author: BURKE, Judge.

text:
    William Darnell KIDD v. STATE of Alabama.
    CR-10-1487.
    Court of Criminal Appeals of Alabama.
    April 27, 2012.
    Rehearing Denied June 22, 2012.

      Bradley Allen Hawley, Prattville, for appellant.
    Luther Strange, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   BURKE, Judge.

William Darnell Kidd was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced as a habitual felony offender to life imprisonment. He was ordered to pay court costs and a $50 assessment to the Crime Victims Compensation Fund. This appeal follows.

The evidence at trial established that on July 2, 2009, Kidd went to the home of the victim, William Hampton, and, after a brief argument, shot him in the chest. Hampton later died as a result of the wounds. There was conflicting testimony about the events leading up to and surrounding the shooting. Kidd asserted that Hampton pointed a gun at him and that he shot Hampton only in self-defense. However, the State presented two witnesses who testified to the contrary. One witness stated that, as far as he could tell, Hampton was unarmed. (R. 142.) However, another witness testified that Hampton was armed but that Hampton’s gun did not have a clip in it. (R. 218.)

Kidd testified at trial. He stated that he and Hampton were friends and that he went to Hampton’s house that day to “check up on him.” (R. 244.) Kidd stated that he was armed with a .40 caliber pistol that day and that Hampton asked if he could have the weapon. (R. 249-50.) Apparently, Hampton had a .45 caliber pistol but wanted to trade guns with Kidd because Kidd’s gun could hold more bullets. According to Kidd, an argument began when he refused to give Hampton the .40 caliber pistol. (R. 250.) However, Kidd eventually decided to give the gun to Hampton. Kidd stated: “After we argued about that, I put the gun — I say, ‘Here, Bro, take this shit.’ So when I give him the .40 caliber he hands me the .45. When he handed me the .45,1 put the gun on my waistline.” (R. 252.) Kidd testified that, as he turned around to leave, he heard someone yell, “Shoot that nigger,” at which point he turned around to find Hampton pointing the .40 caliber at him. (R. 257.) Kidd then pulled out the .45 caliber pistol and shot Hampton. He testified that Hampton had a reputation for violence and he felt like he had to shoot Hampton or else he would have been killed. (R. 258.) Kidd admitted that, at the time of the shooting, he was a convicted felon and was aware that he was violating the law by carrying a gun. (R. 262.)

On appeal, Kidd argues that the trial court’s jury instruction regarding self-defense was misleading because, he says, it was contrary to the plain language of § 13A-3-23, Ala.Code 1975, Alabama’s self-defense statute. Additionally, he contends that his trial was unfair because of certain remarks made by the State during its closing argument.

I.

Under Alabama law, a person is justified in using deadly physical force against another person if he or she reasonably believes that the other person is “using or [is] about to use unlawful deadly physical force.” § 13A-3-23(a)(l), Ala.Code 1975. Furthermore, a person who is justified in using deadly physical force pursuant to § 13A-3-23(a) has no duty to retreat and has the right to stand his or her ground as long as the person “is not engaged in an unlawful activity.” § 13A-3-23(b), Ala. Code 1975. On appeal, Kidd argues that the trial court’s jury instruction on self-defense was misleading because, he says, it was contrary to the plain language of § 13A-3-23(b). (Kidd’s brief, at 9.)

However, the trial court gave the following jury instruction in relation to self-defense: “A person who is justified in using physical force, including deadly physical force and who is not engaged in an unlawful activity and is in a place where he has a right to be, has no duty to retreat under our law, and has the right to stand his ground.” (R. 343.) This jury instruction essentially tracks the language of § 13A-3-23(b), Ala. Code 1975, which states:

“A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.”

This jury instruction is not contrary to the plain language of the statute.

It appears that Kidd’s argument revolves around the meaning of the phrase, “unlawful activity.” At trial, the State contended that, because Kidd was a felon in possession of a firearm, he was engaged in an unlawful activity and therefore had a duty to retreat under § 13A-3-23(b). On appeal, Kidd argues that the “unlawful activity” mentioned in § 13A-3-23(b), refers only to the crimes enumerated in § 13A-3-23(a)(3), i.e., “kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy.” See § 13A-3-23(a)(3), Ala.Code 1975. Therefore, according to Kidd, the court’s jury instruction, which failed to define “unlawful activity,” imposed upon him a duty to retreat that did not exist. However, this argument was not raised at trial; therefore, it is not preserved for appellate review.

“ ‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’ Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). ‘“[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” ’ McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted). ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). ‘The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.’ Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994).”

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.2003).

The trial court held a lengthy discussion regarding jury instructions on self-defense after which defense counsel stated: “We have no objection.” (R. 305.) After the court gave the jury instructions and asked for exceptions, defense counsel stated:

“I will go on record as saying we had an off-the-record discussion about the duty to retreat and how that might spring back into action based on the allegation that [Kidd] was involved in an unlawful activity and, therefore, had no right to stand his ground.
“I would just ask that you give the jury some instruction on the duty to retreat and the law as it [is] used to apply to the duty to retreat prior to the amendment of the self defense statute.
“In other words, the — If he reasonably believed that he could not retreat in complete safety, I think that might be appropriate here. I just state that for the record.”

(R. 355-56.) Thus, Kidd’s objection did not relate to the court’s failure to define “unlawful activity” and the resulting duty to retreat the instruction placed on him. Rather, his argument was that the court should have given further instruction on the duty to retreat. Accordingly, Kidd’s argument was not presented to the trial

court and is therefore not preserved for appellate review.

Moreover, Kidd does not cite any authority for his position that an “unlawful activity,” as that term is used in § 13A-3-23(b), is limited to the crimes enumerated in § 13A-3-23(a)(3). The commentary to § 13A-3-23, Ala.Code 1975, states:

“Subsection (b) further qualifies the use of deadly force.
“... [T]he defendant who is not required to retreat because of the location of the attack must not have brought on the difficulty, i.e., was the original aggressor. This provision codifies Alabama law requiring complete freedom from fault in provoking the difficulty for one who claims defense of self, Brewer v. State, 160 Ala. 66, 49 So. 336 (1909), and conforms to contemporary revisions.”

In the present case, Kidd’s unlawful possession of the firearm contributed to the argument that eventually led to the shooting. Accordingly, he was not entirely free from fault. Therefore, § 13A-3-23(b) imposed a duty to retreat upon Kidd, and the trial court’s jury instruction to that effect was appropriate.

II.

Kidd also contends that the State made several prejudicial comments during closing arguments. Specifically, he refers to the prosecutor’s reference to the fact that Kidd, by being in possession of a firearm, was engaged in an unlawful activity. Kidd argues that the comments were unduly prejudicial because, he says, they were an incorrect statement of the law as it relates to self-defense. However, no objections were made during the State’s closing arguments. For the reasons stated regarding the issue disposed of in the previous section, this argument is likewise not preserved for appellate review. See Ex parte Coulliette, supra. Additionally, because we have determined that the trial court’s jury instruction relating to self-defense was a correct statement of the law, this argument is also without merit.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

WINDOM, P. J., and WELCH and KELLUM, JJ., concur. JOINER, J., concurs in the result.

      . William Hampton is also referred to in the record by the nickname "Red.”

        . During the charge conference, the prosecutor stated: "That would be my reading of [§ 13A-3-23](b). If he is not engaged in unlawful activity, then he has no duty to retreat and has the right to stand his ground. I think the converse would be, if he is engaged in unlawful activity, he has a duty to retreat and does not have the right to stand his ground.” (R. 301-02.)


source: Caselaw Access Project

author: PER CURIAM. MURDOCK, Justice

license: Public Domain

text:
    Ex parte William Darnell KIDD. (In re William Darnell Kidd v. State of Alabama).
    1111270.
    Supreme Court of Alabama.
    Sept. 7, 2012.
    Bradley A. Hawley, Prattville, for petitioner.

       Justice Main was a member of the Court of Criminal Appeals when that court considered this case.

   PER CURIAM.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and WOODALL, BOLIN, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

MAIN, J., recuses himself.

MURDOCK, Justice

(concurring specially).

The Court of Criminal Appeals concluded that William Darnell Kidd did not preserve for appellate review his contentions (a) that the trial court erred in failing to give an adequate or proper jury instruction defining the phrase “unlawful activity” as that term is used in § 13A-3-23(b), Ala.Code 1975, and (b) that the prosecutor made improper, prejudicial statements to the jury in regard to the same “unlawful activity” issue. Kidd v. State, 105 So.3d 1261 (Ala.Crim.App.2012). This Court now denies certiorari review, but states that in doing so we are not to be understood as agreeing with all the legal analysis in the opinion of the Court of Criminal Appeals. I write separately to express my reason for concurring in the denial of cer-tiorari review as well as my reason for not wanting to be understood as agreeing with all the legal analysis in the Court of Criminal Appeals’ opinion.

