author: LEWIS, J.

text:
    Robert L. CHRISTENSEN, Petitioner, v. Mary Jo BOWEN, et al., Respondents.
    No. SC12-2078.
    Supreme Court of Florida.
    April 10, 2014.
    Rehearing Denied May 30, 2014.

      Raoul G. Cantero, III, David P. Draigh and Jesse Luke Green of White & Case LLP, Miami, FL; Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, FL; George Alexander Vaka of Vaka Law Group, P.L., Tampa, FL; and Dennis Richard O’Connor of O’Connor & O’Connor, LLC, Winter Park, FL, for Petitioner.
    Stephen John Pajcic, III and Thomas Fitzpatrick Slater of Pajcic & Pajcic, P.A., Jacksonville, FL; William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, FL; and S. Sammy Caccia-tore, Jr. of Nance, Cacciatore, Hamilton, Berger, Nance & Cacciatore, Melbourne, FL, for Respondents.
   LEWIS, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Bowen v. Taylor-Christensen, 98 So.3d 136 (Fla. 5th DCA 2012). In its decision, the district court ruled upon the following question, which it certified to be of great public importance:

MAY A PERSON WHO INTENTIONALLY DIRECTS THAT TITLE BE ISSUED IN HIS NAME AS CO-OWNER, BY COMPLETING A SWORN APPLICATION FOR TITLE IN CONJUNCTION WITH THE PURCHASE OF A VEHICLE, AVOID LIABILITY UNDER THE DANGEROUS INSTRUMENTALITY DOCTRINE BY CLAIMING THAT HE NEVER INTENDED TO BE THE OWNER OF THE VEHICLE AND FURTHER CLAIMING THAT HE RELINQUISHED CONTROL TO A CO-OWNER OF THE VEHICLE?

Id. at 145. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows:

MAY A PERSON WHOSE NAME IS ON THE CERTIFICATE OF TITLE OF A VEHICLE AS CO-OWNER AVOID VICARIOUS LIABILITY UNDER AN EXCEPTION TO THE DANGEROUS INSTRUMENTALITY DOCTRINE BY ASSERTING THAT HE NEVER INTENDED TO BE THE OWNER OF THE VEHICLE AND FURTHER CLAIMING THAT HE RELINQUISHED CONTROL TO A CO-OWNER OF THE VEHICLE?

We answer this question in the negative and hold that a person whose name is on the certificate of title as co-owner is a beneficial owner with the right to control the vehicle.

BACKGROUND

Robert Christensen paid the purchase price for a Chrysler PT Cruiser on April 29, 2003, and the certificate of title was placed in the name of both Mary Taylor-Christensen and Robert Christensen as co-owners. They were married at the time, but were involved in dissolution of marriage proceedings. Both Christensen and his then wife Taylor-Christensen signed the application for certificate of title, under penalty of perjury, to have the title issued to them jointly as “owner” and “co-owner.” Christensen did not receive the certificate of title because it was mailed to the wife’s address, but the certificate of title was issued in the name of both Christensen and his wife, as “Mary G. Taylor-Christensen or Robert L. Christensen.” Although Christensen did not have a key to the vehicle or use the vehicle, and did not reside with Taylor-Christensen or have access to her garage where the vehicle was kept, the title to the vehicle was in his name as co-owner.

Approximately twenty-two months after the vehicle was purchased, Taylor-Christensen negligently struck and killed Thomas Bowen while driving the vehicle. At the time of the accident, the title remained in the names of both Taylor-Christensen and Christensen and the vehicle was being operated with his consent. After the accident, Mary Jo Bowen, as executor of her husband’s estate, filed an action for wrongful death against both Taylor-Christensen and Christensen. Bowen alleged that Christensen, as an owner of the vehicle, was vicariously liable for Taylor-Christensen’s negligence under the dangerous instrumentality doctrine. Christensen, however, contended that he was not vicariously liable under the beneficial ownership exception to the dangerous instrumentality doctrine. He testified during trial that his intent was to purchase the vehicle as a gift for his wife and that he had no involvement with the vehicle after it was purchased.

Bowen moved for a directed verdict on the issue of ownership, but the trial court denied the motion. The jury was instructed that “[a]n owner of a vehicle is one who has legal title to the vehicle and who has a beneficial ownership with the right of control and authority over its use.” The jury subsequently found that Christensen was not an owner of the vehicle. Bowen appealed the denial of the motion for directed verdict to the Fifth District, and the district court, on rehearing, reversed the trial court’s ruling. The Fifth District held that Christensen was liable under the dangerous instrumentality doctrine because he retained an identifiable property interest in the vehicle for himself by having his name placed on the title as co-owner, and that his subjective intent in signing the purchase and title documents was insufficient to defeat vicarious liability of a titleholder. The district court then certified to this Court the previously quoted question, and this review followed.

ANALYSIS

Standard of Review

The rephrased certified question presents a pure question of law, which is reviewed de novo. Rando v. Gov’t Emps. Ins. Co., 39 So.3d 244, 247 (Fla.2010). Further, the issue in this case concerns an order entered on a motion for directed verdict, which is also reviewed de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). When reviewing a trial court’s ruling on a motion for directed verdict, this Court views the evidence and all inferences of fact in the light most favorable to the nonmoving party. Id.

The Dangerous Instrumentality Doctrine and Beneficial Ownership Exception

The dangerous instrumentality doctrine serves to ensure financial recourse to members of the public who are injured by the negligent operation of a motor vehicle by imposing strict vicarious liability on those with an identifiable property ownership interest in the vehicle. See Kraemer v. Gen. Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990). The underlying rationale of the doctrine is that if a vehicle owner, who has control over the use of the vehicle, exercises his or her control by granting custody of the vehicle to another, the owner commits himself or herself to the judgment of that driver and accepts the potential liability for his or her torts. S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 634 (1920) (quoting Barmore v. Vicksburg, S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 215 (1905)).

A narrow exception to the dangerous instrumentality doctrine has been recognized in cases where the titleholder lacks the beneficial ownership of a vehicle. See Aurbach v. Gallina, 753 So.2d 60, 64 (Fla.2000) (“In Metzel v. Robinson, 102 So.2d 385, 385-86 (Fla.1958), the Court made it clear that, absent a conditional sales agreement, the circumstances where an entity or individual who possessed legal title would not be vicariously liable under the dangerous instrumentality doctrine were extremely limited.”). Under this “beneficial ownership” or “bare legal title” exception, a titleholder may avoid vicarious liability if the titleholder demonstrates that he or she does not have the authority to exert any dominion or control over the vehicle and therefore is not a beneficial owner of the vehicle. Id. at 63-65. In such circumstances, this Court has held that the titleholder holds only “naked legal title” in the vehicle. See Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635, 637 (Fla.1955).

The beneficial ownership exception was first recognized in Palmer nearly sixty years ago. In Palmer, a car dealership held title to a vehicle that was involved in an accident. Id. at 636. At the time of the accident, the driver of the vehicle had already submitted the down payment, signed a conditional sales contract for the vehicle, and taken possession of the vehicle, but “bare” legal paper title remained with the dealership. Id. This Court held that the dealership possessed only naked legal title in the vehicle as security for payment of the full purchase price, and no longer had any authority over the use of the vehicle (i.e., beneficial ownership of the vehicle). Id. The Court further explained that the rationale for imposing vicarious liability under the dangerous instrumentality doctrine did not apply because the dealership could no longer exercise control over the use of the vehicle. As a result, the dealership was not an owner of the vehicle and was not liable under the dangerous instrumentality doctrine. Id. Thus, under Palmer, a person or entity who holds bare paper title in a vehicle solely under a conditional sales agreement is exempted from vicarious liability under the dangerous instrumentality doctrine.

Subsequently, this Court extended the beneficial ownership exception recognized in Palmer to prohibit vicarious liability in the situation where an actual common law sale of a vehicle had occurred but formal title had not yet been transferred. See McAfee v. Killingsworth, 98 So.2d 738, 740 (FIa.1957). In McAfee, the titleholder left the vehicle with the operator of a filling station to sell. Id. at 739. A prospective buyer test drove the vehicle, gave the filling station operator less than the full purchase price, and departed in the vehicle. Id. The buyer collided with another vehicle before speaking with the titleholder regarding the sale. Id. This Court held that sufficient evidence existed to satisfy the common law prerequisites for a sale and applied Palmer to conclude that the titleholder had transferred beneficial ownership of the vehicle to the buyer. Id. at 740.

However, shortly after deciding McAfee, this Court declined to further extend the exception. See Metzel, 102 So.2d at 386. In Metzel, the titleholder had title issued in her name for a vehicle that was purchased by her nephew because the seller objected to an eighteen-year-old signing the financing paperwork. Id. at 385. The nephew lived with the aunt and the aunt insured the vehicle. Id. Between the time that title was issued and the time of the accident, the aunt took no action to remove her name from the title, but she also had no further involvement with the vehicle. Id. This Court held that the aunt was still in a position to exert some dominion and control over the vehicle, and therefore she held an ownership interest as a matter of law. Id. at 386. Thus, the relevant inquiry after Metzel for beneficial ownership is whether a titleholder is in a position to exercise any dominion and control over a vehicle, and the use or non-use of the vehicle by the titleholder is insufficient to establish a lack of beneficial ownership.

More recently, in Aurbach, this Court addressed whether a person’s ability to exert dominion and control over a vehicle alone was sufficient to impose vicarious liability, even absent title ownership. 753 So.2d at 65. In Aurbach, a married couple purchased and maintained a vehicle with joint funds, but with the intention that one of their daughters be the primary driver. Id. at 61. The vehicle was titled in the wife’s name. Id. The daughter negligently operated the vehicle and caused an accident. A person injured in the accident sought to hold the father liable on the basis that he was in a position to exert dominion and control over the vehicle. Id. The jury specifically found that the father exercised control over the vehicle. This Court recognized that in the past it had consistently required a person to have an identifiable property interest in the vehicle involved in the accident for vicarious liability to be imposed. Id. at 62. Accordingly, this Court held that the ability of the father to exert some dominion and control over the vehicle did not constitute a basis for vicarious liability under the dangerous instrumentality doctrine. Id. at 65.

