author: CONNER, J.

text:
    Omar LOUREIRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3406.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Rehearing Denied Jan. 24, 2014.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Omar Loureiro appeals his conviction and life sentence for first-degree murder. The primary issue we address is the admissibility of a second confession given after abbreviated Miranda warnings. Loureiro moved to suppress his confession for failure to comply with Miranda. We reverse and remand for a new trial because the second confession should have been suppressed for failure to give full Miranda warnings. We affirm, after discussion, the admission of evidence of the victim’s reputation for peacefulness because the issue may arise again on retrial.

Factual Background and Trial Proceedings

The facts adduced at trial showed that Loureiro and J.L. had been drinking together with friends at two different bars. One witness testified that, at one of the bars, Loureiro made a threatening statement to J.L. to stay away from a woman, in whom Loureiro was interested, or he would kill J.L. The witness further testified that Loureiro emphasized the threat by moving his finger across J.L.’s neck in a slicing gesture. However, other witnesses testified that Loureiro and J.L. were on friendly terms the entire evening, including when they left the second bar. Loureiro and J.L. left the second bar and went to J.L.’s apartment, which he shared with one of the witnesses.

J.L.’s roommate returned to the apartment the next morning and found J.L. dead at the door to J.L.’s bedroom. According to the medical examiner, J.L. was stabbed several times. There was also an incised or slicing-type wound on his neck; its width expanded across the neck and the depth reached from the front on the neck to the front of his spine. J.L.’s hands were bruised. The bruises on his left hand and wrist were consistent with defensive wounds. The medical examiner also found petechial hemorrhages in J.L.’s eyes, which could have been caused by choking or compressing his neck and throat. He explained that it appeared that all injuries were inflicted while J.L. was in the bedroom.

Immediately after the murder, Loureiro fled to Nicaragua. While there, he was incarcerated for other reasons. After determining Loureiro was in jail in Nicaragua, two detectives travelled to interrogate him on August 1, 2002. They began the interrogation by giving him complete Miranda warnings in Spanish and English, reading from a card. Loureiro admitted to stabbing and murdering J.L., but contended that it was in self-defense because J.L. made aggressive sexual advances toward him (“the Nicaraguan confession”).

Loureiro was indicted by a grand jury in 2004 and charged with the premeditated murder of J.L. In January 2005, Lourei-ro was expelled from Nicaragua. Upon his return to the United States, he was arrested for J.L.’s murder. Shortly after his arrest, he was interrogated again and gave a video-recorded second confession (“the recorded second confession”), which was virtually the same as the Nicaraguan confession. At the beginning of the second recorded interrogation, one of the detectives made mention of the Nicaraguan interrogation and then proceeded to give partial Miranda warnings: ‘You have the right to remain silent; anything you say can be used against you; you have the right to an attorney; if you can’t afford one, one will be appointed for you at no charge, all right?” Loureiro stated he understood his rights and agreed that he remembered when he spoke to the detective in Nicaragua. During the second interrogation, he again admitted to losing control and stabbing J.L., but contended his actions were in self-defense because J.L. made aggressive sexual advances toward him.

After a jury trial, Loureiro was convicted of the murder and sentenced to death in 2007. While his direct appeal was pending, our supreme court remanded the ease for an evidentiary hearing. During the remand, the state agreed his conviction should be vacated, which resulted in the case being returned to the circuit court for a new trial.

The retrial lasted eight days. Loureiro did not testify or put on any evidence. During the retrial, the Nicaraguan confession was not introduced into evidence. Instead, the State introduced portions of the recorded second confession. In the portions of the recording played by the State, Loureiro explained that he told J.L. he wasn’t “like that,” meaning gay, but J.L. “grabbed” him and “went down on” him, which led the two to get into a fight. He explained: “I was mad. I got mad. I mean, I didn’t know this guy was gay like that and if he’s a gay guy, I don’t care, but you know, not to attack me like force me to do something that I don’t want.” He said J.L. pulled his pants down and he (Loureiro) went totally “berserk.” He grabbed something nearby and cut the man. He did not know what he did with the weapon afterward. He lost his senses and just went crazy.

After the State played its portions of the recorded second confession, Loureiro played additional portions of the same interview pursuant to the rule of completeness. In the portion played by the defense, Loureiro explained that he fled to Nicaragua because he was on probation at the time and feared he would go to prison for violating probation. He made multiple references to J.L. grabbing him, pulling his pants down and trying to force him to have sex, but in the portion played by the defense, Loureiro additionally said, “[He had] to grab something [to defend himself with] ... if not, I would have — he would have fucked me.”

To rebut the defense presentation of Loureiro’s statements of self-defense during the second recorded confession, the State presented the testimony of three witnesses regarding J.L.’s reputation for peacefulness. Loureiro objected, contending that the presentation of evidence under the rule of completeness did not authorize the State to introduce evidence of the victim’s reputation for peacefulness. The objection was overruled.

The State conceded in closing argument that the only evidence directly linking Loureiro to J.L.’s death was his confession to law enforcement. On retrial, the jury found Loureiro guilty as charged, but did not recommend the death penalty.