In the last paragraph of Part I and the last sentence of Part II of its opinion, the Court of Criminal Appeals announced certain conclusions as to the merits of Kidd’s argument regarding the meaning of the term “unlawful activity” in § 13A-3-23(b). Those passages appear to address a question of first impression with respect to which the court below offers a conclusion without the benefit of any analysis or authority. It can be argued that the quotation from the commentary to § 13A-3-23(b) set out in the penultimate paragraph of Part I of the Court of Criminal Appeals’ opinion comes closer to describing what the legislature intended by the term “unlawful activity.” That is, it appears that a reasonable argument can be made that the legislature intended there to be a nexus between the “unlawful activity” — here, the mere possession of a gun — and the need to act in self-defense.

Based on the foregoing, I do not wish to be understood as agreeing with the conclusion stated by the Court of Criminal Appeals as to the meaning of the term “unlawful activity” in § 13A-3-23(b) and its application to facts such as those presented in this case. That said, I concur in denying the petition for the writ of certio-rari because I agree with the conclusion of the Court of Criminal Appeals that the two issues described in the first paragraph of this writing were not preserved for appellate review.


author: PER CURIAM.

text:
    In re AMENDMENTS TO the FLORIDA RULES OF TRAFFIC COURT.
    No. SC12-38.
    Supreme Court of Florida.
    Dec. 20, 2012.
    David Ashley Haenel, Chair, Traffic Court Rules Committee, Finebloom and Haenel, Sarasota, FL, and Jill Marie Hampton, Past-Chair, Traffic Court Rules Committee, Private Counsel, LLC, Orlando, FL, and William Abramson, West Palm Beach, FL; John F. Harkness, Jr., Executive Director and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Steven Dennis Rubin, Boca Raton, FL; Judge Sharon L. Zeller, Administrative County Court Judge, Fort Lauderdale, FL, on behalf of the County Court Judges and Traffic Hearing Officers of the Seventeenth Judicial Circuit; Judge Debra Roberts, Chair, Traffic Court Rules Committee of the Conference of County Court Judges of Florida, New Port Richey, FL; and Judge Robert Williams Lee, Conference Traffic Rules Committee, Fort Laud-erdale, FL, Responding with comments.
   REVISED OPINION

PER CURIAM.

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

We issue this revised opinion to address the enactment of new legislation that affects our analysis of the proposed amendments to rule 6.600(c). We also address the inadvertent omission from our opinion of the words “by jury,” which was brought to our attention in a motion for clarification filed by attorney Steven D. Rubin.

BACKGROUND

The Traffic Court Rules Committee (Committee) has filed its regular-cycle report of proposed amendments to the Florida Rules of Traffic Court. The Committee proposes amending rules 6.340 (Affidavit of Defense or Admission and Waiver of Appearance); 6.600(b) (Appearance After Notice Sent); and 6.600(c) (Reinstatement of License). The Board of Governors of The Florida Bar unanimously approved the proposed amendments.

Consistent with rule 2.140(b)(2), the Committee published the proposed amendments for comment. No comments were received. After submission to the Court, we republished the proposed amendments for comment. At that time, the Court received comments from the Traffic Court Rules Committee of the Conference of County Court Judges of Florida, the County Judges and Traffic Hearing Officers of the Seventeenth Judicial Circuit, and attorney Steven D. Rubin. Each commenter opposed the proposed amendment to rule 6.340, which informs a party of his or her right against self-incrimination. The Committee filed a response. We held oral argument on the Committee’s proposals, at which time Judge Robert W. Lee appeared on behalf of the Broward County Judges and Traffic Hearing Officers and the Conference of County Court Judges to provide background • and helpful insight on the Committee’s proposals.

Having considered the Committee’s report, the comments, and the Committee’s response, and having heard oral argument, we adopt the amendments to rule 6.600(b) as proposed by the Committee. However, we decline to adopt the proposed amendments to rule 6.600(c). As to rule 6.340(d), we decline to adopt the proposed amendment because that rule relates to a substantive issue regarding the applicability of the privilege against self-incrimination in traffic court proceedings. However, as more fully explained below, we refer this matter to the Conference of County Court Judges in conjunction with the Traffic Court Rules Committee to consider whether this issue could best be addressed through a model colloquy incorporated into our rules.

PROPOSED AMENDMENTS TO RULES 6.600(b) and (c)

The amendments to rule 6.600(b) clarify the process by which a defendant may request and obtain a hearing on a traffic citation after notice of the defendant’s failure to comply with the citation has been sent to the Department of Highway Safety and Motor Vehicles (DHSMV), but has not been acted upon by DHSMV. The amendments require a clerk, before DHSMV has acted on a notice of the defendant’s noncompliance with a citation, to set a case for hearing upon the request of a defendant.

We decline to adopt the amendments proposed by the Committee to rule 6.600(c). The Committee proposed amending rule 6.600(c) to provide that a defendant, whose driver license has been suspended for failing to comply with a citation, may request and obtain a hearing within six months after the commission of an offense. Under the proposed amendment, a clerk is required to set a defendant’s case for hearing upon a defendant’s request within the six-month period.

After the Court considered and rejected the proposed amendments to rule 6.600(c), we became aware of the enactment of new legislation amending section 318.15, Florida Statutes (2012). See ch.2012-181, § 17 at 18, Laws of Fla. The new legislation mirrors several of the Committee’s proposed amendments to rule 6.600(c). In particular, the new legislation adds an additional paragraph to section 318.15 that addresses when a defendant, whose driver license has been suspended, may request and obtain a hearing. See ch.2012-181, § 17 at 18, Laws of Fla.

The Committee has advised the Court that, in light of the new legislation, there is no longer a need to amend rule 6.600(c). No party has raised a question as to whether the new legislation is procedural in nature. See art. V, § 2(a), Fla. Const. Further, no party requests that we amend rule 6.600(c) to conform to the new legislation. Therefore, we simply decline to adopt the proposed amendments to rule 6.600(c) without elaboration.

PROPOSED AMENDMENT TO RULE 6.340(d)

The majority of the comments in opposition focused on the proposed amendment to rule 6.340. For the reasons explained, we decline to adopt the proposed amendment to rule 6.340.

The Committee proposes amending rule 6.340, titled “Affidavit of Defense or Admission and Waiver of Appearance,” by inserting a new subdivision (d) and re-lettering the subsequent subdivisions accordingly. Proposed new subdivision (d) informs a party filing an affidavit of defense or an admission with a court that he or she cannot be compelled to give testimony against himself or herself. It specifically provides: “Testimony of Accused. No accused person shall be compelled to give testimony against himself or herself.”

The Committee indicates that the proposed amendment ensures that a pro se defendant filing an affidavit or admission clearly understands his or her rights under the Fifth Amendment and article I, section 9, of the Florida Constitution. The com-menters take the position that because civil traffic hearings are not criminal proceedings, the privilege against self-incrimination is not applicable.

Through the enactment of chapter 318 of the Florida Statutes, the Legislature decriminalized specific traffic offenses and provided for a system of civil penalties for traffic infractions. See § 318.12, Fla. Stat. (2012). Traffic offenses that fall within the scope of chapter 318 are deemed noncriminal violations and cannot be punished by incarceration. § 318.13(3), Fla. Stat. (2012). A defendant charged with an infraction under chapter 318 does not have a right to court appointed counsel or to a trial by jury. Id. The Court has previously recognized that proceedings conducted pursuant to chapter 318 are “civil actions at law.” Netbleton v. Doughtie, 373 So.2d 667, 668 (Fla.1979).

The constitutional privilege against self-incrimination — found in both the Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution — protects an accused from being compelled to testify against himself or herself in a criminal proceeding or to otherwise provide the State with testimonial evidence. State v. Cino, 931 So.2d 164, 167 (Fla. 5th DCA 2006) (citing Pennsylvania v. Muniz, 496 U.S. 582, 588, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990)). Since the enactment of chapter 318, no legislative act or appellate decision has expressly extended the privilege against self-incrimination to every defendant in a traffic infraction case.

While no reported appellate case has discussed the applicability of the privilege against self-incrimination to traffic infraction hearings under chapter 318, there may be valid concerns regarding a defendant who testifies at such a hearing without a lawyer and whose testimony may be used in a subsequent criminal proceeding. The privilege against self-incrimination “not only protects the individual against being involuntarily called as a witness against himself [or herself] in a criminal prosecution but also privileges him [or her] not to answer questions put to him [or her] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him [or her] in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). Therefore, like a witness who must respond to questioning during a deposition taken in the pursuit of discovery in a civil case, see Taubert v. State, Office of Att’y Gen., 79 So.3d 77, 80-81 (Fla. 1st DCA 2011), a defendant who appears at a traffic infraction hearing may provide statements or be asked to answer questions that may provide “a link in the chain of evidence necessary for a criminal conviction.” Id. at 80 (quoting Belniak v. McWilliams, 44 So.3d 1282, 1284 (Fla. 2d DCA 2010)); see also Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). In such cases, a defendant’s constitutional right against self-incrimination may be implicated. See Tau-bert, 79 So.3d at 80 (defendant may assert the privilege against self-incrimination during discovery in a civil proceeding when the defendant has reasonable grounds to believe that his or her answers will incriminate him or her in a criminal case (citing Belniak, 44 So.3d at 1284; Novak v. Snieda, 659 So.2d 1138, 1140 (Fla. 2d DCA 1995))); Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003) (“One aspect of the privilege against self-incrimination is a witness’s right in a civil proceeding to refuse to respond to a question on the grounds that his [or her] answer may tend to incriminate him [or her].”). However, the mere fact that a defendant’s right against self-incrimination has been implicated does not necessarily guarantee him or her the protections of the constitutional privilege. See Taubert, 79 So.3d at 81 (after a defendant asserts the privilege, a trial court must determine whether, under the circumstances, a “substantial and real” threat of incrimination exists (quoting Marchetti v. United States, 890 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968))).