This precedent demonstrates that vicarious liability arises from an identifiable property interest in a vehicle possessed by the person held to be vicariously liable which creates the right to exert some dominion and control over the vehicle. See, e.g., id. at 62-63. The precedent further establishes that the beneficial ownership exception is narrow and applies only where the titleholder holds title under a conditional sales agreement or has sold the vehicle and transferred possession. In such cases, the underlying rationale of the dangerous instrumentality doctrine—that the titleholder has committed himself or herself to the driver’s judgment—does not apply. However, in the absence of evidence that the titleholder holds only naked legal title under a conditional sales contract or a faulty incomplete transfer, precedent demonstrates that the certificate titleholder is a beneficial owner as a matter of law and is liable for the permissive use of the vehicle by another person.

Certified Question

The rephrased certified question relates to the scope of the beneficial ownership exception that was first recognized in Palmer. Specifically, the question presented is whether the beneficial ownership exception applies to an individual who applied for title to be issued in his or her name, but who neither used nor had physical access to the vehicle. We hold that under these circumstances, a joint titleholder who has not divested himself or herself of the ownership interest is an owner as a matter of law.

A joint titleholder holds a joint tenancy interest in the vehicle and, accordingly, has the right to possess and use the vehicle. See § 319.22(2)(a)(1)(a), Fla. Stat. (2013) (“When a motor vehicle ... is registered in the names of two or more persons as co-owners in the alternative by the use of the word ‘or,’ such vehicle shall be held in joint tenancy.”). Each joint titleholder has statutorily conferred legal rights in the vehicle. Id. Each titleholder enjoys a right of survivorship in the vehicle. Id. Additionally, where the names of joint titleholders are separated by the word “or” on the title documentation, as in the instant case, either may unilaterally encumber or sell the vehicle. Id. Each of these rights places a joint titleholder in a position to exercise authority or control over the vehicle.

The legal rights of a titleholder exist regardless of whether they are actually exercised. The failure of a titleholder to use the vehicle, or otherwise exercise his or her legal rights, does not eliminate these rights. Consequently, the exclusive use of the vehicle by one titleholder does not destroy the beneficial ownership of another titleholder. Beneficial ownership continues to exist with regard to the non-using titleholder because he or she remains in a legal position to exert dominion or control over the vehicle.

Further, we hold that an assertion by a joint titleholder that he or she never subjectively intended to be.a titleholder is irrelevant to beneficial ownership of a vehicle. See Johnson v. Deangelo, 448 So.2d 581, 582 (Fla. 5th DCA 1984) (holding that the subjective intent of a titleholder in placing her name on a title certificate was legally immaterial and insufficient as a matter of law to rebut title ownership and stating that the titleholder “intentionally caused her name to be placed on the title certificate, it did not happen by accident or without her knowledge and consent, nor did she hold her formal ownership interest in the vehicle as a mere security device or because she had made a good faith but ineffectual attempt or effort to transfer her title interest.”). Upon purchasing a vehicle, an owner (or owners) must apply to the Florida Department of Highway Safety and Motor Vehicles to have title issued in his or her name. § 319.23(1), Fla. Stat. (2013). The application must be attested to by the applicant(s) under penalty of perjury. Fla. Dept, of Highway Safety & Motor Vehicles, Application for Certificate of Title with/without Registration 2 (2012), available at http://www.flhsmv.gov/ dmv/forms/BTR/82040.pdf (last visited Dec. 8, 2013). If more than one person applies for title, the co-owners must apply on the same form. Id. Thus, each applicant knowingly enters into joint title ownership. When two individuals submit an application for joint ownership, each co-owner commits himself or herself to the judgment of the other and is subject to vicarious liability for the other’s negligent use of the vehicle. Should a titleholder never intend to use a vehicle and wish to avoid vicarious liability, then the titleholder must divest himself or herself of any interest in the vehicle. See Horne v. Vic Potamkin Chevrolet, Inc., 533 So.2d 261, 262 (Fla.1988) (“It is clear ... that under existing law there is no liability on the part of the seller of a motor vehicle where beneficial ownership or legal title, together with possession, have been transferred to a purchaser and injuries occur because of the negligence of the purchaser in operating the vehicle. In short, transfer of ownership cuts off liability on the part of the former owner.”).

Therefore, we conclude that beneficial ownership is unrelated to physical access to a vehicle, past use of a vehicle, or intent to use or not use a vehicle. Rather, beneficial ownership arises from legal rights that allow an individual to exert some dominion and control over the use of the vehicle. Thus, because a titleholder has legal rights in the vehicle and is in a position to exert some dominion and control over the vehicle, he or she is a beneficial owner. The injection of theories of subjective intent would destabilize the law with regard to motor vehicles in Florida.

This construction of beneficial ownership is consistent with Palmer as it was construed in Metzel and McAfee. In these cases, the analysis centered on the objective steps taken by a titleholder to transfer his or her interest in the vehicle, and whether that transfer prevented the titleholder from being able to control the use of the vehicle. Palmer, 81 So.2d at 637; Metzel, 102 So.2d at 386; McAfee, 98 So.2d at 740. In these cases, any subjective intent of the titleholder with regard to placement of his or her name on the title is not relevant to the beneficial ownership analysis.

Furthermore, the irrelevance of subjective intent is consistent with Florida’s statutory scheme, in that vehicle ownership is determined through legal title. Title XXIII of the Florida Statutes, which governs motor vehicles, defines “owner” in several chapters, and, in all but one chapter, the owner is defined as the titleholder, subject to exceptions for conditional vendees, lessors, and mortgagees. Thus, the Legislature has developed a system whereby the rights and responsibilities of owners of motor vehicles are both assigned and dependent upon the existence of legal title. In reaching this conclusion, we note that title is a clear and simple method of determining ownership. If title ownership were subject to attack based on the subjective intent of a titleholder, then all types of cases that involve motor vehicles would become subject to litigation on ownership issued. The better and more efficient and consistent rule is that title determines ownership, and ownership can only be dis-proven by objective evidence of a conditional sale or incomplete faulty transfer.

To the extent Christensen asserts that the district courts have interpreted the beneficial ownership exception to be applicable where exclusive use and possession reside in a person other than the titleholder, we find these cases to be fully distinguishable. See Wummer v. Lowary, 441 So.2d 1151, 1151-52 (Fla. 4th DCA 1983) (applying beneficial ownership exception where employer refinanced the vehicle for employee and held title as refinancer); see also Carrasquero v. Ethan’s Auto Express, Inc., 949 So.2d 223, 224 (Fla. 3d DCA 2006) (applying beneficial ownership exception where titleholder “agreed to take title in its name only as a tax-delaying convenience to [the beneficial owner].”) (footnote omitted); Plattenburg v. Dykes, 798 So.2d 915, 916 (Fla. 1st DCA 2001) (applying beneficial ownership exception where defendant had presented sufficient evidence that he gifted his entire interest in the vehicle, and the donee simply had not yet completed the paperwork to transfer the title at the time of the accident). Unlike the instant case, these cases involved either a financial transaction to benefit the beneficial owner of the vehicle or an incomplete transfer of the vehicle. Exclusive possession in those cases simply demonstrated that the titleholder had no legal rights with regard to the subject vehicles.

Instead, the instant case is more closely aligned with Hertz Corp. v. Dixon, 193 So.2d 176 (Fla. 1st DCA 1966), and Pennsylvania National Mutual Casualty Insurance Co. v. Ritz, 284 So.2d 474 (Fla. 3d DCA 1973), in which the titleholders were held liable despite having no involvement with the vehicles in question. In Hertz and Ritz, although all indicia of ownership resided in the negligent driver, the titleholder had enabled the driver to acquire the vehicle by having title placed in his name, and the driver possessed and drove the vehicle with the titleholder’s knowledge and consent. Hertz, 193 So.2d at 177 (“Here, not only was [the non-driving joint titleholder] one of the record title holders, but in fact had put in motion and made possible the operation of the automobile by [the driver], who, as a minor, could not have bought the automobile. Not only did [the driver] operate the car as a co-owner, but with the knowledge, consent and direct participation by [the non-driving joint titleholder] in the acquisition of title.”); Ritz, 284 So.2d at 477. The beneficial ownership exception was not applied and the titleholders, because title was placed in their names and they consented to the use of the vehicle by another, were determined to be vicariously liable.

Based on the foregoing, we answer the rephrased certified question in the negative and hold that a person whose name is on the certificate of title of a vehicle as co-owner cannot avoid vicarious liability under the “beneficial ownership” or “naked legal title” exception to vicarious liability under the dangerous instrumentality doctrine.

This Case

It is undisputed that Christensen was named on the title as a co-owner of the vehicle. The title objectively reflects that Christensen gave only a co-ownership interest to Taylor-Christensen while retaining a co-ownership interest for himself. Therefore, to divest himself of his co-ownership interest, and relieve himself from the possibility of vicarious liability, Christensen should have transferred his interest at some point after the purchase of the vehicle. Christensen presented no relevant evidence that, in the twenty-two months between the time that he had title placed in his name as co-owner and the accident, he transferred his co-ownership interest in the vehicle.

The only evidence presented by Christensen to establish he no longer owned the vehicle was that: (1) he did not use the vehicle; (2) he was not in a position to use the vehicle because he did not live with Taylor-Christensen, he could not access the garage where she kept the vehicle, and he did not possess keys to the vehicle; and (3) he subjectively intended to gift the vehicle to Taylor-Christensen when he purchased it. We conclude that this evidence was insufficient as a matter of law to rebut the legal principle that Christensen was a beneficial owner.