Legal Analysis

The Recorded Second Confession

Loureiro moved to suppress the recorded second confession based on inadequate Miranda warnings. The motion was denied. In reviewing an order on a motion to suppress a confession, an appellate. court is to accord a presumption of correctness to the trial court’s rulings with regard to the trial court’s determination of historical facts, but must independently review mixed questions of law and fact that ultimately determine constitutional issues. Rigterink v. State, 66 So.3d 866, 884 (Fla.2011). The State bears the burden of establishing by a preponderance of evidence that the confession was freely and voluntarily given. Id.

The delivery of Miranda warnings at the beginning of the interrogation leading to the second confession was recorded. Loureiro was told by the detective:

All right, you know, because we’re here in the states now, before you can — I can talk to you about this, I have to tell you, about your rights. You have the right to remain silent; anything you say can be used against you; you have the right to an attorney; if you can’t afford one, one will be appointed for you at no charge. All right?

The trial court concluded that Loureiro was properly advised of his Miranda rights because he was told that he had the right to remain silent and the right to an attorney. The right to an attorney was without a time reference. For that reason, the trial court concluded that “no confusion was created by the manner in which Defendant was advised of his rights.” Unfortunately, the trial court’s application of the law was incorrect.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court outlined the procedural parameters that law enforcement must employ before and during a custodial interrogation of a suspect. The Court was explicit about four invariable warnings that must be given:

He must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed to him prior to any questioning if he so desires.

Id. at 478-79, 86 S.Ct. 1602 (emphasis added). Most importantly to this appeal, Miranda held “that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege' [against self-incrimination] we delineate today.” Id. at 471, 86 S.Ct. 1602 (emphasis added). The third warning has been interpreted to mean that the suspect is entitled to have counsel present both before and during an interrogation if the suspect so desires. California v. Prysock, 453 U.S. 355, 360-61, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (explaining that the presence of counsel includes the right to a lawyer before the suspect is questioned, while the suspect is being questioned, and all during the questioning). Miranda also makes clear “unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of the interrogation can be used against [the defendant].” Miranda, 384 U.S. at 479, 86 S.Ct. 1602.

As can be gleaned from the language of Miranda, the point of the third warning is to advise the suspect of his or her right to “the presence of an attorney.” It is clear from the warnings given to Loureiro before his second confession that he was advised “you have the right to an attorney,” but he was told nothing about his right to the presence of an attorney before or during questioning. The State argues, as the trial judge concluded, there was no time reference to the right to counsel; thus, Loureiro was adequately advised as to his right to the presence of counsel both before and during questioning. Failure to state a time reference for the right to counsel does not affirmatively convey the notion one is entitled to talk to a lawyer before questioning and to have a lawyer present during questioning. Being told, “you have the right to remain silent,” followed by “anything you say can be used against you,” implies there may be further proceedings. By giving those warnings and then immediately advising “you have the right to an attorney,” one could infer the right to counsel refers to further proceedings. The State argues that the warning given to Loureiro “tracked the language of Miranda,” but that is simply not accurate. The combination of words used to warn Loureiro did not meet the requirements of Miranda because they fail to affirmatively convey a notion of the right to the presence of an attorney before and during questioning.

The State makes an additional argument that because Loureiro was properly advised of Miranda warnings during the Nicaraguan interrogation and he acknowledged at the beginning of the recorded second confession that he was advised of his rights at his first interrogation, there was no need to give full Miranda warnings before questioning during the second interrogation. However, the State provided no citations of authority allowing full warnings given two years prior to authorize abbreviated warnings at the beginning of a second interrogation.

We first observe that the facts of this case are distinguishable from cases which address the need for fresh and complete Miranda warnings when interrogation resumes after the defendant has invoked the right to remain silent or right to counsel during an earlier interrogation. However, there are four supreme court decisions in Florida which discuss whether fresh Miranda warnings are needed when there is a relatively brief interruption or delay between interrogations, which is not caused by the defendant invoking the right to remain silent or the right to counsel.

The most recent discussion appears in McWatters v. State, 36 So.3d 613 (Fla.2010), which in turn discussed Escobar v. State, 699 So.2d 988 (Fla.1997), and Nixon v. State, 572 So.2d 1336 (Fla.1990). McWatters was arrested for crimes unrelated to the homicides and sexual batteries which were the subject of the appeal. The arresting officer gave McWatters full Miranda warnings at the time of his arrest. Very shortly after being arrested, McWatters asked to speak to a different detective. When speaking to the other detective, McWatters made incriminating statements regarding the crimes on appeal. Before speaking to McWatters, the other detective did not give any Miranda warnings. Although the court noted the record did not reveal exactly how much time had passed between the Miranda warnings by the arresting officer and the interview by the other detective, it was clear the interlude was comparatively brief. McWatters sought to suppress his statements to the other detective because he was not given Miranda warnings. In upholding the admission of McWatters’ statements, the court wrote:

McWatters’ more general argument that not readvising him of his Miranda rights immediately before his interview was constitutionally unsound is also without merit. Neither the United States Supreme Court nor any Florida court has set an “expiration date” on properly administered Miranda warnings where the defendant does not invoke his rights. To the contrary, in Escobar v. State, 699 So.2d 988, 994 (Fla.1997), abrogated on other grounds by Connor [v. State], 803 So.2d [598] at 608 [(Fla.2001)] this Court rejected an argument that Escobar’s statement made six hours after questioning began should have been suppressed because it was not immediately preceded by a Miranda warning. Similarly, in Nixon v. State, 572 So.2d 1336, 1344 (Fla.1990), this Court found a waiver valid where the interrogating detective only partially reminded the defendant of his Miranda rights, because the defendant had previously been given a full reading of his rights approximately eight hours prior to the interview.