Additionally, we also question why the Committee chose to add proposed new subdivision (d) to rule 6.340. No part of rule 6.340 mandates that a defendant file an admission or affidavit of defense, nor does any part of the rule suggest that a defendant may be compelled to file such items. Thus, there is no indication that the constitutional privilege is even implicated by the rule. See U.S. Const, amend. V (stating that no person “shall be compelled in any criminal ease to be a witness against himself’ (emphasis added)); art. I, § 9, Fla. Const. (“No person shall be ... compelled in any criminal matter to be a witness against oneself.” (emphasis added)).

Given all of these issues, and the lack of clear guidance in the substantive law in particular, we do not believe the rule amendment process is the appropriate forum to address the concerns expressed by the Committee regarding the applicability of the privilege to all defendants in traffic infraction cases. See art. V, § 2(a), Fla. Const. Accordingly, we decline to adopt the proposed amendment. See In re Amendments to the Fla. Evidence Code, 782 So.2d 339, 341 (Fla.2000) (declining to address substantive/procedural issue in rule amendment case until the issue came before the Court in a true case or controversy).

The fact that we reject the rule as proposed does not mean that the Court is not cognizant of the valid concerns expressed, especially during oral argument. Presently, no rule or uniform practice exists requiring that a defendant in a traffic infraction case be informed of his or her right not to divulge information that may incriminate him or her in an existing or potential criminal case. During oral argument, the Committee indicated that the lack of uniformity on this issue has resulted in defendants, particularly pro se defendants, frequently receiving inconsistent treatment in courts across the state. Specifically, the Committee indicated that substantial variations exist in the practices of hearing officials on whether a defendant is required to answer questions posed to him or her during a traffic infraction hearing.

On the other hand, Judge Lee, who appeared at oral argument and oversees the Civil Division of County Court in Broward County, provided helpful insight on training offered to traffic hearing officers and the practices in Broward County. Judge Lee explained that in Broward County, a hearing is not conducted on a traffic infraction until a decision has been made on whether to prosecute the defendant criminally. Apparently, this county-specific procedure obviates the main concerns raised by the Committee — at least in Bro-ward County.

While the representations made by the Committee and Judge Lee during oral argument are helpful, millions of traffic infraction cases are heard annually in the courts of this state and a blind eye cannot be turned to the potential disparate treatment of defendants in those cases. Therefore, we have requested that the Conference of County Court Judges of Florida work with the Traffic Court Rules Committee to address whether a model colloquy should be adopted by a rule amendment that informs a defendant of his or her right not to provide testimony that may incriminate him or her in a pending or potential criminal case.

CONCLUSION

Accordingly, the Florida Rules of Traffic Court are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments shall become effective January 1, 2013, at 12:01 a.m.

It is so ordered.

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

APPENDIX

Rule 6.600. Failure to Appear or Pay Civil Penalty; Reinstatement of Driver License

(a) Notice of Failure to Comply. [NO CHANGE]

(b) Appearance After Notice Sent. If the defendant appears after the notice has been sent but before the department has suspended the driver license, the civil penalty may be paid without a hearing or the defendant may agree to attendrequest a hearing. If the defendant requests a hearing, the clerk must set the case for hearing

upon payment of the costs specified in section 318.18(8)(a), Florida Statutes. The department shallmust be notified immediately on a form to be supplied by the department.

(c)Reinstatement of License. [NO CHANGE]

Committee Notes

[NO CHANGE]

      . Fla. R. Jud. Admin. 2.140(b).

      . The Committee also represented that there have been circumstances in which a defendant has been subpoenaed to testify by the State and attorneys have been threatened with contempt for advising a client not to testify.


text:
    In re CERTIFICATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC12-2398.
    Supreme Court of Florida.
    Dec. 20, 2012.
   PER CURIAM.

This opinion fulfills our constitutional obligation to determine the State’s need for additional judges in Fiscal Year 2013/2014 and to certify our “findings and recommendations concerning such need” to the Legislature. Certification is “the sole mechanism established by our constitution for a systematic and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So.2d 734, 735 (Fla.2004).

TRIAL COURTS

The Florida Supreme Court continues to use a weighted caseload system as a primary basis for assessing judicial need for the trial courts. Using objective standards, this Court has examined case filing and disposition data, analyzed various judicial workload indicators, applied a three-year average net need, and considered judgeship requests submitted by the lower courts. Applying this methodology, this Court certifies the need for sixty-three judgeships statewide, sixteen of which are in circuit court and forty-seven in county court as detailed in the attached appendix.

We observe that state revenues, while gradually improving, continue to lag, thereby creating competition between funding new judgeships and attending to other critical state needs. Yet, as we have noted in previous opinions, our judges and court staff continue to work conscientiously to administer justice and resolve disputes promptly. They do so despite a demonstrated need for new judges and with a smaller staffing complement.

Our most recent analysis indicates a slight increase in probate and circuit civil filings. Felony, domestic relations, juvenile delinquency, and juvenile dependency filings, however, have decreased. The reduction in felony filings corresponds to a decline in arrests, as reported by the Florida Department of Law Enforcement. Also, while it may be too soon to indicate a sustained downward trend, recent juvenile justice reforms undertaken by the Florida Department of Juvenile Justice may also be resulting in fewer juvenile delinquency filings.

Notwithstanding the decreases to certain filing categories, our three-year average net need analysis continues to indicate that additional judgeships are necessary in our circuit courts. This three-year average net need reflects sustained workload over a multi-year period.

A number of workload trends are affecting court operations throughout the state. Several of the chief judges cited problems of fewer staff to assist with case processing matters, substantial pending caseloads, high jury trial rates, reduced clearance rates, and statutory requirements requiring additional hearings for certain case types in civil, criminal, and family law as trends contributing to judicial workloads. Other chief judges noted the effect of self-represented litigants on court time and resources and the protracted delays experienced by parties in scheduling hearings. Collectively, these factors contribute to court delay.

Our judges continue to absorb the work previously performed by case managers, law clerks, magistrates, and other supplemental support staff lost in the budget reductions of recent years. Most of these positions provided direct case management, legal research, and adjudicatory support to our judges. The consensus among chief judges is that the loss of support staff translates into slower case processing times, crowded dockets, and long waits to access judicial calendars.

Several of our chief judges note, in particular, the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing. Similarly, judges must schedule lengthy jury trials months in advance. These conditions are additional indicators of an under-resourced court system. Moreover, chief judges continue to report concerns expressed by judges that they are less able to devote adequate time to hearings due to significant workload.

Workload associated with the residential mortgage foreclosure crisis continues to impede disposition times and rates in our circuit civil divisions. Due to the severity and protracted nature of the crisis, our trial courts continue to struggle with heavy pending caseloads and the slow resurgence of foreclosure filings. Further, this crisis has had a ripple effect on the workload of other court divisions as chief judges and administrative judges allocate limited court resources to address demand. In recognition of this protracted crisis the Legislature, through the Foreclosure Backlog Reduction Initiative, provided dedicated funding for Fiscal Year 2012/2013 that has enabled the court system to secure the services of additional senior judges and case managers. Resources from the national mortgage settlement agreement have also been made available to assist the courts in addressing the foreclosure case backlog. This Court is grateful for this funding. The case managers and senior judges made available through this funding are in place to make a difference in reducing the foreclosure backlog throughout the state.

County court workload remains high. Unlike circuit court, which has witnessed a slight decrease in judicial need, county court judicial need is significant and holding steady. In select jurisdictions, some chief judges report that credit card debt cases and landlord tenant cases are increasing county court workload. Moreover, the loss of civil traffic infraction hearing officers in county court continues to increase county judge workload as these cases are shifted back to the judicial dockets throughout the state. These factors contribute to a high county court judicial need.

Another sustained trend in both county and circuit court reported by the chief judges is that self-represented litigants continue to have an impact on Florida’s court system. All divisions are experiencing an increase in self-represented litigants. Frequently, self-represented litigants are unprepared for the rigors of presenting evidence, following rules of procedure, and generally representing themselves in court. Consequently, they often require enhanced judicial involvement, which entails lengthier hearings, rescheduled hearings, and court delay.

DISTRICT COURTS OF APPEAL

The Second District Court of Appeal requests two additional judgeships, citing its current averaged weighted judicial workload of 815 cases per judge and Florida Rule of Judicial Administration 2.240(b)(2)(B), which provides that a presumption of need arises “where the relative weight of cases disposed on the merits per judge would have exceeded 280 after application of the proposed additional judge(s).” As with last year’s opinion, we have used a three-year average of weighted dispositions per judge which is consistent with our discretion under Florida Rule of Judicial Administration 2.240.

