So.2d 1189 (Fla. 5th DCA 2008); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

CRENSHAW, BLACK, and SLEET, JJ., Concur.