McWatters, 36 So.3d at 626.

In Johnson v. State, 660 So.2d 637 (Fla.1995), although the description of facts surrounding the interrogations is brief, it appears Johnson was given full Miranda warnings and interrogated, at which time he did not make incriminating statements. However, when Johnson agreed to take a polygraph test, the interrogation was interrupted. After he failed the polygraph test, the interrogation resumed, but neither fresh nor abbreviated Miranda warnings were given. The court found no error with admitting the confession into evidence because “[t]here is no requirement of additional warnings during the same period of interrogation where it is clear detainees are aware of their rights.” Id. at 642.

There is one Florida case, Davis v. State, 698 So.2d 1182, 1189 (Fla.1997), which discusses whether renewed Miranda warnings are needed prior to a subsequent interrogation where there is a significant gap in time between interrogations. Davis was given full Miranda warnings during a recorded interrogation on March 18. The following May, he wrote a note asking to speak to detectives about the case. The request prompted a second recorded interrogation on May 26. At the beginning of the second interrogation, the detectives asked Davis if he was willing to proceed without the advice of counsel, to which he responded yes, but specific Miranda warnings were not recited. Davis moved to suppress the May 26 interrogation, contending that his Miranda rights were violated. The supreme court wrote:

As to the second taped confession, given on May 26, Davis was not given a fresh set of Miranda warnings, although he was reminded of his right to the advice of counsel. However, numerous state and federal courts have rejected the tal-ismanic notion that a complete readvisement of Miranda warnings is necessary every time an accused undergoes additional custodial interrogation. See Brown v. State, 661 P.2d 1024 (Wyo.1983), and cases cited therein. Rather than adhere to an overly mechanical application of Miranda, we believe that once Miranda has been complied with, the better test for admissibility of statements made in subsequent or successive custodial interrogations is whether the statements were given voluntarily. Such an inquiry must consider the totality of the circumstances. We recede from those portions of Kight and Christ mas that may be inconsistent with this analysis.[]
In this case, Davis had previously received full Miranda warnings and he validly waived them. There is no evidence of coercion; in fact, Davis was responsible for initiating the contact that led to this second taped confession. He was once again apprised of his right to counsel. Under these circumstances, we conclude that the second taped confession was voluntary and that the underlying concerns of Miranda were fully satisfied. Thus, there was no error in admitting the second taped confession.

Davis, 698 So.2d at 1189. Davis is distinguishable from the facts of this case on two points. In Davis, it was the defendant who reinitiated contact with law enforcement to discuss the case further. Also, the delay between interrogations in Davis was a little more than two months; here, the delay was at least two years and four months.

Davis appears to reject a mechanical application of Miranda and adopt a totality of the circumstances test in determining whether statements from a subsequent or successive custodial interrogation were voluntarily made and thus admissible, despite a failure to give fresh or abbreviated Miranda warnings. Davis was decided in 1997. No other Florida decision has cited the test suggested in Davis. Although the supreme court did not agree to a mechanical application of Miranda in Davis where the delay between interrogations was a little more than two months, we doubt the supreme court would use a less mechanical application where the delay is at least two years and four months.

We agree with Loureiro’s arguments that his second recorded confession was inadmissible for failure to comply with Miranda. The admission of his confession was not harmless error; thus we reverse and remand for a new trial.

Victim’s Reputation for Peacefulness

After the defense introduced portions of the recorded second confession to buttress its theory of self-defense, the trial court permitted the State to introduce evidence of J.L.’s reputation for peacefulness through three witnesses. Loureiro’s objection to such evidence was overruled. Whether an objection is erroneously overruled is reviewed by an abuse of discretion standard. Manning v. State, 801 So.2d 207 (Fla. 4th DCA 2001). However, the rules of evidence limit the trial court’s discretion. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

Section 90.404, Florida Statutes (2001), provides that evidence of a person’s character is inadmissible to prove action in conformity with the character trait, with some exceptions. The specific exception pertinent to this case is section 90.404(l)(b)2., which allows for the admission of “[e]vidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.”

In support of his contention that the trial court erred, Loureiro cites to the only Florida case which makes a specific reference to section 90.404(l)(b)2: Peterka v. State, 890 So.2d 219, 244 (Fla.2004). In Peterka, the defendant asserted that appellate counsel was ineffective for failing to raise as error the admission of evidence of the victim’s reputation for peacefulness. Trial counsel’s objection to the evidence was overruled.

The supreme court concluded that the trial court erred in allowing evidence of the victim’s reputation for peacefulness to be presented to the jury for two related reasons. First, the court noted that the State elicited the testimony regarding the victim’s reputation for peacefulness before its presentation of Peterka’s statement that the victim initiated a physical confrontation. Thus, this evidence could not have been used at that point to rebut evidence that the victim was the aggressor. Id. Second, quoting from its prior decision in Stoll v. State, 762 So.2d 870, 875 (Fla.2000), the court said, “[the] State may not introduce rebuttal evidence to explain or contradict evidence that the State itself offered.” Id. It is this language in Peterka and Stoll upon which Loureiro relies on in support of his argument.