A number of factors contribute to the overall high workload in the Second District, including increases within the civil, criminal post-conviction, other criminal, juvenile, and family case categories. The chief judge of the Second District also cites a backlog of pending cases noting a twenty percent increase in their pending caseload since Fiscal Year 2007/2008.

Clearance rate trends also demonstrate the backlog building in the Second District. In Fiscal Year 2011/2012, there were 6,834 cases filed and 6,018 cases disposed, a clearance rate of eighty-eight percent. For the same period, with respect to criminal judgment and sentence cases, there were 1,720 cases filed and 1,248 cases disposed, reflecting a clearance rate of seventy-three percent.

The Second District also notes that despite high caseloads and a reduction in resources including personnel, the judges and staff have made every effort to properly execute their responsibilities. However, they do so knowing that trying to absorb this increased workload limits the time available for the consideration of each case and the writing of opinions. This Court shares the concerns of the chief judge of the Second District and remains concerned about a diminished quality of justice resulting from high workload and a loss of resources.

While the Second District Court of Appeal has requested that two additional district court judges be certified, our analysis of the three-year weighted dispositions per judge average indicates that they do not meet the threshold of 280 weighted dispositions per judge after a second judge is added. Therefore, we certify the need for one additional district court judge in the Second District for Fiscal Year 2013/2014.

CONCLUSION

We have conducted both quantitative and qualitative assessments of judicial workload. Using the case weighted methodology and the application of other factors identified in Florida Rule of Judicial Administration 2.240, we certify the need for sixty-three additional trial court judges in Florida, consisting of sixteen in circuit court and forty-seven in county court, as set forth in the appendix to this opinion, and one additional district court judge in the Second District Court of Appeal.

Many of the workload trends we identified in last year’s certification opinion remain today. In response, our courts continue to proactively manage their dockets to ensure that the administration of justice is not diminished. Yet despite these measures, we remain concerned that the timeliness and quality of justice are being adversely affected.

We appreciate recent action by the Legislature to stabilize court operations funding, and help the courts to address foreclosure case backlog issues. We recognize that the funding of new judgeships is an expensive proposition, especially during difficult economic times with diminished state revenues. There are many competing needs within state government and our court system. We have carefully weighed the need for additional judges and for the operational and facilities needs within the trial and appellate courts. We encourage the Legislature to first fund the Judicial Branch Fiscal Year 2013/2014 Legislative Budget Request as there are significant facility and operational issues contained therein which merit funding. To the extent funding is available, we urge the Legislature also to consider our certified need for additional judges.

It is so ordered.

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

APPENDIX

Trial Court Need

      . Article V, section 9 of the Florida Constitution provides in pertinent part:
      Determination of number of judges. The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

      . Our certification methodology relies primarily on case weights and calculations of available judge time to determine the need for additional trial court judges. See Fla. R. Jud. Admin. 2.240.

      . Felony arrest rates as reported by the Florida Department of Law Enforcement dropped six and one-half percent from 2010 to 2011.

      . See Rick Scott, Governor of Florida, Reform Underway at Florida's Juvenile Justice Agency (January 3, 2012), (available online at http:// www.flagov.com).

      .When the case weights were originally developed in 1999 and updated in 2007, they incorporated the availability of supplemental resources to assist judges with case processing matters. It is reasonable to conclude that the loss of these supplemental positions (i.e., case managers, law clerks, and magistrates) may increase the case weights if not restored prior to the next case-weight update.

      . One additional judgeship in the second district will place its weighted dispositions per judge at 294. A certification of two judge-ships would place its weighted dispositions per judge at 276, four below the threshold.


text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220.
    No. SC12-2235.
    Supreme Court of Florida.
    Dec. 20, 2012.

      Mark Caliel, Chair, Criminal Procedure Rules Committee, Jacksonville, FL; John F. Harkness, Jr., Executive Director and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Criminal Procedure Rules Committee (Committee) has filed an out-of-cycle report proposing an amendment to Florida Rule of Criminal Procedure 3.220(b) (Prosecutor’s Discovery Obligation) in response to 2011 legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes an amendment to rule 3.220(b) in order to conform the rule to section 92.561, Florida Statutes (2012), which prohibits the reproduction of child pornography in a criminal case. Section 92.561 was created by chapter 2011-220, section 4, Laws of Florida, which became effective July 1, 2011. See ch.2011-220, § 17, Laws of Fla.

Subdivision (b)(1) of rule 3.220 currently provides, in pertinent part, that “[wjithin 15 days after service of the Notice of Discovery, the prosecutor shall ... permit the defendant to inspect, copy, test, and photograph” specified information and material in the state’s possession or control, which could include property or material that cannot be reproduced under section 92.561. Therefore, the Committee proposes that subdivision (b)(1) of the rule be amended to further provide that “any property or material that portrays sexual performance by a child or constitutes child pornography may not be copied, photographed, duplicated, or otherwise reproduced[.]”

Accordingly, after considering the proposed amendment and the relevant legislation, we amend Florida Rule of Criminal Procedure 3.220(b) as reflected in the appendix to this opinion. New language is underscored. The amendment shall become effective immediately upon the release of this opinion. 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 3.220. DISCOVERY

(a) [No Change]

(b)Prosecutors Discovery Obligation.

(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state’s possession or control, except that any property or material that portrays sexual performance by a child or constitutes child pornography may not be copied, photographed, duplicated, or otherwise reproduced:

(A)a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:
(i) Category A. These witnesses shall include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi witnesses, (3) witnesses who were present when a recorded or unrecorded statement was taken from or made by a defendant or codefendant, which shall be separately identified within this category, (4) investigating officers, (5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify.
(ii) Category B. All witnesses not listed in either Category A or Category C.
(iii) Category C. All witnesses who performed only ministerial functions or whom the prosecutor does not intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense;
(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The term “statement” as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term “statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the ease, but shall not include the notes from which those reports are compiled;
(C) any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements;
(D) any written or recorded statements and the substance of any oral statements made by a codefendant;
(E) those portions of recorded grand jury minutes that contain testimony of the defendant;
(F) any tangible papers or objects that were obtained from or belonged to the defendant;
(G) whether the state has any material or information that has been provided by a confidential informant;
(H) whether there has been any electronic surveillance, including wiretapping, of the premises of the defendant or of conversations to which the defendant was a party and any documents relating thereto;
(I) whether there has been any search or seizure and any documents relating thereto;
(J) reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; and
(K) any tangible papers or objects that the prosecuting attorney intends to use in the hearing or trial and that were not obtained from or that did not belong to the defendant.
(L) any tangible paper, objects or substances in the possession of law enforcement that could be tested for DNA.
(2) — (4) [No Change]

(c)-(o) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

      . See Fla. R. Jud. Admin. 2.140(e).

      . An original and nine paper copies of all comments must be filed with the Court on or before January 28, 2013, with a certificate of service verifying that a copy has been served on the Committee Chair, Mark Caliel, 220 E. Bay Street, Jacksonville, Florida, 32202-3429, mcaliel@coj.net, and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida, 32399-2300, htelfer@flabar.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 Committee Chair has until February 18, 2013, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    Marguerite STEUER, etc., Petitioner, v. JAYLENE INC., et al., Respondents.
    No. SC09-2209.
    Supreme Court of Florida.
    Dec. 20, 2012.
    Susan Barbara Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, FL, and Isaac Ramon Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, FL, for Petitioner.
    Mark Brian Hartig and Amy L. Miles of McCumber, Daniels, Buntz, Hartig and Puig, P.A., Tampa, FL, for Respondents.
   PER CURIAM.

We have for review Jaylene, Inc. v. Steuer ex rel. Paradise, 22 So.3d 711, 713 (Fla. 2d DCA 2009), in which the Second District Court of Appeal held that the arbitrator (as opposed to the trial court) initially must determine whether an arbitration agreement’s limitation on statutory remedies renders the agreement unenforceable on public policy grounds. In so holding, the Second District noted that it was in conflict with other district court opinions holding the opposite. Id. (citing Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, 953 So.2d 574 (Fla. 1st DCA 2007); Alterra Healthcare Corp. v. Bryant, 937 So.2d 263 (Fla. 4th DCA 2006); and SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006)). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending our dispositions of Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla. 2011), and Gessa v. Manor Care of Florida, Inc., 86 So.3d 484 (Fla.2011), in which we held that the trial court (as opposed to the arbitrator) initially must make the subject determination. We accordingly issued an order directing respondents in the present case to show cause why we should not accept jurisdiction, summarily quash the Second District’s underlying Jaylene decision, and remand for reconsideration in light of our decisions in Shotts and Gessa. Respondents in turn filed a response conceding that Shotts and Gessa control the disposition of this case.

We accordingly accept jurisdiction and grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Second District for reconsideration upon application of this Court’s decisions in Shotts and Gessa.

It is so ordered.