Christensen’s non-use of the vehicle does not demonstrate that he transferred his interest in the vehicle to Taylor-Christensen, or that he was not the beneficial owner. As previously discussed, this Court established in Metzel that the simple failure to exercise control does not demonstrate that a titleholder is not in a position to exert some dominion and control over the vehicle. Metzel, 102 So.2d at 386. Rather, the existence of the legal right to exercise control and the actual exercise of control are separate concepts, and the legal right to exercise control is the relevant inquiry for beneficial ownership.

Christensen, as a joint titleholder, had a legal right to encumber, sell, or take possession of the vehicle. Had he wished, Christensen could have done any of the above, and the mere fact that he did not act on these legal rights does not alter or diminish their existence. Further, had Taylor-Christensen died, Christensen would have inherited the vehicle because of his joint ownership interest. See § 319.22(2)(a)(l)(a), Fla. Stat. (2013). Therefore, he indisputably was in a position to exercise dominion and control over the vehicle and was a beneficial owner of the vehicle.

CONCLUSION

Based on the foregoing, we answer the rephrased certifíéd question in the negative. We hold that Christensen was an owner of the vehicle as a matter of law and approve the decision of the Fifth District reversing the trial court’s ruling on the motion for directed verdict.

It is so ordered.

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

      . For example, Chapter 324, "Financial Responsibility,” provides:

        Owner. — A person who holds the legal title of a motor vehicle; or, in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter.
      § 324.02 l(9)(a), Fla. Stat. (2013). Similarly, Chapter 316, "State Uniform Traffic Control,” provides:
      OWNER. — A person who holds the legal title of a vehicle, or, in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee, or lessee, or mortgagor shall be deemed the owner, for the purposes of this chapter.
      § 316.003(26), Fla. Stat.’(2013). Additionally, Chapter 322, "Driver’s Licenses,” provides:
      "Owner” means the person who holds the legal title to a vehicle. However, if a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or if a mortgagor of a vehicle is entitled to possession, such conditional vendee, lessee, or mortgagor is the owner for the purpose of this chapter.
      § 322.01(31), Fla. Stat. (2013). These statutory definitions in 2005, when the accident in this case occurred, contained identical language. §§ 316.003(26), 322.01(30), 324.021(9)(a), Fla. Stat. (2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.852.
    No. SC13-2295.
    Supreme Court of Florida.
    April 24, 2014.
    As Corrected April 24, 2014.
   PER CURIAM.

The Court, on its own motion, amends Florida Rule of Criminal Procedure 3.852 to require the Florida Department of Corrections to provide a copy of a defendant’s medical, psychological, or psychiatric records to the capital postconviction defendant’s counsel of record when providing a copy of such records to the records repository as required by subdivisions (e)(3) and (g)(2) of rule 3.852. This amendment is necessary because the current procedure by which a capital postconviction defendant may obtain his or her medical, psychological, or psychiatric records from the Department causes delay and is burdensome and inefficient. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(d).

Rule 3.852 is a discovery rule for public records production ancillary to proceedings pursuant to rule 3.851. Amends. to Fla. Rules of Crim. Pro. 3.852 (Capital Postconviction Pub. Records Prod.) and Rule 3.993 (Related Forms), 754 So.2d 640, 643 (Fla.1999). The Court first promulgated rule 3.852 on its own motion in 1996 as part of the Court’s ongoing efforts to improve the capital postconviction process and to eliminate unnecessary delay. The rule’s promulgation was “in response to the Court’s study of problems with procedures pertaining to the production of public records in capital postconviction proceedings.” See In re Amend, to Fla. Rules of Crim. Pro. — Capital Postconviction Public Records Production, 683 So.2d 475 (Fla.1996).

Rule 3.852 requires that the Attorney General provide written notification of the Court’s mandate affirming a sentence of death to the state attorney who prosecuted the case, the Florida Department of Corrections, and the defendant’s trial counsel. Fla. R.Crim. P. 3.852(d)(1). The Attorney General’s notice directs the state attorney and the Department of Corrections to submit public records — records pertaining to the investigation of the homicide or records relevant to the subject matter of a proceeding under rule 3.851, as applicable — to the records repository within ninety days after receipt of the notification. Id. The state attorney is required to provide the Attorney General with written notification of “the name and address of any person or agency that has public records pertinent to the case,” Fla. R.Crim. P. 3.852(d)(2), while the defendant’s counsel shall provide the Attorney General with written notification of “the name and address of any person or agency with information pertinent to the case which has not previously been provided to collateral counsel.” Fla. R.Crim. P. 3.852(d)(3). Rule 3.852 requires that discovery of public records on behalf of capital postconviction defendants be directed to the trial court hearing the postconviction motion. In re Amend. to Fla. Rules of Crim. Pro.—Capital Postconviction Pub. Records Prod., 683 So.2d at 475.

The procedure by which a capital post-conviction defendant may obtain his or her own medical, psychological, or psychiatric records under rule 3.852 causes delay and is burdensome and inefficient. First, because such records are confidential, see § 456.057(7)(a), Fla. Stat. (2013), prior to being sent to the record repository, the records “must be separately contained, without being redacted, and sealed. The outside of the container must clearly identify that the public record is confidential or exempt and that the seal may not be broken without an order of the trial court.” Fla. R.Crim. P. 3.852(f)(1). Next, in order to actually obtain his or her own confidential records under rule 3.852, a motion must be brought on the defendant’s behalf before the trial court. Upon the trial court’s order, sealed containers subject to an inspection by the trial court shall be shipped to the clerk of court. Fla. R.Crim. P. 3.852(f)(2). The containers may be opened only for inspection by the trial court in camera, without ex parte communications. Id.

Pursuant to rule 3.852(e)(3), the Department of Corrections “shall copy, index, and deliver to the records repository all public records determined by the department to be relevant to the subject matter of a proceeding under rule 3.851, unless such copying, indexing, and delivering would be unduly burdensome.” Fla. R.Crim. P. 3.852(e)(3). In an effort to simplify the mechanism by which a capital postconviction defendant may obtain his or her own confidential medical, psychological, or psychiatric records from the Department of Corrections — records that are already required to be sent to the records repository — the Court amends rule 3.852 on its own motion to provide that the Department of Corrections shall provide a copy of the defendant’s medical, psychological, and psychiatric records to the defendant’s counsel of record. This amendment is applicable to both the initial disclosure of records under subdivision (e)(3), and to the demand for additional records under subdivision (g)(2).

Accordingly, Florida Rule of Criminal Procedure 3.852 is hereby amended as reflected in the appendix to this opinion. New language is indicated by underscoring. The amendment shall become effective July 1, 2014, at 12:01 a.m. Because the amendment was not published for comment prior to its adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 3.852. CAPITAL POSTCONVICTION PUBLIC RECORDS PRODUCTION

(a)-(d) [No Change]

(e) Action Upon Receipt of Notice of Mandate.

(l)-(2) [No Change]

(3) Within 90 days after receipt of written notification of the mandate from the attorney general, the Department of Corrections shall copy, index, and deliver to the records repository all public records determined by the department to be relevant to the subject matter of a proceeding under rule 3.851, unless such copying, indexing, and delivering would be unduly burdensome. In addition, the department shall provide a copy of the defendant’s medical, psychological, and psychiatric records to the defendant’s counsel of record. The department shall bear the costs. The secretary of the department shall provide written notification to the attorney general of compliance with this section certifying that, to the best of the secretary of the department’s knowledge or belief, all such public records in the possession of the secretary of the department have been copied, indexed, and delivered to the records repository.

(4) — (5) [No Change]

(f) [No Change]

(g) Demand for Additional Public Records.

(1) [No Change]

(2) Within 90 days of receipt of the written demand, each person or agency notified under this subdivision shall deliver to the records repository any additional public records in the possession of the person or agency that pertain to the case and shall certify to the best of the person or agency’s knowledge and belief that all additional public records have been delivered to the records repository or, if no additional public records are found, shall recertify that the public records previously delivered are complete. To the extent that the additional public records are the defendant’s Department of Corrections’ medical, psychological, or psychiatric records, the department shall also provide a copy to the defendant’s counsel of record.

(3) [No Change]

(h)-(m) [No Change]

Repeal

[No Change]

Readoption

[No Change]

      . This problem with the rule 3.852 procedure came to the Court's attention in Fla. Dep’t of Corrs. v. Haliburton, Case No. SC 12-1090, wherein the Department, of Corrections was ordered by the trial court to provide a copy of the defendant’s medical and psychiatric records directly to the defendant’s collateral counsel. The Department of Corrections objected to the trial court orders, contending that the trial courts failed to follow the dictates of rule 3.852,' and consequently, departed from the essential requirements of law. By separate order, the Court today denied the Department’s petition for review. Fla. Dep’t of Corrections v. Haliburton, No. SC 12-1090, 2014 WL 1691262 (Fla. Order filed April 24, 2014).

      . The Court subsequently adopted a revised version of rule 3.852 on an emergency basis following the Legislature's repeal of rule 3.852 in 1998. Amends, to Fla. Rules of Crim. Pro. — Rule 3.852 (Capital Postconviction Pub. Records Prod.) and Rule 3.993 (Related Forms), 723 So.2d 163 (Fla.1998). Following the repeal of rule 3.852 by the Legislature in 2000, the Court readopted rule 3.852 as it existed prior to the effective date of chapter 2000-3, Laws of Florida (2000). In re Rules Governing Capital Postconviction Actions, 763 So.2d 273 (Fla.2000). In 2013, the Legislature substantially reworded section 27.7081. See Ch.2013-216, Laws of Fla.