A careful reading of Peterka leads us to conclude that Loureiro misunderstands what the supreme court meant when it wrote that the State may not use rebuttal evidence to contradict evidence the State itself offered. However, if indeed the supreme court announced in Peterka and Stoll a legal principle that the State may not introduce rebuttal evidence to explain or contradict evidence that the State itself offered, then like most legal principles, there are exceptions. A trial must be a search for the truth. Jones v. Atkinson, 974 So.2d 573, 576 (Fla. 1st DCA 2008) (explaining that a trial court has broad discretion to rely on its talents, knowledge, and experience to keep search for the truth in a proper channel).

Florida, like the federal courts, has enacted a statute specifically addressing the admissibility of evidence by the State regarding the victim’s character for peacefulness in homicide cases. In commentary on the history of the federal rule of evidence, it has been said that Senator McClellan, in urging adoption of the special rule, argued that:

Too little is said now in behalf of the victims of crime. When the dead man cannot speak in his own behalf, his good name in the community ought to speak for him, when either his character or his conduct is attacked by the accused.

Kenneth W. GRAham, JR., FedeRal Practice & Procedure § 5237 (quoting 117 Cong. Rec. 38643 (1971)). Wigmore put it this way: “The State also can of course offer the deceased’s peaceable character when the issue of self-defense has been raised, even though the defendant has not first introduced the deceased’s violent character;....” Id. (quoting 1 Wigmore, Evidence § 63 at 471 (3d ed. 1940)).

We also note that the language of section 90.404(l)(b)2. does not state the rebuttal evidence is limited to rebutting evidence presented by the defense that the victim was the aggressor. If the point of the statute is to allow evidence “when the dead man cannot speak in his own behalf’ and “when either his character or his conduct is attacked by the accused,” it must be appropriate to allow such evidence when the State is forced to introduce evidence of the defendant’s confession alleging self-defense to prove the defendant did the killing. Except for the words of Lour-eiro, there was no evidence in this case about J.L.’s conduct to suggest he would engage in physical aggression against Loureiro and there was no physical evidence to suggest aggression on the part of J.L. Thus, we conclude section 90.404(l)(b)2. is a statutory exception if the supreme court has adopted a legal principle that the State may not introduce rebuttal evidence to explain or contradict evidence which the State itself offered and the State is forced to admit a confession contending self-defense as the only evidence which proves the defendant was the killer.

The State argues this case is distinguishable from Peterka because here the defense offered evidence of self-defense that went beyond evidence presented by the State. We find the argument supports another basis for an exception to the principle that the State may not introduce rebuttal evidence to explain or contradict evidence that the State itself offered. The State introduced portions of Loureiro’s recorded second confession because it was the only evidence that directly connected him to the murder and there was insufficient evidence to circumstantially link him to the murder. Knowing the defense would use the rule of completeness to admit portions of the recording to show Loureiro acted in self-defense, the State initially presented only those portions of the confessions that showed Loureiro got mad at J.L. for making certain sexual advances towards him, and Loureiro’s admission that he went berserk and killed J.L.

In contrast, in the name of completeness, Loureiro introduced additional portions of the confession in which he described a significantly different and more aggressive sexual assault by the victim. Evidence presented by the defense to enhance the description of the victim’s aggression in a completely different direction from that presented by the State should be an exception to the legal principle that the State may not introduce rebuttal evidence to explain or contradict evidence that the State itself offered. Thus, because the defense presented different evidence of self-defense, the State was allowed to rebut that under section 90.404(l)(b)2.

We do not believe the supreme court has announced a new legal principle in Peterka or Stoll establishing that the State can never introduce rebuttal evidence to explain or contradict evidence that the State itself offered. Instead, we believe the supreme court intended to prohibit the State from setting up a strawman scenario to introduce evidence of the victim’s character for peacefulness. However, if we are incorrect, then we determine that exceptions to the principle apply in this case, and the trial court did not err in admitting rebuttal evidence as to the victim’s reputation for peacefulness.

Reversed and remanded for a new trial.

TAYLOR and MAY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Loureiro raises seven issues on appeal. We affirm on the remaining five issues without discussion.

      . The State alleged that the killing occurred on January 2, 2001. The delay in indictment was due to Loureiro's flight to Nicaragua.

      . On retrial, the case was assigned to a Fifteenth Circuit judge. The venue for the retrial remained in Broward County (the Seventeenth Circuit).

      . Although the explanation is not clear from the record, arguments in the briefs indicate the State chose not to use the Nicaraguan confession because the defense was contesting that proper Miranda warnings were given pri- or to that confession. The defense wanted to call a Nicaraguan jail official to seek suppression of the confession, but was having difficulty securing the presence of the official for a hearing or trial. To avoid an appellate issue regarding the Nicaraguan confession, the State made a tactical decision to use the recorded second confession for the retrial.

      . Section 90.108(1), Florida Statutes (2001).

      . In Rigterink, our supreme court stated "for a Florida court to admit a confession, ‘the confession [] must pass muster under both the state and federal constitutions.... [A court must] examine the confessions initially Under our state Constitution; only if they pass muster here need we re-examine them under federal law.’ That is because '[i]n any given state, the federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling.’ ” Rigterink, 66 So.3d at 888 (internal citations omitted). Because we have determined the warnings given Loureiro do not meet federal muster, we do not address whether the warnings were adequate under the Florida Constitution.