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

POLSTON, C.J. and LEWIS, J., concur in result only.


author: CASANUEVA, Judge.

text:
    Michael SCHULTZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-853.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.
    Howard L. Dimmig, II, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Michael Schultz was convicted of armed burglary and grand theft, and he appeals, raising three issues. Of the three issues we find merit in only the third, that the State failed to provide sufficient proof of the value of the items taken during the burglary to support the charge of third-degree grand theft (greater than $300 but less than $5000). See Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from, on other grounds, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). We affirm Mr. Schultz’s conviction for armed burglary, the subject of his first two issues. However, we reluctantly conclude that we are required to reverse Mr. Schultz’s conviction for grand theft because of our supreme court’s rationale and holding in Marrero v. State, 71 So.3d 881 (Fla.2011), as discussed in this court’s opinion in Colletti v. State, 74 So.3d 497 (Fla. 2d DCA 2011). The application of this precedent to the facts established on the record of this case requires a determination that the minimum value necessary to establish grand theft was not met. Accordingly, we vacate the conviction for that offense and direct that a conviction for petit theft of the first degree be entered. On remand, Mr. Schultz shall be resentenced accordingly.

Affirmed in part, reversed in part, and remanded with instructions.

SILBERMAN, C.J., and BLACK, J., Concur.

      . § 812.014(2)(c), Fla. Stat. (2010).

      . § 812.014(2)(e).


author: VILLANTI, Judge.

text:
    Brandon Wade FIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4031.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Brandon Wade Fields seeks review of his convictions and sentences for two counts of possession of a controlled substance and one count of possession of less than 20 grams of cannabis, contending that the trial court erred by denying his dispos-itive motion to suppress. Because the officer searched Fields without consent and after any concerns about a “feared medical emergency” had dissipated, the search was illegal, and we reverse and remand for discharge.

On January 30, 2011, police were called to Fields’ residence by Fields’ mother. She requested a dispatch after she found Fields “in his room nude and with a mixture of pills and syringes,” and she indicated that Fields appeared to have been “beaten up.” Fields’ mother also told the dispatcher that Fields was “agitated,” that he had a history of drug abuse, and that he was on medication for bipolar disorder. She also reported that Fields had been involuntarily committed in the past.

Deputies, including Deputy Odom, responded to Fields’ house. Odom intended to evaluate Fields for mental illness and/or substance abuse to determine whether commitment under either the Baker Act or Marchman Act was warranted. However, when Odom arrived at the house, Fields was standing outside under an oak tree, fully clothed. Odom approached Fields and began speaking with him. While they were talking, Fields was not aggressive or agitated, and he was able to answer Odom’s questions and engage in an appropriate and coherent conversation.

Early in this conversation, Odom noticed the top of a pill bottle sticking up from Fields’ pocket, and he asked Fields what was in the bottle. Fields replied that it was his blood pressure medication, and he gave Odom the name Lisinopril. Odom did not ask to see the bottle at that time. Instead, he began talking to Fields about whether he had been taking drugs and whether he had been hearing voices. As they continued speaking, Odom began telling Fields in detail about voluntary drug treatment programs, including the ACTS program. At that point, Odom and Fields were joined by Deputy Melton, who also, told Fields about the benefits of voluntary admission into ACTS.

According to Odom, part of his March-man Act assessment included determining whether the subject’s drug use had caused prior “legal ramifications.” So as he was explaining the voluntary ACTS program to Fields, Odom asked whether Fields had ever been in any legal trouble. Fields responded that he had been in trouble with the law in the past. Odom asked, “For what?” Fields responded, “Drug trafficking.” Odom then immediately said, “Okay. Let me see the pill bottle in your cargo pocket.” In compliance with this command, Fields handed Odom the bottle. The bottle contained controlled substances, and Fields was arrested and charged with their possession.

Fields moved to suppress the drugs, arguing that they were seized without his consent during an illegal detention. The State argued that the search was legal because the officers were responding to a feared medical emergency. Fields then argued that any fears concerning a possible medical emergency had dissipated before Odom demanded the bottle. The trial court recognized that the pivotal question in this circumstance was whether “the conduct of the officer remain[ed] consistent with an inquiry as to mental health or did it ever transform into a criminal investigation.” The court then concluded that Odom’s request to see the pill bottle “was part of a mental health assessment and that the officer had a right to make that request.” Accordingly, the trial court denied the motion to suppress. Fields then pleaded guilty to the charges while reserving his right to appeal the denial of his dispositive motion to suppress. He now appeals the resulting judgment and sentence, contending that the trial court erred in denying the motion to suppress.

In Riggs v. State, 918 So.2d 274, 279 (Fla.2005), the supreme court recognized that a “feared medical emergency” is a particular type of exigent circumstance that may support a warrantless search. The court explained that “ ‘the “emergency exception” permits police to enter and investigate private premises to preserve life ... or render first aid, provided they do not enter with an accompanying intent either to arrest or search.’ ” Id. at 280 (quoting Hornblower v. State, 351 So.2d 716, 718 (Fla.1977)). However, any search “based on an exigency must be limited in scope to its purpose” and “an officer may not continue her search once she has determined that no exigency exists.” Rolling v. State, 695 So.2d 278, 293 (Fla.1997).

For example, in Reed v. State, 944 So.2d 1054, 1056 (Fla. 4th DCA 2006), officers received a report of possible drug dealing from a motel room. When an officer went to the room, a woman opened the door and the officer could see a man lying on the bed. Id. When he tried to rouse the man, the man was unresponsive. Id. Fearing a possible drug overdose, the officer entered the room and attempted to wake him. Id. Once the man — Reed—woke up and was apparently okay, the officer asked for his driver’s license. After determining that Reed’s license was suspended and that he was on felony probation, the officer arrested him and charged him with possession of a suspended driver’s license and violation of probation. Id. A subsequent search of the room found cocaine.

Reed subsequently moved to suppress the evidence against him, arguing that the officer should not have entered the room. The trial court denied the motion, and Reed appealed. On appeal, the Fourth District noted that that the officer’s initial entry into the room was permissible under the “feared medical emergency” exception because the officers were at the room on a drug complaint, Reed would not originally wake up, and the officer feared an overdose. However, once the officer determined that Reed had not overdosed, “he was required to leave the motel room because the exigency dissipated and no criminal activity was apparent within the room.” Id. at 1059. Therefore, the Fourth District concluded that the search after Reed woke up was improper and that the court should have granted the motion to suppress.

While the majority of cases applying the “feared medical emergency” exception have, like Reed, dealt with warrantless entries into residences, this court and others have also applied the exception to searches of persons or their clothing. In State v. Hutchins, 636 So.2d 552 (Fla. 2d DCA 1994), an officer was flagged down by a woman who said she had been beaten. Her alleged assailant — Hutchins—was on the street corner unable to stand and somewhat incoherent. Id. at 552-53. The woman told the officer that Hutchins had been drinking and had taken four or five pills, but she did not know what they were. Id. at 553. Concerned for Hutchins’ welfare, the officer called for paramedics. Id. Once Hutchins was in the ambulance, the officer asked what pills he had taken, and Hutchins responded that they were in his pocket. Id. The officer then reached into the pocket, pulled out the bottle, and discovered that they were Xanax. Id. Hutch-ins was subsequently arrested for possession of that substance.

Hutchins moved to suppress the drugs, arguing that the officer’s taking of the pill bottle constituted an illegal search. The trial court granted the motion, and the State appealed. This court held that the search of Hutchins’ pockets under these circumstances was reasonable because the officer “believed [the search] in good faith to be reasonably necessary to assist [Hutchins] in a potentially life-threatening situation.” Id. Therefore, this court reversed the order suppressing the drugs.

Similarly, in Gilbert v. State, 289 So.2d 475, 475 (Fla. 1st DCA 1974), officers found Gilbert wandering in the middle of a major road. She appeared to be intoxicated, and she was disoriented and disheveled. Id. She told officers that she had been assaulted, and they took her to the police station to investigate her allegations. Id. While at the police station, Gilbert became increasingly upset and agitated, and she made several statements indicad ing that she wanted to kill herself. Id. Officers became increasingly concerned about her health and welfare, and one of the officers searched Gilbert’s jacket to ensure that there was nothing in it with which she could harm herself. Id. at 476. In doing so, the officer found a pill bottle containing hashish. Gilbert was arrested for possession of the hashish, and she moved to suppress the drugs. The trial court denied the motion, and Gilbert appealed.

The First District affirmed. It noted that the police were not looking for evidence of a crime when they searched Gilbert’s pockets. Instead, they were looking for “possible harmful instruments or substances which could be utilized by her to effect her wish to be dead or kill herself.” Id. The court noted that the totality of the facts “provided sufficient cause for the police officers to reach such a level of concern over appellant’s safety so as to dictate a search of the jacket.” Id.

In this case, there is no dispute that Odom originally responded to Fields’ house due to a feared medical emergency. Based on the reports from Fields’ mother, Odom detained Fields to question him concerning his mental status and physical condition. However, Odom’s investigation revealed a fully clothed adult male who was standing outside smoking a cigarette. Contrary to the facts reported to Odom by dispatch, Fields was neither agitated nor aggressive, and he was able to engage in a lengthy coherent conversation with Odom. When Odom initially asked Fields what was in the pill bottle and Fields told him it was blood pressure medication, Odom was apparently not concerned. Instead, only after Odom began discussing possible voluntary drug treatment programs and only after Fields indicated that he had a prior conviction for drug trafficking did Odom decide he needed to see what was in the pill bottle, and only then did he order Fields to hand over the bottle.