      . The "records repository” is the location designated by the secretary of state pursuant to section 27.7081(3), Florida Statutes (2013), for archiving capital postconviction public records. Fla. R.Crim. P. 3.852(b)(3).

      . Section 456.057(7)(a) provides in pertinent part as follows:
      Except as otherwise provided in this section and in s. 440.13(4)(c) [pertaining to worker’s compensation], such [patient medical] records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, or the patient’s legal representative or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient....

      .Rule 3.852(f) applies to public records delivered to the records repository that are confidential or exempt from the requirements of section 119.07, Florida Statutes, or article I, section 24(a), Florida Constitution.

      . All comments must be filed with the Court on or before June 23, 2014, with a certificate of service verifying that a copy has been served on the Chair of the Capital Postconviction Proceedings Subcommittee, the Honorable Kevin M. Emas, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, Florida 33175, emask@flcourts.org, and on the Office of State Court Administrator, Staff to the Subcommittee, Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, schneiderb@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Subcommittee Chair has until July 14, 2014 to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


author: PER CURIAM. LEWIS, J., POLSTON, C.J.,

text:
    The LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, v. DATA TARGETING, INC., et al., Respondents.
    No. SC14-987.
    Supreme Court of Florida.
    May 27, 2014.

      Mark Herron, Robert J. Telfer, III, and Angelina Perez of Messer, Caparello & Self, P.A., Tallahassee, FL; John Stewart Mills, Andrew David Manko, and Courtney Rebecca Brewer of The Mills Firm, P.A., Tallahassee, FL; and David B. King, Thomas Alan Zehnder, Frederick Stanton Wermuth, and Vincent Falcone, III, of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, FL, for Petitioners.
    D. Kent Safriet, Thomas Roy Philpot, and Mohammad Omar Jazil of Hopping Green & Sams, P.A., Tallahassee, FL, for Respondents.
   PER CURIAM.

This case is before the Court on an emergency petition for the issuance of a constitutional writ, filed by the League of Women Voters of Florida, Common Cause, and eleven individually named parties, who are all plaintiffs in an ongoing lawsuit challenging the constitutional validity of the 2012 plan apportioning Florida’s congressional districts under the “Fair Districts Amendments” approved by Florida voters in 2010 to prohibit improper partisan and discriminatory intent in redistricting. See art. Ill, § 20(a), Fla. Const. The Respondents — political consulting organization Data Targeting, Inc., its president, and two company employees — are non-parties to the litigation that possess documents that the Petitioners contend demonstrate “the surreptitious participation of partisan operatives in the apportionment process,” in alleged violation of the Fair Districts Amendments to the Florida Constitution.

In consideration of the parties’ arguments, this Court’s case law, and the importance and statewide significance of this case, and for the reasons that follow, we grant the petition. Pursuant to our constitutional authority to issue “all writs necessary to the complete exercise of [our] jurisdiction,” art. V, § 3(b)(7), Fla. Const., we stay the enforcement of the First District Court of Appeal’s order that reversed the circuit court and prevented the disclosure or use of the documents at trial.

Based on the narrow and specific relief requested in the emergency petition, we determine that the circuit court is not precluded from admitting the documents into evidence, subject to a proper showing of relevancy, but that any disclosure or use of the documents must take place under seal in a courtroom closed to the public. We conclude that this is the only adequate, available remedy to maintain the status quo during the trial that is currently ongoing, and that there is a strong likelihood of irreparable harm to the Petitioners if the trial is conducted without the ability to offer this evidence — and no harm to the Respondents if the documents, which have already been produced, are admitted in this manner. In fact, this is similar to the remedy the Respondents themselves originally proposed in the circuit court after producing the documents. See Non-Parties’ Motion to Determine Confidentiality of Court Records at 8, Romo v. Detzner, Nos. 2012-CA-00412 & 2012-CA-00490 (Fla.2d Jud.Cir.Ct. May 12, 2014). However, in granting the petition, we emphasize that this opinion is not a determination that these documents will be permanently under seal or that they are in fact protected by the associational privilege and should be shielded from the public.

BACKGROUND

The issue presented by this emergency petition for extraordinary writ relief concerns certain documents in the possession of non-parties to the redistricting litigation, which are allegedly relevant to the constitutional claims currently being argued in the trial that is taking place in a Leon County circuit court. After the circuit court determined that the challenged documents were not privileged, the Respondents subsequently produced the documents to the trial judge and to counsel and experts for the Petitioners, although the circuit court directed that the documents would remain confidential. See Romo v. Detzner, Nos. 2012-CA-00412 & 2012-CA-00490, Order at 2-3 (Fla.2d Jud. Cir.Ct. May 2, 2014).

The circuit court stated that it would provide further guidance at a later time as to how the documents could be used at trial, see id. at 3, which the court then did in a second order entered two weeks later, in anticipation of the start of the trial the following week. See Romo v. Detzner, Nos. 2012-CA-00412 & 2012-CA-00490 (Fla.2d Jud.Cir.Ct. May 15, 2014). In this order, the circuit court determined that the documents themselves were to remain confidential, even “if offered as an exhibit in witness examination or entered into evidence in the trial of this case,” but that the proceedings “shall remain open” during use of the documents by any party at trial. Id. at 3.

Thereafter, in a short ruling that promised a forthcoming opinion explaining its reasoning in greater detail, the First District reversed the circuit court, stating in full as follows:

The orders of the lower tribunal entered May 2, 2014, and May 15, 2014, are REVERSED to the extent the orders permit any degree of disclosure or use at trial of the constitutionally-protected contents of the privileged and confidential documents that are the subject of those orders. See Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). An opinion of this court explaining its reasoning will follow.

Non-Parties, Pat Bainter, Matt Mitchell v. League of Women Voters of Fla., No. 1D14-2163 (Fla. 1st DCA order filed May 22, 2014) (reversing circuit court).

The case cited by the First District in its order arises from the United States Court of Appeals for the Ninth Circuit and pertains to the First Amendment associational privilege. See id. (citing Perry, 591 F.3d 1147). The First District also denied the Petitioners’ emergency motion to stay its decision during the pendency of the trial. See Nom-Parties, Pat Bainter, Matt Mitchell v. League of Women Voters of Fla., No. 1D14-2163 (Fla. 1st DCA order filed May 22, 2014) (denying emergency request for stay).

The following day, the Petitioners filed the emergency petition now before this Court, seeking to stay the enforcement of the First District’s order precluding the admission of the documents “so that the trial can be completed with this evidence, which has already been disclosed to the parties’ counsel and the trial court, in time for the trial court to fashion meaningful relief before the upcoming 2014 midterm elections.” The petition asserts that these documents are relevant to the Petitioners’ claims as to the unconstitutionality of the 2012 congressional apportionment plan because they allegedly indicate that the non-parties worked with other partisan operatives to submit, through “public front persons,” draft redistricting maps for the Legislature’s consideration. In other words, the Petitioners contend that these documents are important evidence for establishing their claim that there was “a parallel redistricting process” to the open and transparent one, which was “conducted in the shadows” in an effort to “sub-vertí] the public process” and produce a partisan map favoring Republicans and incumbents in violation of the Florida Constitution.

DISCUSSION

Since the passage of the Fair Districts Amendments, this Court has considered their impact and the “more stringent requirements as to apportionment” that they provide in a series of important decisions. In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83 So.3d 597, 598 (Fla.2012); see also In re Senate Joint Resolution of Legislative Apportionment 2-B (Apportionment II), 89 So.3d 872 (Fla.2012); Fla. House of Representatives v. League of Women Voters of Fla. (Apportionment III), 118 So.3d 198 (Fla.2013); League of Women Voters of Fla. v. Fla. House of Representatives (Apportionment IV), 132 So.3d 135 (Fla. 2013). Indeed, in December of last year, this Court addressed a claim of privilege concerning the very types of information implicated by this petition, in a case related to the same ongoing circuit court litigation. See Apportionment IV, 132 So.3d at 140-41.

Specifically, in that case, this Court held that even the significance of a legislative privilege founded on the fundamental principle of separation of powers must yield to the compelling, competing interest in effectuating the constitutional Fair Districts reapportionment standards and “ensuring that the Legislature does not engage in unconstitutional partisan political gerrymandering.” Id. at 148. Our decision in Apportionment LV, as well as our other recent redistricting cases, makes clear that this litigation is unique because it impacts the statewide operation of government and the validity of Florida’s current system of government through the alleged unconstitutionality of the 2012 apportionment plan.

Article V, section 3(b)(7), of the Florida Constitution provides that this Court may issue “all writs necessary to the complete exercise of its jurisdiction.” (Emphasis added.) In Roberts v. Brown, 43 So.3d 673 (Fla.2010), we explained that although the doctrine of all writs is not an independent basis for jurisdiction, this Court may utilize the constitutional all writs provision as a means of “preserving jurisdiction that has already been invoked or protecting jurisdiction that likely will be invoked in the future.” Id. at 677 (emphasis added); see also Petit v. Adams, 211 So.2d 565, 566 (Fla.1968) (providing that this Court may use its all writs authority if necessary to preserve the status quo and protect this Court’s ability to completely exercise jurisdiction at a future time).

We have fully considered the First District’s order, the underlying orders of the circuit court, and the parties’ arguments concerning our jurisdiction. After careful review, we have determined that the First District’s forthcoming decision on this issue is highly likely to construe both the First Amendment of the United States Constitution and the Fair Districts Amendments of the Florida Constitution. Indeed, in reversing the circuit court, the First District relied on a case holding that courts are required to consider the importance of the litigation in evaluating whether information is protected by the associational privilege. See Perry, 591 F.3d at 1161. In this case, this determination is highly likely to require the construction of not only the First Amendment, but also the Fair Districts Amendments and this Court’s decision in Apportionment IV, which repeatedly emphasized the important “public interest in ensuring that the Legislature does not engage in unconstitutional partisan political gerrymandering.” Apportionment IV, 132 So.3d at 148. While we are unable at this time to determine the likelihood that the First District’s forthcoming decision will expressly affect a class of constitutional officers, as argued by the emergency petition, we observe that we previously accepted jurisdiction on this basis regarding a related issue in Apportionment IV. See id. at 142. In addition, given the statewide importance of this litigation and the lack of Florida precedent regarding the associational privilege, we note that the First District may certify a question to this Court in issuing its forthcoming decision, which would undeniably vest us with jurisdiction under article V, section 3(b)(4), of the Florida Constitution.