      . In Kight v. State, 512 So.2d 922 (Fla.1987), the supreme court held that a defendant who reinitiated contact with law enforcement after having invoked his right to counsel was entitled to fresh Miranda warnings. In Christmas v. State, 632 So.2d 1368 (Fla.1994), the supreme court held fresh Miranda warnings were not needed if the defendant reinitiated conversation with law enforcement after invoking his right to counsel and had provided information about the case during the first interrogation prior to invoking his right to counsel.

      . In State v. Hunt, 14 So.3d 1035 (Fla. 2d DCA 2009), the Second District cited to Davis, but merely for the proposition that our supreme court has rejected "an overly mechanical application of Miranda.” Id. at 1041. (quoting Davis, 698 So.2d at 1189).

      . Interestingly, a search of case law regarding the comparable federal evidence code provision, Federal Rule of Evidence 404(a)(2)(c), reveals no reported cases.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    MORRIS PUBLISHING GROUP, LLC, d/b/a The Florida Times-Union, Petitioner, v. FLORIDA DEPARTMENT OF EDUCATION and The Florida Education Association, Respondents.
    No. 1D13-1376.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rehearing Denied March 21, 2014.

      George D. Gabel, Jr. and Jennifer A. Mansfield of Holland & Knight, LLP, Jacksonville, for Petitioner.
    Matthew J. Carson, General Counsel, and Steven S. Ferst, Deputy General Counsel, Tallahassee, for Respondent Florida Department of Education.
    Pamela L. Cooper, General Counsel, Florida Education Association, and Ronald G. Meyer, Jennifer S. Blohm and Lynn C. Hearn of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, for Respondent Florida Education Association.
   VAN NORTWICK, J.

Morris Publishing Group, Inc., challenges a final order denying its “emergency petition for a writ of mandamus or complaint for declaratory relief.” By this pleading Morris Publishing sought access to certain records maintained by the Florida Department of Education (DOE). Because we hold that these records are not exempt from disclosure pursuant to Florida’s public records law, we reverse.

On the authority of section 1012.34(3), Florida Statutes (2012), the DOE assesses teachers by comparing the score a certain student is predicted to obtain on the Florida Comprehensive Assessment Test (the “FCAT”), administered under section 1008.22(3)(c), Florida Statutes (2012), with the FCAT score actually obtained by the student. The amount by which an actual FCAT score is greater than the predicted score is known as the “value added” by a given teacher. The “value added” measurement (VAM) for Florida teachers is documented by the DOE and is used in a teacher’s annual evaluation by local school districts pursuant to section 1012.34.

In October 2012, a reporter for The Florida Times-Union, a newspaper owned by Morris Publishing, made a public records request of DOE. Specifically, the newspaper sought the VAM for Florida teachers during the previous two years. This request was later amended to seek three years of VAM records. The Times-Union was seeking immediate release of VAM data. Florida statutory law provides for eventual release of VAM data following “the end of the school year immediately following the school year in which the evaluation was made.” § 1012.31(3)(a)2, Fla. Stat. (2012).

The DOE declined to produce those records. After some negotiating with the DOE and the Governor’s office, the newspaper filed in the circuit court for Leon County a pleading entitled “emergency petition for a writ of mandamus or complaint for declaratory relief.” The Florida Education Association (FEA) was allowed to intervene over the objection of the newspaper. A show cause order was issued, and the DOE and FEA responded.

After a hearing and after receiving proposed orders, the circuit court denied the requested relief. The circuit court found that under the plain meaning of section 1012.31(3)(a)2, which exempts teacher evaluations from public records disclosure, a VAM score is exempt because it is a teacher evaluation. The fact that the DOE collects the data and then distributes it to school systems is not a dispositive fact, reasoned the circuit court, citing Rush v. High Springs, 82 So.3d 1108 (Fla. 1st DCA 2012) and Ragsdale v. State, 720 So.2d 203 (Fla.1998). Further, the circuit court found that the fact that the VAM data is not a final evaluation is likewise not dis-positive. The circuit court reasoned that if the Legislature had intended to limit the exemption to a final evaluation, it would have said so in the statute, and that section 1012.31 would be rendered meaningless if VAM data was subject to disclosure. The circuit court ruled that VAM data is exempt from disclosure as a public record until the end of the school year immediately following the school year in which the evaluation was made.

The newspaper argues on appeal that the circuit court erred in allowing the FEA to intervene and in ruling that, pursuant to section 1012.31, VAM data is exempt from disclosure under Florida’s public records law, section 119.07(1), Florida Statutes (2012). As for the intervention issue, we find no merit in this argument and affirm without further comment. We cannot agree, however, with the circuit court’s construction of Florida’s public records law.

“The determination of what constitutes a public record is a question of law entitled to de novo review.” Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008, 1013 (Fla.2003); State v. City of Clearwater, 863 So.2d 149 (Fla.2003). The Florida Constitution creates a broad right to inspect the records of any state or local governmental body. Article I, section 24(a) of the Florida Constitution provides “[e]very person ... the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf. ...” Consistent with this constitutional mandate, the public records law is to be construed “liberally in favor of the state’s policy of open government.” Nat’l Collegiate Athletic Assoc. v. Associated Press, 18 So.3d 1201, 1206 (Fla. 1st DCA 2009). If there is any doubt as to whether a matter is a public record subject to disclosure, the doubt is to be resolved in favor of disclosure. Id. The State bears the burden of showing that requested material meets the statutory requirements for exemption from public disclosure. Lightbourne v. McCollum, 969 So.2d 326, 333 (Fla.2007).