In denying Fields’ motion to suppress, the trial court apparently concluded that the timing of Odom’s request was coincidental. However, contrary to this conclusion, this undisputed sequence of events establishes that Odom was no longer concerned with any feared exigent medical emergency when he demanded that Fields hand him the pill bottle. Unlike in Hutch-ins, the totality of the circumstances in this case did not show that Odom was attempting to address any ongoing medical emergency that Fields was experiencing. And unlike in Gilbert, the totality of the circumstances did not show that Odom was attempting to prevent Fields from harming himself. There was no testimony that Fields appeared to be under the influence of any drugs when Odom arrived, and nothing that Odom saw or testified to corroborated Fields’ mother’s initial report that Fields was agitated and beaten up. Further, the evidence does not support a conclusion that Odom was still investigating potential involuntary commitment because Odom was discussing voluntary drug treatment programs just prior to asking Fields about his prior legal problems. Thus, like the officer in Reed, while Odom initially responded to address a feared medical emergency, by the time Odom demanded the pill bottle from Fields, any exigency had clearly dissipated. Accordingly, since the reason for the feared medical emergency had been resolved, Odom was not entitled to demand that Fields produce the pill bottle. See Rolling, 695 So.2d at 293 (holding that “an officer may not continue her search once she has determined that no exigency exists”); Reed, 944 So.2d at 1059 (requiring the officer to end any search efforts once the exigency that allowed the initial entry has dissipated). Hence, Odom’s demand constituted an unreasonable and unconstitutional search, the trial court should have granted Fields’ motion to suppress, and we must reverse the denial of that dispositive motion and remand for discharge.

Reversed and remanded for discharge.

SILBERMAN, C.J., Concurs.

KELLY, J., Concurs in result only.

      . §§ 394.451-.4789, Fla. Stat. (2010).

      . § 397.301 et seq., Fla. Stat. (2010).


text:
    Latrice DAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2110.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Latrice Day appeals her conviction for one count of grand theft ($300 or more), contending that the trial court erred by permitting the State to have a police officer identify Day as one of the women depicted in surveillance video of the crime. While the identification testimony itself was admissible, we agree with Day that the trial court erred by permitting the State to elicit evidence of the witness’s status as a police officer. Therefore, we must reverse and remand for a new trial.

Day was charged with third-degree grand theft after several women entered a Walgreens, loaded their purses with merchandise, and fled the store without paying. Neither the store manager, who witnessed part of the crime, nor any other store employee could identify any of the women; however, the theft was captured on surveillance video. During the investigation of the incident by the Polk County Sheriffs Office, a City of Tampa police detective — Marilyn Lee — happened to see the surveillance video, and she recognized the women from when she worked as a community police officer in the Robles Park area of Tampa. Lee contacted the Polk County Sheriffs Office, and Day and the other women were arrested shortly thereafter.

Prior to trial, Day filed a motion in limine seeking to prohibit the State from having Lee testify as to her identification of Day. Day argued that Lee’s testimony was an improper and unnecessary lay opinion because the jurors could simply watch the surveillance video and determine for themselves whether Day was one of the perpetrators. Day also argued that it was improper for the State to have Lee identify herself as a police officer and testify as to her knowledge of Day because the jurors could infer from that testimony that Day had been involved in prior criminal activity. The trial court denied Day’s motion in limine and permitted Lee to testify.

At trial, the State called Lee as its final witness. The very first question asked by the State was where Lee was employed. Lee responded that she had been employed by the City of Tampa Police Department for twenty-eight years and that she was currently a detective in the latent investigations department. After testifying that she saw the surveillance video on television and recognized Day, the State asked how Lee knew Day. Lee testified that she had recognized Day from “Robles Park,” which Lee explained was a “public housing development ]” in Tampa. Over Day’s renewed objection, Lee testified that she was a “community-oriented police officer” for a period of time and that she handled calls in Robles Park as well as another public housing project. She testified that her job as a community police officer was to get to know the residents, help them feel comfortable with police officers, and help them with calls for police assistance. Lee testified that she recognized Day and the other women involved in the theft because she had “had contact with them” while she was a community police officer. She also testified that she knew some of the women, including Day, only by their street names but that she ultimately identified Day’s legal name “through research and photos that I pulled up ... to match.” Day did not cross-examine Lee, and Day was subsequently convicted as charged.

In this appeal, Day contends that the trial court erred by admitting Lee’s identification testimony, as well as her testimony concerning how she knew Day. We agree in part, and therefore we reverse Day’s conviction and remand for a new trial.

As an initial matter, we disagree with Day’s contention that the trial court erred by allowing Lee to testify to her opinion that Day was one of the women depicted in the surveillance video. This court has held that the State may properly present identification witnesses who are “either eyewitnesses or else capable of independently identifying the individual from photographs, tape recordings, or similar evidence.” State v. Cordia, 564 So.2d 601, 602 (Fla. 2d DCA 1990) (second emphasis added). The State may introduce such identification testimony when a videotape does not provide clear images of the perpetrators, see, e.g., Hardie v. State, 513 So.2d 791, 792 (Fla. 4th DCA 1987), or simply to support other identification evidence that might be subject to challenge, see Early v. State, 543 So.2d 868, 868-69 (Fla. 5th DCA 1989). Here, Lee testified that she knew Day from when Lee worked in the neighborhood where Day lived. And Day’s defense at trial was misidentifi-cation. Because the store employees were not able to identify any of the perpetrators and because Lee was capable of independently identifying Day, Lee’s testimony was relevant, and the trial court properly admitted it to support the State’s other evidence on the issue of identity.

That said, however, the trial court erred when it permitted the State to also elicit evidence concerning Lee’s position as a Tampa police detective, and this error requires us to reverse and remand for a new trial. While Florida courts have held that police officers may provide in-court lay opinion testimony on the issue of identity, those same courts have held that it is error for the jury to be told that the individuals providing the testimony are police officers. For example, in Hardie, the trial court permitted five Metro-Dade police officers to express their opinions as to the identity of persons — including Har-die — depicted in a surveillance videotape of a smash-and-grab robbery. 513 So.2d at 792. The Fourth District rejected Har-die’s argument that the identification testimony should have been totally excluded, noting that the officers based their testimony on their prior knowledge and contacts with Hardie and that identity was a disputed issue at trial. Id. However, the court reversed Hardie’s convictions and remanded for a new trial because “[t]he trial court should have instructed the state and the witnesses not to divulge the nature of the witnesses’ occupation or the circumstances of their involvement with” him. Id. at 793. The court noted that the disclosure of the fact that the witnesses were police officers made it “inconceivable that the jury would not have concluded that [Hardie] had been involved in prior criminal conduct.” Id. at 793-94.

In reaching this conclusion, the Fourth District relied on United States v. Allen, 787 F.2d 933 (4th Cir.1986), and United States v. Farnsworth, 729 F.2d 1158 (8th Cir.1984). In both of those cases, the courts permitted police officers and parole officers to identify defendants in surveillance videos and rejected the defendants’ arguments that the identifications were unduly prejudicial specifically because “ ‘[n]othing at trial gave the jury any reason to conclude that [the witnesses] were involved in law enforcement.’” Hardie, 513 So.2d at 793 (quoting Allen, 787 F.2d at 937). Under those circumstances, the proper identification testimony did not give rise to an improper inference of prior criminal conduct. Other courts have since applied this same limitation to identification testimony by police officers. Compare State v. Price, 701 So.2d 1204, 1206-07 (Fla. 3d DCA 1997) (holding that the trial court had properly granted Price’s motion for new trial because, while the State properly introduced identification testimony from a police officer who was not a witness to the offense, it improperly elicited testimony that the witness was, in fact, a police officer who knew the defendant from working in his neighborhood), and Edwards v. State, 583 So.2d 740, 741 (Fla. 1st DCA 1991) (reversing defendant’s conviction and remanding for a new trial because the trial court improperly allowed a police officer with no special knowledge of the defendant to identify her as being depicted in a surveillance video and because the witness was identified to the jury as a police officer but noting that on remand the evidence might be admissible if the State laid the proper predicate and “if Heape were not identified to the jury as a police officer”), with Early, 543 So.2d at 868-69 (affirming conviction when Kenny Williams — a police officer — testified that he had known the defendant for over ten years and that the defendant was the person depicted in the videotape of the offense but doing so specifically because “the jury was never told that Williams was a policeman”).

In this case, the State introduced Lee as a City of Tampa police detective, and Lee testified that she knew Day and the other women in the videotape from when she had worked in their neighborhood as a community police officer. Lee testified that she saw Day and the others on a regular basis and knew their street names. As in Hardie, Edwards, and Price, the introduction of evidence of Lee’s position as a police officer makes it inconceivable that the jury would not have concluded that Day had been involved in prior criminal conduct, and thus the admission of this evidence constituted reversible error.