In order to maintain the status quo during the ongoing trial, preserve this Court’s ability to completely exercise the eventual jurisdiction it is likely to have to review the First District’s decision, and prevent any irreparable harm that might occur if the Petitioners are prevented from using the challenged documents, we conclude that we must grant the petition and stay the enforcement of the First District’s reversal of the circuit court, pending the completion of the trial. See Amends. to Fla. Rules of Crim. P. 3.853(d)(1)(A) (Postconviction DNA Testing), 857 So.2d 190 (Fla.2003) (exercising all writs authority to hold a statute in abeyance while this Court considered its jurisdiction and other matters in order to avoid rendering proceedings moot and precluding this Court, should it determine it had jurisdiction, from the “complete exercise” thereof); cf. Monroe Educ. Ass’n v. Clerk, Dist. Ct. of Appeal, Third Dist., 299 So.2d 1, 3 (Fla.1974) (noting the importance of the Court’s all writs authority with respect to “certain cases [that] present extraordinary circumstances involving great public interest where emergencies and seasonable considerations are involved that require expedition”).

Accordingly, we hereby exercise our discretion under article V, section 3(b)(7), of the Florida Constitution to issue all writs necessary to the complete exercise of our jurisdiction, and stay the enforcement of the First District’s May 22, 2014, order reversing the circuit court’s May 2, 2014, and May 15, 2014, orders, pending the conclusion of the ongoing trial. As specifically requested in the emergency petition, the circuit court is not precluded from admitting the documents into evidence, subject to a proper showing of relevancy, but shall maintain the confidentiality of the documents by permitting any disclosure or use only under seal of the court and in a courtroom closed to the public.

No motion for rehearing will be entertained by the Court. It is so ordered.

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

LEWIS, J., concurs with an opinion.

POLSTON, C.J., dissents with an opinion in which CANADY, J., concurs.

LEWIS, J.,

concurring.

I concur with the decision to grant the petition, but write separately to explain why the exercise of all writs jurisdiction is appropriate here. If the order of the First District Court of Appeal, which precludes the disclosure or use during trial of documents that were determined by the circuit court to be discoverable with regard to the 2012 redistricting, remains in effect, the trial will proceed without their admission. Such an outcome will frustrate the fact-finding ability of the circuit court to determine whether the 2012 redistricting was conducted in a fair, impartial, and nonpartisan fashion, as required by the Florida Constitution. The First District has, by preventing consideration of these documents during trial, jeopardized the stability and integrity of our governmental'structure and authorized those who interact with the Florida Legislature on a critical matter such as redistricting to operate under a veil of secrecy. This outcome should be most disconcerting to any supporter of our democratic form of government.

The First District stated that it will issue an opinion to provide the rationale for the reversal of the circuit court orders. As previously discussed in the opinion granting the petition, precedent, establishes that we possess the authority under the doctrine of all writs to intervene now and protect the status quo while we determine whether jurisdiction ultimately exists to review the issue presented. The issue is one that impacts the statewide operation of Florida government and is, therefore, one of paramount importance. In Petit v. Adams, 211 So.2d 565 (Fla.1968), when presented with an electoral challenge that impacted Dade County, the Court utilized its all writs authority to maintain the status quo where action by a county canvassing board would have otherwise rendered the proceedings moot:

[I]t is apparent from the disclosures of the petition that it is the intention of the respondents constituting the Dade County -Canvassing Board to erase the counters on all of. said machines beginning at 5 o’clock p.m., Friday, June 7th, unless this Court directs otherwise. The erasure of such counters would render these proceedings moot and would in effect prevent this Court, in the event ■it determines it has jurisdiction, from the complete exercise thereof.
Upon consideration of the matter and pursuant to Article V, Section 4(2) which provides “the Supreme Court may issue all writs necessary or proper to the complete exercise of its jurisdiction,” the respondents in this cause are hereby directed to refrain from in any way erasing the results of said second primary election on any voting machine used therefor in Dade County, Florida until the further order of this Court.

Id. at 566. More recently, this Court utilized the all writs power to preserve physical evidence for DNA testing so that two pending emergency petitions related to the issue could be considered. See Amends, to Fla. Rule of Crim. P. 3.853(d)(1)(A) (Post-conviction DNA Testing), 857 So.2d 190 (Fla.2003). The Court explained:

To allow this Court an opportunity to fully consider the petitions, the deadline of October 1, 2003, set forth in rule 3.853(d)(1)(A), is hereby suspended until further order of this Court. Further, as petitioners point out, operation of the same deadline in section 925.11(l)(b)l., Florida Statutes (2002), may result in the non-preservation of physical evidence for DNA testing under section 925.11(4)(b). Because such a result would render these proceedings moot and in effect preclude this Court, should it determine it has jurisdiction, from the “complete exercise” thereof, the deadline in section 925.11(l)(b)l. is hereby held in abeyance while this Court considers its jurisdiction and other matters before it. See art. V, § 8(b)(7), Fla. Const. By our actions herein, we express no opinion on the merits of the underlying petitions. Accordingly, by operation of the terms of the statute, the evidence described in section 925.11(4)(a) “shall be maintained for at least the period of time” controlled by the abeyance. No other provision of the rule or statute is affected by this order.

Id. at 190.

While the use of all writs in this manner occurs in only the most urgent of situations, I cannot think of a situation more urgent than precluding the disclosure and use of documents during trial to potentially demonstrate that our entire legislative structure is a fagade and was not redistricted in compliance with the Florida Constitution. Moreover, if the trial proceeds in accordance with the order of the First District, this issue will become moot due to the time sensitive nature of the proceedings, and there will be no adequate remedy to correct a possible manifest injustice. Therefore, utilization of the doctrine of all writs to preserve the status quo is unquestionably within the parameters of our authority. See id. at 190; Petit, 211 So.2d at 566. This is the only way the validity and operation of our democratic system of government in Florida — and public faith in that system — can be protected.

Accordingly, I wholeheartedly concur with the decision of the majority to grant the petition.

POLSTON, C.J.,

dissenting.

Because Florida’s constitution does not grant this Court the jurisdiction to generally weigh in on evidentiary rulings and discovery disputes in ongoing civil trials, I respectfully dissent. In fact, with today’s decision, this Court effectively and unconstitutionally usurps the role of the First District Court of Appeal as the appellate court vested with jurisdiction over this interlocutory appeal of a civil evidentiary ruling.

The petitioners seek to invoke this Court’s all writs jurisdiction, but before exercising all writs jurisdiction, this Court must first have an independent basis for jurisdiction. This is because “[t]he all writs provision of section 8(b)(7) does not confer added appellate jurisdiction on this Court, and this Court’s all writs power cannot be used as an independent basis of jurisdiction.” St. Paul Title Ins. Corp. v. Davis, 392 So.2d 1304, 1305 (Fla.1980). In Williams v. State, 913 So.2d 541, 543 (Fla.2005), this Court emphasized that the all writs provision of the Florida Constitution “does not constitute a separate source of original or appellate jurisdiction. Rather, it operates as an aid to the Court in exercising its ‘ultimate jurisdiction,’ conferred elsewhere in the constitution.”

Here, the petitioners concede that this Court does not currently have jurisdiction over this case. The proceedings below involve a dispute over allegedly privileged and confidential documents and a district court order (and an expected, eventual opinion) in the interlocutory appeal of a trial court’s ruling regarding that dispute. The petitioners and the majority hypothesize about what the First District might eventually discuss in its opinion reversing the trial court, but such guesses do not constitute an independent basis for jurisdiction. If the First District, as the majority hypothesizes, issues an opinion construing the First Amendment to the United States Constitution or an amendment to the Florida Constitution, then this Court could eventually choose to exercise its discretionary jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. However, granting an all writs petition at this point is improper because an independent basis for jurisdiction does not currently exist.

The majority quotes Roberts v. Brown, 43 So.3d 673, 677 (Fla.2010), and claims it is granting this all writs petition to “protect[] jurisdiction that likely will be invoked in the future.” But, unlike this case, there was an independent and non-speculative basis for this Court’s jurisdiction in Roberts, namely this Court’s exclusive jurisdiction over pre-election challenges to constitutional amendments proposed through the citizen initiative process. Id. at 678 (“The applicability of the writ of prohibition in this case hinges upon the identical issue that is determinative of whether the doctrine of all writs applies; that is, the exclusiveness of this Court’s jurisdiction to consider pre-election challenges to proposed citizen-initiative constitutional amendments.”); see also United Servs. Auto. Ass’n v. Goodman, 826 So.2d 914, 915 (Fla.2002) (exercising all writs jurisdiction to vacate circuit court orders that encroached on this Court’s exclusive jurisdiction to adopt rules pursuant to article V, section 2(a) of the Florida Constitution); Fla. Senate v. Graham, 412 So.2d 360, 361 (Fla.1982) (“Because jurisdiction of the issue of apportionment will vest in this Court with certainty in this year we have the jurisdiction conferred by article V, section 3(b)(7), to issue all writs necessary to the complete exercise and in aid of the ultimate jurisdiction imposed by article III, section 16(b), (c) and (f).”). Additionally, the First District’s current order is most akin to an unelaborated per curiam opinion or order merely citing another decision, and this Court has ruled that it does not have extraordinary writ jurisdiction over such opinions and orders. See Persaud v. State, 838 So.2d 529 (Fla.2003) (stating that this Court lacks discretionary review jurisdiction to review per curiam decisions of the district courts that simply affirm with citations to cases not pending review in this Court, and that extraordinary writs also cannot be used to seek review of such decisions); see also Dodi Publ’g Co. v. Editorial Am., S.A., 385 So.2d 1369 (Fla.1980), and Jollie v. State, 405 So.2d 418 (Fla.1981) (together standing for proposition that this Court lacks jurisdiction to review per curiam opinions citing a case not pending review in this Court).