Section 1012.31provides in pertinent part:

1012.31 Personnel files. — Public school system employee personnel files shall be maintained according to the following provisions:
(3)(a) Public school system employee personnel files are subject to the provisions of s. 119.07(1) [i.e., the public records act], except as follows:
2. An employee evaluation prepared pursuant to s. 1012.33, s. 1012.34, or s. 1012.56 or rules adopted by the State Board of Education or district school board under the authority of those sections shall be confidential and exempt from the provisions of s. 119.07(1) until the end of the school year immediately following the school year in which the evaluation was made. No evaluation prepared before July 1, 1983, shall be made public pursuant to this section.
(4) The term “personnel file,” as used in this section, means all records, information, data, or materials maintained by a public school system, in any form or retrieval system whatsoever, with respect to any of its employees, which is uniquely applicable to that employee whether maintained in one or more locations.

While section 1012.31(3)(a)2 provides that the evaluation of a public school teacher is not subject to disclosure under the public records law, it does not follow that any information or data used to prepare the evaluation is likewise exempt from disclosure. To so hold would be to expand an exclusion to the public records act beyond what was plainly intended by the Legislature, which a court may not do. See News-Press Publ’g Co. v. Wisher, 345 So.2d 646 (Fla.1977); News-Press Publ’g Co. v. Gadd, 388 So.2d 276 (Fla. 2d DCA 1980).

Furthermore, the VAM data, collected and collated by DOE, is not part of a given teacher’s evaluation until the data is sent to a teacher’s school system, which by statute is the agency which prepares the evaluation. Subsection 1012.34(3)(a) provides that a classroom teacher’s evaluation must be conducted at least once a year. This statute also provides that the assessment criteria in the evaluation additionally must include assessment of a teacher’s instructional practice based on evaluation criteria to be used when observing classroom teachers, instructional leadership, and professional and job responsibilities as adopted by the State Board of Education and local school boards. The VAM data is thus only one part of a larger spectrum of criteria by which a public school teacher is evaluated; it is not, by itself, the “employee evaluation.” Had the Legislature wanted any matter material to a teacher’s evaluation to be exempt from disclosure, the Legislature would have exempted personnel files as a whole. To the contrary, personnel files of public school teachers are generally subject to disclosure. § 1012.31(3)(a), Fla. Stat. (2012). Only the “employee evaluation” is exempt from the provisions of section 119.07(1). Given the strong public policy in Florida in favor of public records disclosure under the State Constitution and section 119.07(1), we reverse. Nat’l Collegiate Athletic Ass’n, 18 So.3d at 1206.

CLARK and SWANSON, JJ., concur.


author: SLEET, Judge.

text:
    Bruce D. BERLINGER, Appellant, v. Roberta Sue CASSELBERRY, Appellee.
    No. 2D12-6470.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Rehearing Denied March 12, 2014.
    See also — So.3d -, 2013 WL 6212021.

      Michael R. Presley, Robert M. Presley, and Steven M. Presley of Presley Law and Associates, P.A., Wellington, for Appellant.
    Michael A. Hymowitz of Braverman and Hymowitz, Fort Lauderdale, for Appellee.
   SLEET, Judge.

Bruce Berlinger, the former husband, appeals an order of the trial court granting Roberta Casselberry’s, the former wife, motion for contempt and motion for a continuing writ of garnishment over any disbursements made from the Berlinger Discretionary Trusts to or for the benefit of Berlinger (the garnishment order). Ber-linger argues that the order violates the provisions of sections 736.0503(3) and 736.050.4, Florida Statutes (2011). We affirm the portion of the order granting contempt without further discussion. Because the court had the ability to enter an order granting writs of garnishment against the discretionary trusts, we affirm.

I. BACKGROUND

“Oh what a tangled web we weave when we first practice to deceive.” Although financially able to pay, Berlinger and his attorneys went to extraordinary lengths to avoid his support obligation to Casselber-ry.

After thirty years of marriage, Berlinger and Casselberry divorced in 2007. Pursuant to a marital settlement agreement ratified by the court and incorporated into the final judgment of dissolution, Berlinger agreed to pay Casselberry $16,000 a month in permanent alimony. Thereafter, Berlinger and his current wife enjoyed a substantial lifestyle sustained through payments made to Berlinger directly or on his behalf by the Berlinger Discretionary Trusts. The trusts paid for all of his living expenses including, but not limited to, mortgage payments, property taxes, insurance, utilities, food, groceries, and miscellaneous living expenses. Although he continued to live on the substantial proceeds of the Berlinger Discretionary Trusts, Ber-linger voluntarily stopped paying alimony in May 2011.

When Berlinger stopped paying alimony, Casselberry filed a motion to enforce and for contempt and set it for hearing in August 2011. Just prior to the hearing, the parties reached a settlement wherein Berlinger agreed to satisfy his alimony arrears by liquidating an IRA account. An agreed order was entered August 25, 2011. After the IRA liquidation, $32,625.54 plus interest remained owing on the arrears judgment. The court issued writs of garnishment to SunTrust as trustee to the Berlinger Discretionary Trusts.

Unbeknownst to Casselberry, Berlinger executed deeds on July 21, 2011, conveying his two-third interest in his real property, including his residence (the Banyon Property), into a never-before-disclosed trust, the Schweiker-Berlinger Irrevocable Life Insurance Trust. Michael Presley, Ber-linger’s attorney, enlisted the assistance of his longtime friend, attorney Richard In-glis, to prepare the deeds and set up the new trust.