Moreover, on the facts of this case, we cannot say that this error was harmless. Admittedly, Lee did not testify that Day had committed prior crimes, and there were certainly innocuous ways in which Lee could have come to know Day through community policing. We can envision circumstances under which the fact of a police officer’s employment might be harmless. For instance, if Lee had testified that she was a police officer, she had lived next door to Day for several years, and she knew Day as her neighbor from the neighborhood, Lee’s status as a police officer would be simply an incidental fact that would not necessarily give rise to an implication of prior criminal conduct. But such is not the case here. In this case, the State emphasized Lee’s status as a police detective from its first question, it elicited the fact that Lee recognized Day because Lee had been a community police officer in the public housing project where Day lived, and it elicited Lee’s testimony that she knew Day only by her street name and that she located Day’s legal name through “research and pulling up photos” after seeing the surveillance video. Taken as a whole, Lee’s testimony gives rise to at least a reasonable implication that Day had previously been involved in criminal activity, and therefore the admission of this testimony was not harmless beyond a reasonable doubt.

Accordingly, we reverse Day’s conviction and remand for a new trial. At the new trial, Lee may again testify to her identification of Day as long as the jury is not told of her position as a police officer.

Reversed and remanded for a new trial.

WALLACE and MORRIS, JJ., Concur.

      . We can also envision ways in which a defendant, in cross-examining such a witness concerning his or her knowledge of the defendant’s identity, might open the door to testimony about the witness's position as a police officer. However, since Day did not even cross-examine Lee, no such circumstances arose in this case.


text:
    A.G.Q., by and through his next friend and parent M.Q., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D12-1994.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Christopher T. White of Disability Rights Florida, Tampa, for Appellant.
    Michael Palecki, General Counsel, Agency for Persons with Disabilities, Tallahassee; Richard C. Beliak of Richard C. Bel-iak, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In its amended final order, the Agency for Persons with Disabilities modified its previous final order in a manner that diluted some of the clear findings and conclusions of the recommended order, without providing any justification for doing so, as required by section 120.57(1)(Z), Florida Statutes. Accordingly, we reverse and remand for reinstatement of the final order.

A.G.Q. is a child with severe developmental disabilities who is on the waiting list for the Medicaid waiver program, which allows waivers from compliance with certain statutes and regulations for persons with developmental disabilities who are provided services in the home. See Russell v. Agency for Persons With Disabilities, 929 So.2d 601 (Fla. 1st DCA 2006). The agency denied his application to be considered a danger to himself and others, which would qualify him to be placed at the top of the waiting list pursuant to section 393.065(5), Florida Statutes, and Florida Administrative Code Rule 65G-1.047. After an evidentiary hearing, the hearing officer found that the behavioral services being provided to the child are insufficient and that he proved he is a danger to himself and others, which qualifies him for the first category on the crisis waiting list. The agency affirmed, but then issued an Amended Final Order to correct what it now refers to as an “inadvertent omission.”

In the first order, the agency concluded:

Since the Agency had not previously determined Petitioner to meet the crisis criteria, it is necessary to remand this case for the purpose of determining whether sufficient funds currently exist to enroll Petitioner on the Developmental Disabilities Home and Community-Based Medicaid Waiver. If the Agency determines that immediate enrollment is not possible, it shall coordinate a review of Petitioner’s existing needs and services with both the Department of Children and Family Services and Petitioner in an effort to identify funding sources, including APD General Revenue funds, which may be used to provide critical services.
Based on the foregoing and being otherwise fully advised in the premises, it is hereby ORDERED that Petitioner’s application to be added to the crisis wait-list is hereby GRANTED under crisis category two. This matter is REMANDED to the Agency for further review in accordance with the above Order.

In the amended order, the agency replaced the paragraph quoted above with:

Since the Agency had not previously determined Petitioner to meet the crisis criteria and because this petitioner is unique in that some of his needs are currently being met by DCF services, it is necessary to remand this case for the purpose of immediately determining which of Petitioner’s needs are currently being met by DCF and which of his critical needs are not; and to provide for those critical needs that are not being met. The Agency shall coordinate a review of Petitioner’s existing needs and services with both DCF and Petitioner in an effort to identify funding sources, including APD Individual and Family Supports or Waiver funds, which may be used to provide critical services.
Based on the foregoing and being otherwise fully advised in the premises, this matter is REMANDED to the Agency for further review in accordance with the above Order.

Rule 65G-1.046(4)(a) provides that a client will be provided services under the waiver “[i]f funding is available and the applicant is approved for crisis enrollment.” It is undisputed that A.G.Q. shall be placed in the top-priority category of the waiver waiting list because he is qualified for crisis enrollment. The hearing officer stated that A.G.Q. qualified for crisis enrollment but that “the undersigned makes no determination that any Agency funds are available to place this specific petitioner on an immediate waiver.”

Because A.G.Q.’s participation in the waiver program depends upon the availability of funding, the agency stated in the initial final order that on remand it would “determine whether sufficient funds exist to enroll Petitioner on the Developmental Disabilities Home and Community-Based Medicaid Waiver.” (Final Order, at 6) If funding were not available, the agency stated that it would “coordinate a review of Petitioner’s existing needs and services with both the Department of Children and Family Services and Petitioner in an effort to identify funding sources, including APD General Revenue funds, which may be used to provide critical services.” (Final Order, at 6)

In the amended final order, however, the need to determine whether there are available funds to pay for waiver services was replaced by the need for a study or evaluation to determine what the child’s service needs are. Yet the conclusions of law in paragraphs 87 through 98 of the recommended order, particularly 91, 95, 96, and 97, show that the hearing officer found that A.G.Q. qualifies for crisis enrollment because he is at a high risk of injuring himself and others, and the behavioral services being provided by the Department of Children and Families are not improving his dire condition. Accordingly, the hearing officer has determined that A.G.Q.’s most critical need — for behavioral services — is not being met. Accordingly, the agency should not revisit that finding on remand.

Moreover, the agency said in the amended final order that on remand, it would “coordinate a review of Petitioner’s existing needs and services with both DCF and Petitioner in an effort to identify funding sources, including APD Individual and Family Supports or Waiver funds, which may be used to provide critical services.” This modified the hearing officer’s determination that A.G.Q. must receive waiver services if there is funding available. Only if funding is not available should the agency consider these alternative sources.

In conclusion, the agency in the initial final order approved and adopted the recommended order; thus it accepted that A.G.Q.’s current behavioral services are not helping him, and that waiver funding must be provided, if available, for more useful or effective behavioral services. The amended final order, however, appears to presume continuing viability of the behavioral services provided by the Department of Children and Families that the hearing officer had discredited, and requires A.G.Q. to look for alternative funding in addition to waiver funding. This was error, because the agency did not comply with section 120.57(1)(£) when it rejected or ignored the findings of fact regarding behavioral services, and did not state with particularity its reasons for rejecting or modifying the conclusions of law.

REVERSED and REMANDED for reinstatement of the final order.

PADOVANO, ROWE, and RAY, JJ„ Concur.


text:
    OLD DOMINION INSURANCE COMPANY, Appellant, v. D.R. HORTON, INC. JACKSONVILLE, Appellee.
    No. 1D13-0022.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Hinda Klein of Abel Lurvey Morrow & Schefer, Hollywood; John E. Herndon, Jr., of Krevens, Abel, Tallahassee, for Appellant.
    William E. Kuntz and Allison McElhe-ney, Jacksonville; Lee Wedekind, Jacksonville, for Appellee.
   PER CURIAM.

The Court has determined that the Findings of Fact, Conclusions of Law and Entry of Default Judgment Against Old Dominion, is a nonfinal, non-appealable order. See Heartland Exp., Inc. of Iowa v. Torres, 89 So.3d 1074 (Fla. 1st DCA 2012); Hernando County v. Leisure Hills, Inc., 648 So.2d 257 (Fla. 5th DCA 1994). Accordingly, Appellee’s motion to dismiss, filed on January 7, 2013, is granted and the appeal is hereby DISMISSED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Iontie D. JENKINSON, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Navy Exchange Service Command, Appellees.
    No. 1D12-6010.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Iontie D. Jenkinson, pro se, Appellant.
    Norman A. Blessing, General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

The notice of appeal failed to timely invoke this Court’s jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is DISMISSED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. William KARELAS and Christine Karelas, Appellees.
    No. 3D10-3015.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2012.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Sehefer, and Hinda Klein, for appellant.
    Marlene S. Reiss; and Kenneth B. Schurr, for appellees.
    Before ROTHENBERG and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   On Motion for Rehearing Granted

SCHWARTZ, Senior Judge.

The issue in this case is whether the Florida Insurance Guaranty Association is liable for the homeowner’s insurance claim in question. In the summary declaratory judgment now under review, the trial judge held that it was. He was right.