The majority’s action in this case is truly unprecedented. The majority is simply guessing at what the First District’s opinion will state as the basis for its ruling in order to engage in the active trial management of evidentiary rulings that are subject to the jurisdiction of Florida’s district courts of appeal. Moreover, by requiring admission of the evidence at issue, rather than a proffer pending review by this Court of the yet-issued First District opinion, the majority has adjudicated the opinion not yet written to be in error. In short, this Court has predetermined appellate error and awarded the petitioners full relief in the trial court by requiring admission of evidence. Such action does not act to protect this Court’s jurisdiction; it expands it outside the bounds of the constitution.

Accordingly, I respectfully dissent.

CANADY, J., concurs.

      . Indeed, the opinion granting the petition demonstrates it is highly likely that this Court will have jurisdiction to review the forthcom-mg opinion by the district court. See majority op. at 513-14.


author: PER CURIAM. LABARGA, J.,

text:
    THE FLORIDA BAR, Complainant, v. David Leonard ROSS, Respondent.
    No. SC11-1106.
    Supreme Court of Florida.
    May 29, 2014.
    John F. Harkness, Jr., Executive Director, Adria E. Quíntela, Staff Counsel, and Allison Carden Sackett, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Andrew Scott Berman of Young, Ber-man, Karpf & Gonzalez, P.A., Miami, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent David Leonard Ross be found guilty of professional misconduct. The referee recommended a sanction of a six-month suspension. We approve the referee’s findings of fact and recommendations of guilt; however, we disapprove the referee’s recommended sanction. Based on case law and the Florida Standards for Imposing Lawyer Sanctions, we conclude that the appropriate sanction is a three-year suspension.

BACKGROUND

The Florida Bar filed a two-count complaint against Respondent David Leonard Ross alleging that he engaged in several acts of misconduct. A referee was appointed to hold hearings and provide a report to the Court. In the report, the referee made the following findings of fact and recommendations.

Respondent is a resident of California and a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. He is licensed to practice law in Florida and in the United States District Court for the Central District of California, but not licensed to practice in California state courts.

Count I — Client’s Retainer. On or about February 3, 2006, Respondent was retained to represent a client in an administrative proceeding. The client was subject to a potential suspension from her employment due to a reprimand she had received at work. She signed a retainer agreement with Respondent. He was paid a $10,000 retainer from which Respondent would be paid based upon billing at an hourly rate.

Respondent filed a response in that administrative proceeding on May 1, 2006, and requested a hearing. However, shortly before the hearing scheduled in June 2006, the client resigned from her position. She immediately informed Respondent’s office that his services were no longer required as she was now pursuing an EEOC claim. She requested an accounting and a final bill from Respondent’s office. No response was ever received.

In addition, on at least four occasions between February 2007 and May 2007, the client requested an accounting, a final billing, and that Respondent close her account. The client received a brief e-mail response from Respondent, but she never received a response to her request for a final billing.

On January 22, 2008, the client’s subsequent attorney, Mr. Phillips, sent a certified letter, return receipt requested, to Respondent, again requesting a final accounting and demanding the return of the remaining retainer. Respondent signed the return receipt form, but did not respond to Phillips’s request. On April 18, 2008, the client sent Respondent an e-mail in which she stated that it had been over twenty months since she first requested the final billing statement and the closing of her account. By e-mail, Respondent replied that he thought his paralegal had resolved the problem and that he would “speak with [the paralegal] on Wednesday.” After a week passed with no response, the client informed Respondent that she had not heard from anyone in his office, and requested that he call her the next day. However, despite the ongoing efforts to contact Respondent, neither the client nor Phillips received a response until Respondent sent Phillips an e-mail on September 26, 2008. In that message, Respondent stated that he had moved offices, his previous firm had dissolved, and “although not technically obligated,” he would send a check for $5,000 at the end of the following week. The client and Phillips did not receive anything from Respondent.

On November 30, 2009, the client filed a complaint with The Florida Bar. On December 15, 2009, Respondent sent her a cashier’s check for $5,000, but he never provided her with a final billing or accounting for the money withheld.

Count II — Forged, a Signature on a Court Filing. Respondent was involved in an acrimonious family matter in California regarding his elderly aunt, who was a recent widow, and numerous relatives, including his aunt’s great-nephew named Rubin, who was serving as a co-trustee of the aunt’s trust. Respondent believed Rubin was abusing his aunt both physically and financially.

In September 2009, Respondent filed a legal action in the United States District Court for the Central District of California against the conservator and trustees of his aunt’s trust, which included Rubin. He filed the action on behalf of himself and four other relatives. Respondent listed himself as appearing “per pro” and the attorney for the other four relatives was listed as an attorney named Waddington. However, Respondent had actually forged Waddington’s signature in the legal papers. Although Waddington later stated that he would have been willing to represent the relatives after meeting with them and obtaining a retainer agreement, he had never given Respondent permission to represent to the court that Waddington was attorney of record at the time of filing the complaint or permission to sign Wad-dington’s name.

The United States District Court issued an Order to Show Cause and scheduled a hearing on the issues for October 5, 2009. At that hearing, the court entered an order dismissing the action in its entirety for being improperly filed with the unauthorized and forged signature of Waddington, which had falsely placed Waddington as attorney of record. The court continued the hearing on the Order to Show Cause for further proceedings against Respondent. Thereafter, at a subsequent hearing on the issues in December 2009, the court found Respondent in contempt for filing the complaint with a forged signature, and ordered him to pay sanctions to the court of $5,000 and attorneys’ fees for Wadding-ton and defense counsel. Respondent filed an appeal in the Ninth Circuit Court of Appeals but the appeal was dismissed for failure to file an opening brief.

Recommendations as to Guilt and Discipline. The referee recommends that the Court find Respondent guilty of violating Bar rules 4-1.4 (communication with client); 4-1.16(a)(3) (when lawyer must decline or terminate representation); 4-3.3(a)(1) (knowingly making a false statement of fact or law to a tribunal); 4-8.4(a) (violating or attempting to violate the Rules of Professional Conduct); 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (conduct prejudicial to the administration of justice).

With regard to aggravating factors, the referee found: (1) prior disciplinary offenses — a thirty-day suspension imposed in 2001; and (2) substantial experience in the practice of law — Respondent was admitted to practice in 1982. In mitigation, the referee found: (1) absence of a dishonest or selfish motive; (2) imposition of other penalties or sanctions; and (3) remorse.

The referee recommends that the Court suspend Respondent for six months from the practice of law in Florida. In addition, the referee recommended that The Florida Bar be awarded costs in the amount of $1,785.66.

On Review. Respondent sought review before this Court. He argues that the referee should have given more weight to the three mitigating factors. Next, he challenges the referee’s recommended sanction of a six-month suspension. Respondent claims that the referee’s recommended sanction is too severe and not supported by case law. Finally, Respondent asserts that the referee adopted the draft report provided by the Bar and thereby violated his due process rights.

ANALYSIS

First, Respondent argues that the events surrounding his misconduct, which include the pressure he was under from his family to assist his elderly aunt, demonstrate that the referee should have given more weight to the three mitigating factors when recommending the sanction. Respondent claims that the referee’s report does not provide sufficient facts regarding the family situation that existed when he filed the complaint with the forged signature. In contrast to Respondent’s assertions, the Report of Referee clearly states that Respondent was involved in an extremely distasteful family matter involving his elderly aunt, who was a recent widow, and numerous relatives including Rubin. Further, the referee states that Respondent believed Rubin was abusing the aunt both physically and financially. Thus, the referee provided the relevant information in his report for this Court’s consideration.

' Despite the referee’s sufficient findings of fact, which are supported by the record, Respondent attempts to add his version of the facts to explain his misconduct of forging the signature of attorney Waddington on the complaint. Respondent’s description of the facts goes far beyond the facts found by the referee. A party cannot meet its burden by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee’s findings. Fla. Bar v. Committe, 916 So.2d 741, 746 (Fla.2005); Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997).

Here, the referee found: (1) absence of a dishonest or selfish motive; (2) imposition of other penalties or sanctions; and (3) remorse. See Fla. Stds. Imposing Law. Sanes. 9.32(b), (k), and (l). Before this Court, Respondent seeks to bolster the weight of these mitigating factors by providing more detail regarding the underlying events. However, the referee found the mitigating factors based on the same underlying events and gave them substantial weight. The referee examined the lengthy suspensions in case law and then recommended a lenient suspension of six months. Accordingly, Respondent has failed to show that these mitigating factors merit additional weight.