Berlinger reported his two-third interest in the Banyon Property to be worth $1,386,000; the deed reflected that he was the sole holder of the beneficial interest in the new trust. Berlinger never amended or supplemented his financial disclosures to reveal the real property transfer or the existence of the Schweiker-Berlinger Irrevocable Life Insurance Trust. To the contrary, Berlinger gave a deposition eight days after he executed the deeds and set up the new trust and swore that there were no life insurance trusts and that he was no longer the trustee for any of the family trusts. However, Casselberry’s discovery efforts revealed this new trust, that attorney Presley was named as trustee, and that Berlinger was trustee until October 11, 2011.

Around September 2011, Berlinger was provided a Visa card from SunTrust Bank (the then corporate co-trustee of the Ber-linger Discretionary Trusts) to use for paying expenses not directly paid by the trusts. The trusts paid the Visa credit card bills, including expenses for travel, entertainment, clothing, medical expenses, grooming, gifts, and Berlinger’s current wife’s credit card bills.

In January 2012, Casselberry filed a second motion for civil contempt and enforcement against Berlinger. On January 17, 2012, the trial court issued writs of garnishment against SunTrust. Neither Ber-linger nor SunTrust objected to these writs.

On April 26, 2012, Casselberry filed a motion for continuing writ of garnishment against SunTrust seeking to attach the present and future distributions made to or for the benefit of Berlinger from any trust. Casselberry alleged that traditional methods of enforcing alimony were insufficient. Attorney Presley filed a response in opposition to garnishment on behalf of SunTrust. The trial court set a hearing on that motion for November 6, 2012.

While the garnishment and family law matters were proceeding, the probate court removed SunTrust and substituted attorney Inglis as the new corporate trustee. SunTrust transferred all of the Ber-linger Discretionary Trusts’ funds and assets to Inglis’s designated custodian, Rochdale, a securities firm. Thereafter, attorney Presley filed a motion on behalf of SunTrust Bank and Inglis seeking to substitute Inglis for SunTrust as a party to the ongoing family law case.

On November 5, 2012, one day before the hearing on Casselberry’s motion for continuing writs of garnishment, Inglis withdrew his motion for substitution and filed an action seeking a declaration that the family trusts at issue were discretionary trusts.

During the November 6, 2012, hearing, Inglis testified that for the past year, the trustees, including Inglis, had not made any payments directly to Berlinger. Instead, the trustees made payments on behalf of Berlinger directly to his creditors and utilities. He asserted that the trusts were discretionary and opined that the applicable trust statute, section 736.0504, prohibited any creditor, including Cassel-berry, from attaching any distributions paid on behalf or for the benefit of Ber-linger.

Additional evidence adduced at the hearing revealed that Berlinger and his current wife continued to live on the Banyon Property and that the mortgage loan for the property remained in Berlinger’s name. Neither Berlinger nor his wife were employed and neither of them intended to look for work. All of their expenses were paid by the trusts. To avoid making distributions directly to Berlinger, the Ber-linger Discretionary Trusts, by and through Inglis, directly paid for Berlinger and his current wife’s health insurance and household expenses, including: the mortgage, property taxes, homeowner’s insurance, electricity, water, garbage, sewer, telephone, internet, lawn care, pool care, and pest control.

Evidence regarding the Visa credit card given to Berlinger in September 2011 was admitted. The credit card bills all went to the trustee who paid them from the trust assets. Berlinger also took cash advances on the card to pay their maid, provide cash to his current wife, and to pay her personal expenses.

On November 27, 2012, the trial court entered orders granting Casselberry’s motion for continuing writs of garnishment and the motion for substitution, which substituted Inglis as the garnishee as to the continuing writs of garnishment. The order on the continuing writs provided that all distributions made directly or indirectly to, on behalf of, or for the benefit of Ber-linger by the trustees of all the Berlinger Discretionary Trusts to which Berlinger was a beneficiary would be made payable to Casselberry unless, at the time of any future distributions, there was no alimony or alimony arrears owed. Further, the order provided that if the trustee wished to make distributions to Berlinger beyond the amount of the then outstanding amount of alimony, the trustee must seek court approval before doing so to ensure that there remained sufficient assets in the trust to secure the continued payment of alimony.

Berlinger and Inglis pursued separate appeals. See Inglis, slip op. at 1, — So.3d at -.

II. ANALYSIS

A. Discretionary Trusts

Berlinger argues that section 736.0504 specifically prohibits Casselberry from attaching distributions made to or for Berlinger because the trusts are discretionary trusts and are afforded greater protection from creditors under the Florida Trust Code. We disagree. We conclude that the Florida Supreme Court’s decision in Bacardi v. White, 463 So.2d 218 (Fla.1985), is controlling. See also §§ 736.0503, 736.0504.

Because resolving this issue involves statutory interpretation, we review the trial court’s order de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).

The facts of this case are very similar to the facts in Bacardi, 463 So.2d 218. The parties in Bacardi entered into a marital settlement agreement during the divorce process in which the former husband agreed to pay the former wife $2000 per month in alimony. Id. at 220. Soon after entry of the final judgment, he stopped paying alimony. Id. The former wife obtained two judgments for unpaid alimony and a judgment for attorney’s fees. Id. She then served a writ of garnishment on the trustee of the trust and later obtained a continuing writ of garnishment against the trust income for future alimony payments as they became due. Id.