The operative facts, which are entirely undisputed, began on September 1, 2000, when the appellee purchased a homeowner’s liability policy covering his Florida home from Green Tree Insurance Company. At that time, Green Tree was a foreign so-called “surplus lines” carrier, which, if nothing else happened, was not subject to the FIGA Act, see §§ 631.50. et seq., Fla. Stat. (2011), by statute, § 631.52(13), Fla. Stat. (2011), and by its own terms. See Fla. Ins. Guar. Ass’n v. Johnson, 654 So.2d 239, 239-40 (Fla. 4th DCA1995).

On December 31, 2000, however, a decisive “something else” did happen. On that date, Green Tree was acquired and merged into Aries Insurance Co. which was a Florida domiciliary subject to FIGA, and which acceded to all of Green Tree’s outstanding contractual obligations. Subsequently on July 30, 2001, while the so-called “second” Aries Company was in viable existence, Castillo was injured on Karelas’ premises and filed a personal injury claim and suit against Karelas and Aries II, which it duly defended in accordance with the policy. On November 14, 2002, Aries II became defunct and went into receivership, this triggering FIGA’s liability, if any, under the statute. FIGA then disclaimed its responsibility for the defense and coverage of the pending action, pointing to the date that the policy had been issued by a non-FIGA insurer. The claimant and insured contended that the decisive date was that of the accident which occurred while FIGA covered Aries II. FIGA now appeals the holding that the later date was determinative. We affirm.

The result below and its affirmance are required by the unambiguous language of section 631.54(6) which provides that an “insolvent insurer,” subject to the terms of the act:

means a member insurer authorized to transact insurance in this state, either at the time the policy was issued or when the insured event occurred, and against which an order of liquidation with a finding of insolvency has been entered by a court of competent jurisdiction if such order has become final by the exhaustion of appellate review (emphasis added).

Since there is no question Aries II was a member insurer on July 30, 2001, the date that the claim arose, there is no legitimate argument contrary to the proposition that FIGA is responsible.

The correctness of this decision is made clear by the case relied upon by FIGA, Mississippi Ins. Guaranty Ass’n v. Goldin Properties, Inc., 893 So.2d 1062, 1064 (Miss.Ct.App.2004). In Goldin Properties, as here, the policy was purchased pre-merger, but unlike here, the insured event also occurred pre-merger. Considering statutory provisions similar to our own and concluding the issue to be “one of statutory interpretation,” the Mississippi court observed that the insurer was not licensed to transact insurance in Mississippi either at the time the policy was issued or when the insured event occurred, and thus the insurer was not an “insolvent insurer” within the meaning of that state’s IGA statute. Id. at 1064.

Here, the opposite facts mandate an opposite result. As the trial judge concluded:

[Tjhere are no genuine issues of material fact [the] Plaintiffs insurer was a ‘member insurer’ at the time of the insured event (July 30, 2001) as defined by Florida Statute 631.54(6) and [the] Plaintiffs’ insurer was an ‘insolvent insurer’ as defined by Florida Statute 631.54(7).

For these reasons, the appellees’ motion for rehearing of Florida Insurance Guaranty Ass’n v. Karelas, 37 Fla. L. Weekly D1678 (Fla. 3d DCA July 18, 2012), is granted; that opinion is set aside and the judgment under review is

Affirmed.

      1. Section 631.54(7), Florida Statutes (2011) provides:
      "Member insurer” means any person who writes any kind of insurance to which this part applies under s. 631.52, including the exchange of reciprocal or interinsurance contracts, and is licensed to transact insurance in this state.

      . "Covered claim” as defined by Mississippi Code Annotated section 83-23-109(0 is: "an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer....” An "insolvent insurer” as defined by Mississippi Code Annotated section 83-23-109(g) is: "an insurer licensed to transact insurance in this state either at the time the policy was issued or when the insured event occurred and against whom an order of liquidation with a finding of insolvency has been entered by a court of competent jurisdiction....”

        Goldin Props., 893 So.2d at 1063.

      . This analysis is certainly in keeping with the stated purpose of the Act. See Fla. Ins. Guar. Ass'n v. B.T. of Sunrise Condo. Ass’n, 46 So.3d 1039, 1041 (Fla. 4th DCA 2010) ("Section 631.55(1) mandated the creation of FIGA, and section 631.51(1) provides that its purpose is to ‘[pjrovide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.' ”).


author: LAWSON, J.

text:
    Eric WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1988.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2012.
    Eric M. Willis, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Eric Willis appeals from the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to all issues, and write only to address Willis’ claim that his trial counsel misled him as to the amount of time he could spend in prison if he entered a plea to the bench by misadvising him that gain time awards would cause him to serve only 65 percent of any sentence imposed. On appeal, the State essentially concedes error on this point, agreeing with Willis that the record attachments do not conclusively refute the misadvice allegation. However, as found by the trial court, the record attachments do conclusively demonstrate that Willis cannot show prejudice even if he was misadvised as to the lawful gain time accrual rate. As explained in the summary denial order:

[Willis] was clearly aware that he faced a maximum possible penalty of 15 years in the Department of Corrections [if he entered a plea to the bench]. Assuming [Willis’] allegation is true and he believed he would serve only 65% of his prison term, he would expect to serve [up to] 9.75 years [in prison]. However, [Willis] was sentenced to 10 years in the Department of Corrections and must serve at least 85% of his sentence for a term of 8.5 years, which is less than he expected [as a possible term of incarceration upon entering the plea].

We agree with this reasoning.

AFFIRMED.

EVANDER and BERGER, JJ., concur.


text:
    Charles Ernest ROOD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5616.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2012.
    Rehearing Denied Feb. 6, 2013.

      Charles Ernest Rood, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, C.J., ROBERTS and RAY, JJ., concur.


text:
    Leondray KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5266.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2013.
    Rehearing Denied Feb. 8, 2013.
    Jeffrey E. Lewis, General Counsel, Michael J. Titus, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction and sentence for second-degree murder. We affirm the conviction without comment, but we reverse certain costs imposed by the trial court and remand for correction of sentencing errors.

The State properly concedes that the trial court should have orally pronounced the $100 investigative cost, as it is a discretionary cost and not a mandatory cost. See Baker v. State, 86 So.3d 1208, 1209 (Fla. 1st DCA 2012) (citing Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011)).

The State also correctly concedes that the Public Defender fee should be struck because the trial court did not advise Appellant of his right to contest the fee when it was orally imposed. See § 938.29(5), Fla. Stat.; Fla. R.Crim. P. 3.720(d)(1). As this court has previously held, this fee must be stricken and, on remand, the trial court shall advise Appellant of his right to a hearing to contest the Public Defender fee. See Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011).

Finally, as the trial court did not impose a fine, pursuant to section 938.06(1), Fla. Stat (2009), the $20 imposition of court costs must be stricken. See Clavelle v. State, 80 So.3d 456, 457 (Fla. 1st DCA 2012); see also Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011). Accordingly, we affirm the judgment and sentence, but remand for correction of the sentencing errors. We note that if the trial court determines it will not impose any of the above fees, it is not necessary to conduct another sentencing proceeding which would require Appellant’s presence.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.

       "We recognize that, effective July 1, 2010, section 938.06(1) was amended to provide that the $20 assessment for the Crime Stoppers Trust Fund is a mandatory court cost rather than an additional surcharge on any fine imposed. See Ch.2010-162, § 31, Laws of Fla. This amendment took effect after the date of [Appellant’s] offense and, thus, the 2009 version of the statute applies in this case.”

        Sanders v. State, 101 So.3d 373, 377 n. 3 (Fla. 1st DCA 2012) (citing Comer v. State, 502 So.2d 513 (Fla. 1st DCA 1987)).


author: ROTHENBERG, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Roshani DESAI, Respondent.
    No. 3D12-2586.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2013.
    Rehearing Denied Feb. 19, 2013.
    Russo Appellate Firm, P.A., and Elizabeth K. Russo; Chimpoulis Hunter & Lynn, P.A., and Brian C. Hunter, for petitioner.
    Arnold R. Ginsberg, for respondent.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Roshani Desai filed a declaratory action to determine whether an alleged “plumbing loss” was covered by her homeowners’ insurance policy issued by State Farm Florida Insurance Company (“State Farm”). Prior to a determination as to coverage, the trial court entered a discovery order requiring State Farm to (1) produce claim manuals and/or guidelines relating to certain policy language and (2) provide a representative to testify as to the claims manual, guidelines, and insurance policy.

In seeking certiorari review of the discovery order, State Farm contends Florida law “prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling materials until contract/coverage litigation has been concluded.” As State Farm’s argument is well taken, we grant the petition for writ of certiorari and quash the discovery order under review. Gen. Star Indent. Co. v. Atl. Hospitality of Fla., LLC, 93 So.3d 501, 503 (Fla. 3d DCA 2012) (granting certiora-ri and quashing a discovery order because the order prematurely “compels the production of materials concerning the insurer’s business policies and practices before there has been a determination of coverage and the extent of loss”) (emphasis added); see also State Farm Fla. Ins. Co. v. Ramirez, 86 So.3d 1198 (Fla. 3d DCA 2012); Gov’t Emps. Ins. Co. v. Rodriguez, 960 So.2d 794 (Fla. 3d DCA 2007); Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865 (Fla. 3d DCA 2000).

Petition granted; order quashed.