Second, Respondent asserts that the referee’s recommended sanction of a six-month suspension is not supported by existing case law and the Standards. He claims that the appropriate sanction ranges from a public reprimand to a suspension of less than thirty days. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Respondent has engaged in serious misconduct. In Count I, he refused to provide the client with an accounting of the funds held on retainer, despite repeated requests from both the ex-client and her new counsel. Also, after the client discharged Respondent, he did not return any of her funds for years, even though she sought return of her funds numerous times. In Count II, Respondent knowingly filed a fraudulent document in court. See Fla. Bar v. Kickliter, 559 So.2d 1123 (Fla.1990) (respondent disbarred for forging his client’s signature on a will when the client had died without signing the document). “Generally, the Court has imposed harsh punishment on lawyers who intentionally lie under oath, lie to the court, or present false or forged documents.” Fla. Bar v. Klausner, 721 So.2d 720, 721 (Fla.1998) (attorney suspended for three years for filing fraudulent documents in court) (emphasis added). Not only did Respondent file a document with a forged signature in a court, he sought to make Wad-dington responsible for representation of the four family members. At the time, Waddington had not agreed to representation and was unaware of the filing. Forging the signature of an attorney in a legal action is not only unacceptable, it is outrageous. If lawyers and the public cannot rely upon the authenticity of legal papers, the very foundation of our legal system becomes fractured and unsustainable. This is not a simple mistake or negligent conduct, this was an intentional grievous act.

Based on these facts, the referee recommends that Respondent be found guilty of violating six Bar rules. Three of those Bar rules address dishonest conduct, which are Bar rules 4-3.3(a)(l) (knowingly making a false statement of fact or law to a tribunal); 4-8.4(e) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (conduct prejudicial to the administration of justice). Respondent has engaged in severely dishonest conduct. He knowingly filed a document that was fraudulent by forging the signature of another attorney on that document. Thus, he intentionally made a false statement of fact to a tribunal because his complaint indicated that Wad-dington was representing the four relatives (violation of Bar rule 4-3.3(a)(l)). This also constitutes conduct involving dishonesty, fraud, deceit, or misrepresentation because he was dishonest to opposing counsel (Bar rule 4-8.4(c)) and conduct prejudicial to the administration of justice (Bar rule 4-8.4(d)). The Court has repeatedly stated that “basic fundamental dishonesty ... is a serious flaw, which cannot be tolerated.” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002). “Dishonest conduct demonstrates the utmost disrespect for the court and is destructive to the legal system as a whole.” Fla. Bar v. Head, 27 So.3d 1, 8-9 (Fla.2010). Misrepresentations and dishonesty warrant severe discipline. See Fla. Bar v. Hall,

49 So.3d 1254 (Fla.2010) (attorney disbarred for engaging in fraudulent conduct in her personal affairs by recording a forged document in the county court clerk’s office); Fla. Bar v. Vining, 707 So.2d 670 (Fla.1998) (imposing a three-year suspension for misrepresentations in a stipulation submitted to the court while seeking funds in the court registry); Fla. Bar v. Cramer, 678 So.2d 1278 (Fla.1996) (attorney disbarred for forging another person’s signature on forms to lease computer and office equipment as part of a fraudulent scheme); Fla. Bar v. Segal, 663 So.2d 618 (Fla.1995) (imposing a three-year suspension for making a false statement in a petition for discharge submitted to probate court); Fla. Bar v. Kleinfeld, 648 So.2d 698 (Fla.1994) (imposing a three-year suspension for making false statements in an affidavit seeking disqualification of a judge in a contempt hearing against the attorney, among other things); Fla. Bar v. Solomon, 589 So.2d 286 (Fla.1991) (along with other misconduct, respondent disbarred for forging his deceased mother’s signature on a homestead tax exemption application and forging both of his deceased parents’ signatures on a homestead application). In addition, discipline must protect the public from unethical conduct, must be fair to a respondent yet sufficient to sanction the misconduct and encourage reformation and rehabilitation, and must be severe enough to deter others who might be prone or tempted to become involved in like violations. See Fla. Bar v. Jasperson, 625 So.2d 459, 463 (Fla.1993). Florida lawyers should not and cannot be allowed to forge signatures on legal papers.

Next, despite Respondent’s efforts to. minimize the misconduct found in Count' I, the facts show that he held money belonging to his client for three years and he never provided her with a proper accounting for the $5,000 that he did not return. In approximately June 2006, the client informed Respondent’s office that his services were no longer required. She requested' an accounting of her $10,000 retainer, a final bill, and a return of the remaining funds. Although there were several communications from the client to Respondent, it was not until after she filed a Bar complaint in November 2009 that Respondent refunded the client’s $5,000. She had requested the return of her funds in the summer of 2006, but Respondent did not return the funds until December 2009, which was three years after her initial request. Respondent was extremely neglectful in his duties owed as an attorney. Prompt and- competent attention to legal matters is a paramount.duty of the legal profession. See Fla. Bar v. Morse, 784 So.2d 414, 416 (Fla.2001). Respondent’s failure to respond to the client’s direction and failure to return her $5,000 for three years, along, with his complete failure to provide a proper accounting of the billing of- the other $5,000, is grave misconduct. “[EJvery legal matter, no matter how small, deserves the diligence and proficiency the public expects from a Florida lawyer.” Id.

A lawyer is required to promptly deliver to a client any funds that a client is entitled to receive. In Florida Bar v. Grosso, 760 So.2d 940 (Fla.2000), the respondent failed to promptly return property to a client, despite the client’s repeated requests. In Grosso, like the current case, “there [was] no allegation of intentional misappropriation of property by respondent. The record reflects that respondent was negligent to the point of incompetence in failing to return his client’s property after repeated requests.” Grosso, 760 So.2d at 943. The respondent had been holding property (guns) for his client, while the client was on probation. Id. at 941. Once the client was able to legally resume possession of his guns, he repeatedly asked Grosso to return them. Id. Grosso did not resolve his client’s request for approximately eighteen months, for which he received a ninety-day suspension. Id. at 943. The Court noted that “the Florida Standards for Imposing Lawyer Sanctions and the Rules Regulating The Florida Bar make no distinction between client funds and client property in providing discipline for misconduct relating to client ‘property’ or ‘funds and property.’ ” Id. at 942-43. In comparison to Grosso, Respondent ignored requests by the client’s subsequent attorney for an accounting and return of the remaining funds, he did not return any funds to the client for three years (he delayed until after she filed the Bar complaint), he never provided a proper accounting for the $5,000 he kept as payment, and he engaged in the additional misconduct found in Count II.

Further, as the referee noted, Respondent has a disciplinary history. He was previously suspended for thirty days in another disciplinary case. See Fla. Stds. Imposing Law. Sanes. 9.22(a) (prior disciplinary offenses are aggravating factors considered in determining the appropriate discipline).

Accordingly, based upon the case law and Standards, we find that the referee’s recommended sanction of a six-month suspension is not supported. We disapprove the referee’s recommended discipline and find that the appropriate sanction is a three-year suspension.

CONCLUSION

Accordingly, we approve the referee’s findings of fact and recommendations as to guilt. We disapprove the referee’s recommended sanction of a six-month suspension and impose a three-year suspension. The suspension shall be effective thirty days from the filing of this opinion so that Respondent David Leonard Ross can close out his practice and protect the interests of existing clients. If Respondent Ross notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Respondent Ross shall fully comply with Rule Regulating the Florida Bar 8 — 5.1(h), “Notice to Clients.” Further, Respondent Ross shall accept no new business from the date of this opinion until he proves rehabilitation and is reinstated to The Florida Bar.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Respondent David Leonard Ross in the amount of $1,785.66, for which sum let execution issue.

It is so ordered.

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

LABARGA, J., dissents with an opinion in which CANADY, J., concurs.

LABARGA, J.,

dissenting.

The majority opinion aptly describes Respondent’s conduct as follows: “Respondent has engaged in serious misconduct.” “Respondent’s failure to respond to the client’s direction and failure to return her $5,000 for three years, along with his complete failure to provide a proper accounting of the other $5,000, is grave misconduct.” “Not only did Respondent file a document with a forged signature in a court, he sought to make Waddington responsible for representation of the four family members.” “Forging the signature of an attorney in a legal action is not only unacceptable, it is outrageous.” “If lawyers and the public cannot rely upon the authenticity of legal papers, the very foundation of our legal system becomes fractured and unsustainable.” “This is not a simple mistake or negligent conduct, this was an intentional grievous act.” “Respondent has engaged in severely dishonest conduct.” Maj. op. at 522. I could not agree more with these observations. However, because I agree so strongly with these observations, I dissent from the majority’s conclusion that a three-year suspension is an adequate sanction for the egregious misconduct committed by Mr. Ross.

In Count I, for three years, Mr. Ross withheld client funds, avoided client communication, and engaged in delay tactics so as to avoid reimbursing the funds. The egregiousness of Mr. Ross’s conduct is found not only in his repeated efforts to evade his client, but in the protracted period of time over which this misconduct occurred. What is more, despite repeated requests, to this day, Mr. Ross has not provided the client with an accounting of the remaining $5000 that he did not reimburse.

In Count II, Mr. Ross forged an attorney’s signature on a complaint filed in court. This most serious act of dishonesty simply cannot be excused by his troubles with his family members. This act alone is grounds for disbarment. See Florida Bar v. Kickliter, 559 So.2d 1123, 1124 (Fla.1990) (disbarring attorney for forging client’s signature on a will and submitting the document for probate, despite the “absence of a dishonest or selfish motive.”). The cumulative nature of Mr. Ross’s conduct, which led to a finding of six serious violations of the Rules Regulating the Florida Bar, warrants disbarment.

Although a sanction that provides an opportunity for rehabilitation is often an appropriate way to address attorney misconduct, the circumstances of this case militate against such consideration. First, Mr. Ross has been an attorney for more than three decades. Rather than operate as a factor in favor of leniency, his length of experience actually aggravates the nature of his conduct because he cannot rely on inexperience or lack of knowledge as to the high standards held for attorneys. Second, Mr. Ross’s disciplinary history reflects a prior thirty-day suspension. See Florida Bar v. Ross, 797 So.2d 589 (Fla.2001) (table). Therefore, the conduct for which Mr. Ross is now held to account leaves significant doubt as to any prospect of rehabilitation. Combined with his prior history of disciplinary action, Mr. Ross’s unacceptable acts of misconduct lead me to the inescapable conclusion that disbarment is the appropriate remedy. Therefore, I dissent.