The trustee and the former husband appealed the garnishment order, asserting that the trust could not be garnished for the collection of alimony because it contained a spendthrift provision. Id. at 221. The Florida Supreme Court concluded that, in support cases, the restraint of spendthrift trusts should not be an absolute bar to the enforcement of alimony orders. Id. at 222. The court further held that garnishment as an enforcement alternative should be allowed only as a “last resort” and that when traditional remedies available to the spouse seeking to enforce support orders are not effective, “it would be unjust and inequitable to allow the debtor to enjoy the benefits of wealth without being subject to the responsibility to support those whom he has a legal obligation to support.” Id. The court limited the right of garnishment to disbursements that are due to be made or which are actually made from the trust. Id. The court specifically addressed whether a discretionary disbursement is subject to a writ of garnishment and concluded that “[i]f disbursements are wholly within the trustee’s discretion, the court may not order the trustee to make such disbursements. However, if the trustee exercises its discretion and makes a disbursement, that disbursement may be subject to the writ of garnishment.” Id.

Like Bacardi, the trusts in this case include spendthrift provisions. As such, the provisions are not a bar to the enforcement of the alimony orders or judgment in this case. Id. The trial court’s order granting Casselberry’s motion for continuing writs of garnishment specifically finds that traditional enforcement remedies are not effective and imposes the writs as a last resort. In accordance with Bacardi, the trial court’s order granting Casselber-ry’s motion for continuing writs of garnishment against the Berlinger Discretionary Trusts was proper.

B. Sections 736.0503 and 736.0504

In 2006, the Florida legislature enacted the Florida Trust Code. Sections 736.0503 and 736.0504 of the code are especially relevant to this case. Section 736.0503, which pertains to spendthrift provisions, provides:

(2) To the extent provided in subsection
(3), a spendthrift provision is unenforceable against:
(a) A beneficiary’s child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance.
(3) Except as otherwise provided in this subsection and in s. 736.0504, a claimant against which a spendthrift provision may not be enforced may obtain from a court, or pursuant to the Uniform Interstate Family Support Act, an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances. Notwithstanding this subsection, the remedies provided in this subsection apply to a claim by a beneficiary’s ... former spouse, ... only as a last resort upon an initial showing that traditional methods of enforcing the claim are insufficient.

According to subsections (2) and (3), a spendthrift provision is unenforceable against a beneficiary’s former spouse who has a judgment or court order against the beneficiary for support or maintenance and permits the former spouse to obtain a court order attaching present or future distributions to or for the benefit of the beneficiary. Thus, the spendthrift provisions included in Berlinger’s trusts are unenforceable as to Casselberry because she has an order against him for support.

A former spouse’s remedies under 736.0503(3) are subject to the exceptions and provisions found in 736.0504. According to section 736.0504(2), a former spouse may not compel a distribution that is subject to the trustee’s discretion or attach or otherwise reach the interest, if any, which the beneficiary may have. The section does not expressly prohibit a former spouse from obtaining a writ of garnishment against discretionary disbursements made by a trustee exercising its discretion. As a result, it makes no difference that the instant trusts are discretionary. Cassel-berry is not seeking an order compelling a distribution that is subject to the trustee’s discretion or attaching the beneficiary’s interest. Instead, she obtained an order granting writs of garnishment against discretionary disbursements made by a trustee exercising its discretion.

Sections 736.0503 and 736.0504 codify the Florida Supreme Court’s holding in Bacardi Neither section protects a discretionary trust from garnishment by a former spouse with a valid order of support. The order in this case complied with the Bacardi decision and sections 736.0503 and 763.0504 of the Florida Trust Code.

C. Public Policy

Florida has a public policy favoring spendthrift provisions in trusts and protecting a beneficiary’s trust income; however it gives way to Florida’s strong public policy favoring enforcement of alimony and support orders. See Gilbert v. Gilbert, 447 So.2d 299, 302 (Fla. 2d DCA 1984) (“In light of our strong public policy toward requiring persons to support their dependents, we hold that spendthrift trusts can be garnished for the collection of arrearag-es in alimony.”); see also Bacardi, 463 So.2d at 222 (“We have weighed the competing public policies and, although we reaffirm the validity of spendthrift trusts, we conclude that in these types of cases the restraint of spendthrift trusts should not be an absolute bar to the enforcement of alimony orders or judgments.”).

III. CONCLUSION

Accordingly, we affirm the trial court’s order granting the former wife’s motion for continuing writs of garnishment.

Affirmed.

CASANUEVA and MORRIS, JJ., Concur.

      . (1) The Rosa B. Schweiker Trust; (2) the Frederick W. Berlinger Trust; (3) the Rose S. Berlinger Trust; and (4) the Schweiker-Ber-linger Irrevocable Life Insurance Trust.

      . Sir Walter Scott, Marmion, in The Complete Poetical Works of Scott 88, 145 (Horace E. Scudder ed. 1900).

      . Attorney Inglis’s involvement in these proceedings is further detailed in the companion case, Inglis v. Casselberry, No. 2D12-6463, - So.3d -, 2013 WL 6212021 (Fla. 2d DCA Nov. 27, 2013).

      . The parties concede that the trusts are discretionary.