CANADY, J., concurs.

      . We have jurisdiction. See art. V, § 15, Fla. Const.

      . When recommending the sanction, the referee relied upon the Florida Standards for Imposing Lawyer Sanctions. Specifically, the referee relied upon Standards 6.12 “Violations of Duties Owed to the Legal System; False Statements, Fraud, and Misrepresentation,” 6.22 "Violations of Duties Owed to the Legal System; Abuse of the Legal Process,” and 7.2 “Violations of Other Duties Owed as a Professional,” which indicate that the appropriate discipline is a suspension. The referee’s application of the Standards is supported by competent, substantial evidence in the record.

      . In'contrast to these cases, Respondent relies heavily on Florida Bar v. Kauffman, 498 So.2d 939 (Fla.1986), in asserting that a thirty-day suspension is the most severe sanction that should be imposed. In making this argument, Respondent patently fails to acknowledge the facts in his case, and the extent and seriousness of his misconduct.

      . Respondent is unsupported in arguing that the three mitigating factors are sufficient to reduce his egregious acts of misconduct to the sanction of a public reprimand or a thirty-day suspension.

      . Respondent also argues that the referee violated his due process rights by asking The Florida Bar to prepare a draft report of referee. However, Respondent admits that he was informed of the referee’s request and Respondent was permitted to submit his edited version of a draft report. Due process in a Bar proceeding is satisfied when an attorney is provided notice and an opportunity to be heard. See Fla. Bar v. Head, 27 So.3d 1, 7 (Fla.2010). Moreover, in Florida Bar v. Miller, 863 So.2d 231 (Fla.2003), the Court noted that the comment to Canon 3(B)(7) of the Florida Code of Judicial Conduct provides that a "judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.” Id. at 235-36. The record indicates that the referee complied with this comment. In addition, the report demonstrates the referee’s judicial input because the referee’s report found aggravating and mitigating factors and, while the Bar sought a one-year suspension, the referee's report recommended a six-month suspension.


text:
    Lamont TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-2318.
    Supreme Court of Florida.
    May 29, 2014.

      John R. Hamilton of Foley & Lardner LLP, Orlando, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Wesley Heidt, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the Fifth District Court of Appeal’s decision in Taylor v. State, 96 So.3d 989 (Fla. 5th DCA 2012), which the Fifth District certified is in direct conflict with the decisions of the First District Court of Appeal in Slocum v. State, 95 So.3d 911 (Fla. 1st DCA 2012), and the Second District Court of Appeal in Cooper v. State, 667 So.2d 932 (Fla. 2d DCA 1996). The certified conflict issue presented in this case is whether an order disposing of a postconviction motion which partially denies and partially grants relief is a final order for purposes of appeal, when the relief granted requires subsequent action in the underlying case, such as resentenc-ing. For the reasons explained below, we hold that an order which partially denies and partially grants postconviction relief is a final order for purposes of appeal, even if the relief granted requires subsequent action in the underlying case. Therefore, we quash the Fifth District’s decision in Taylor and disapprove its decision in Cervino v. State, 785 So.2d 631 (Fla. 5th DCA 2001), to the extent it is inconsistent with this opinion. We approve the Second District’s decision in Cooper and the First District’s decision in Slocum to the extent these decisions are consistent with our analysis and holding.

I. BACKGROUND

In 2003, Lamont Taylor was charged with: (1) trafficking in 400 grams or more of cocaine; (2) possession of cocaine with intent to sell or deliver; (3) delivery of cocaine; (4) possession of more than 20 grams of marijuana; and (5) possession of drug paraphernalia. The State nolle prose-quied the delivery of cocaine charge, and Taylor pleaded no contest to the remaining charges. He was sentenced to twenty-two years in prison, and the Fifth District affirmed his convictions and sentences on direct appeal. Taylor v. State, 923 So.2d 514 (Fla. 5th DCA 2006) (table).

Subsequently, Taylor, acting pro se, filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 arguing, among other things, that his trial counsel was ineffective for failing to advise him that his convictions for trafficking in cocaine and possession of cocaine with intent to sell or deliver violated the Double Jeopardy Clause. After an eviden-tiary hearing on this claim, the trial court determined that relief was warranted in part because the State admitted that it had inadvertently nolle pressed the wrong charge. Since this error changed the minimum guideline sentence, the trial court concluded that Taylor needed to be resen-tenced. Accordingly, on March 31, 2009, the trial court entered an order partially granting relief on Taylor’s sentencing claim and denying relief as to Taylor’s other postconviction claims.

Fifteen days later, Taylor filed a timely motion for rehearing challenging the denial of his other postconviction claims. While this rehearing motion was pending, the trial court proceeded with Taylor’s re-sentencing on April 21, 2009, sentencing him to fifteen years in prison. Taylor, again acting pro se, filed a notice of appeal from the resentencing on May 21, 2009. At this time, no ruling had ever been issued with regard to the rehearing motion that he previously filed on April 15, concerning the denial of his other postconviction claims. On March 8, 2011, the Fifth District issued a per curiam opinion affirming Taylor’s new sentence. Taylor v. State, 56 So.3d 785 (Fla. 5th DCA 2011) (table).

Thereafter, on July 10, 2011, Taylor, acting pro se, filed an amended motion for rehearing regarding the trial court’s March 2009 order denying his other post-conviction claims. The trial court initially denied this motion as untimely on the ground that a rehearing motion had not been filed within 15 days of the order disposing of Taylor’s postconviction motion. However, upon receiving Taylor’s emergency motion for clarification, the trial court recognized its error and acknowledged that Taylor had filed a timely motion for rehearing on April 15, 2009, which the trial court had never ruled upon. Accordingly, the trial court addressed the merits of the rehearing motion and denied relief. Taylor appealed.

The Fifth District dismissed the appeal for lack of jurisdiction, relying on its prior decision in Cervino, 785 So.2d at 632, which held that a trial court’s order partially denying and partially granting post-conviction relief by ordering resentencing was not a final appealable order because the resentencing required further judicial labor in the underlying case. Taylor, 96 So.3d at 991-93. The Fifth District explained that “Cervino appears to more faithfully follow the supreme court’s rule of finality and policy [of] preventing piecemeal appeals,” and therefore, “conclude[d] that the trial court’s March 31, 2009, order was not a final, appealable order.” Id. at 993. Thus, the Fifth District determined that the trial court’s order was not final until after Taylor’s resentencing was completed on April 21, 2009, and Taylor should have raised any issues related to the disposition of his other postconviction claims on appeal after resentencing. Id. In so holding, the Fifth District certified that its decision conflicted with the First District’s decision in Slocum and the Second District’s decision in Cooper, which held that “[a]n order denying in part and granting in part relief ... marks the end of the judicial labor which is to be expended on the motion, and the order is final for appellate purposes.” Id. at 991, 993 (quoting Cooper, 667 So.2d at 933); see also Slocum, 95 So.3d at 913.

II. ANALYSIS

We agree with the Second District in Cooper and the First District in Slocum that an order disposing of a post-conviction motion which partially denies and partially grants relief is a final order for purposes of appeal, even if the relief granted requires subsequent action in the underlying case, such as resentencing. As the Second District fully explained in Cooper, 667 So.2d at 933,

[a]n order which denies a claim in a postconviction motion and grants an evi-dentiary hearing on a different claim in the same motion is not appealable until all issues raised have been ruled upon by the court.... An order denying in part and granting in part relief, however, marks the end of the judicial labor which is to be expended on the motion, and the order is final for appellate purposes.

This conclusion is consistent with our recent amendments to Florida Rule of Criminal Procedure 3.850, effective July 1, 2013, which added subsection (f)(8)(C), stating that “[t]he order issued after the evidentiary hearing shall resolve all the claims raised in the motion and shall be considered the final order for purposes of appeal.” In re Amendments to the Fla. Rules of Criminal Procedure & the Fla. Rules of Appellate Procedure, 132 So.3d 734, 750 (Fla.2013).

We disagree with the State’s contention that permitting a postconviction appeal to proceed separately from a resen-tencing appeal will encourage piecemeal litigation because, as we have previously explained in other cases, postconviction proceedings and resentencing proceedings are separate, legally discrete proceedings. See State v. Collins, 985 So.2d 985, 989 (Fla.2008) (“In both capital and noncapital cases, we have held that resentencing is a new proceeding [and] that ‘resentencing entitles the defendant to a de novo sentencing hearing with the full array of due process rights.’ ” (quoting Trotter v. State, 825 So.2d 362, 367-68 (Fla.2002))). Thus, because resentencing is an entirely new, independent proceeding, an appeal from the underlying postconviction proceeding does not foster piecemeal litigation or waste judicial resources.

Accordingly, the trial court’s order partially denying and partially granting Taylor postconviction relief was a final ap-pealable order, even though resentencing remained to be completed in the underlying case.

III. CONCLUSION

For the reasons explained above, we quash the Fifth District’s decision in Taylor and disapprove its decision in Cervino to the extent it is inconsistent with this opinion. We further approve the Second District’s decision in Cooper and the First District’s decision in Slocum to the extent these decisions are consistent with our analysis and holding. Finally, we remand this case to the Fifth District for further proceedings consistent with this opinion.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . This is a pure question of law subject to de novo review. See Keck v. Eminisor, 104 So.3d 359, 363 (Fla.2012) (explaining that the standard of review for pure questions of law is de novo).

      . We note that this type of delay will not occur in the future due to recent amendments to Florida Rule of Criminal Procedure 3.850 providing that "[t]he trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. If no order is filed within 40 days, the motion is deemed denied.” Fla. R.Crim. P. 3.850(j) (previously designated as Fla. R.Crim. P. 3.850(h)).