author: PER CURIAM.

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION AND THE FLORIDA RULES OF APPELLATE PROCEDURE-IMPLEMENTATION OF COMMISSION ON TRIAL COURT PERFORMANCE AND ACCOUNTABILITY RECOMMENDATIONS.
    No. SC08-1658.
    Supreme Court of Florida.
    July 16, 2009.
    John G. Crabtree, Chair, Florida Rules of Appellate Procedure Committee, Key Biscayne, Florida, John S. Mills, Past Chair, Florida Rules of Appellate Procedure Committee, Jacksonville, Florida; Judge Lisa Davidson, Chair, Florida Rules of Judicial Administration Committee, Eighteen Judicial Circuit, Viera, Florida, Scott M. Dimond, Past Chair, Florida Rules of Judicial Administration Committee and Katherine E. Giddings of Akerman Senterfitt, Tallahassee, Florida; Judge Robert B. Bennett, Jr., Chair, Commission on Trial Court Performance and Accountability, Twelfth Judicial Circuit, Sarasota, Florida and Laura Rush, Staff, Commission on Trial Court Performance and Accountability, Tallahassee, Florida; B. Elaine New, Court Counsel, Sixth Judicial Circuit, and Sherry McDonald, Senior Staff Attorney, St. Petersburg, Florida; and John F. Harkness, Jr., Executive Director, Krys Godwin, Staff Liaison to Appellate Rules Committee, and J. Craig Shaw, Staff Liaison to Judicial Administration Committee, The Florida Bar, Tallahassee, Florida, for Petitioners.
    Thomas C. Saunders, Bartow, Florida, Jennifer Gaul, FCRA President and Susan D. Wasilewski, FCRA President-Elect and FCCRC Chairman, Altamonte Springs, Florida, on behalf of Florida Court Reporters Association; Gregg D. Thomas and Rachel E. Fugate of Thomas and LoCice-ro, P.L., Tampa, Florida, on behalf of Cox Newspapers, Inc., publisher of The Palm Beach Post, Media General Operations, Inc., d/b/a/ The Tampa Tribune and WFLA-TV, Lakeland Ledger Publishing Corporation, publisher of The Ledger, New York Times Regional Media Group, publisher of the Sarasota herald-Tribune, Gainesville Sun and Ocala Star-Banner, and Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel (collectively the “Florida Media Organizations”); Carey Haughwout, Public Defender, and Robert Dewitt Trammell, General Counsel, Tallahassee, Florida, on behalf of Florida Public Defender Association, Inc.; Barbara A. Petersen, President and Adria E. Harper, Director, Tallahassee, Florida, on behalf of First Amendment Foundation; and Mary Watson, BSN, CPC, Lake Worth, Florida, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure. The proposed amendments implement recommendations of the Commission on Trial Court Performance and Accountability concerning court reporting services and the use of electronic recordings of court proceedings. We adopt the majority of the proposed amendments but decline to adopt the amendments that would restrict disclosure of electronic recordings of court proceedings.

BACKGROUND

The Commission on Trial Court Performance and Accountability (Commission) was created in 2002 to make recommendations concerning the improvement and accountability of Florida’s trial courts. See In re Comm’n on Trial Court Performance and Accountability, AOSC02-27, at 2 (Aug. 30, 2002) (on file with Clerk, Fla. Sup.Ct.). In 2006, the Commission was charged with making “recommendations on the effective and efficient management of due process services.” In re Comm’n on Trial Court Performance and Accountability, AOSC06-54, at 1 (Sept. 19, 2006) (on file with Clerk, Fla. Sup.Ct.). As relevant here, the Commission was directed to focus on “clarifying the legal and operational issues arising from the use of digital recording technology” and “developing operational standards and best practices for providing court reporting services.” Id. at 1-2. The Commission was authorized “to propose amendments to rules of court procedure on issues involving trial court performance and accountability, for consideration by the Court.” Id. at 4.

In October 2007, the Commission submitted its report, titled “Recommendations for the Provision of Court Reporting Services in Florida’s Trial Courts,” and also filed a petition proposing amendments to Rules of Judicial Administration 2.420, Public Access to Judicial Branch Records, and 2.535, Court Reporting, and Rules of Appellate Procedure 9.141, Appeal Proceedings in Criminal Cases, 9.200, The Record, and 9.900(h), Designation to Reporter (form). In its petition, the Commission explained that recent legal challenges relating to problems with the use of digital reporting technology have focused on the shift away from trained court reporters toward the use of untrained tran-scriptionists and the potential presence of confidential information on digital recordings. In several cases, the district courts have expressed concern with respect to both the potential disclosure of confidential discourse that was inadvertently captured on digital recordings and the poor quality of transcripts prepared from digital recordings by untrained transcriptionists. See Moorman v. Hatfield, 958 So.2d 396, 397 (Fla. 2d DCA 2007) (noting serious errors in a written transcript prepared from an audio recording of a court proceeding); Holt v. Chief Judge of Thirteenth Judicial Circuit, 920 So.2d 814, 818 (Fla. 2d DCA 2006) (noting concern with respect to the unintended recording of confidential conversations in a court proceeding); see also R.P. v. Dep’t of Children & Family Servs., 975 So.2d 435, 437 (Fla. 2d DCA 2007) (“[T]he trial proceedings were tape-recorded and transcribed by a court reporter with results that can only be described as dismal.”). The Commission proposed a number of rule amendments intended to address these concerns.

After consideration of the Commission’s proposals, the Court referred them to the affected rules committees, the Rules of Judicial Administration Committee (RJA Committee) and the Appellate Court Rules Committee (Appellate Committee), for consideration. The Court asked the committees to file proper out-of-cycle reports and proposals, which they have done. The committees’ proposals are consistent with the Commission’s proposals. The proposals of the RJA Committee and Appellate Committee were published in the October 1, 2008, edition of The Florida Bar News, and several comments were filed concerning the proposed amendments to rules 2.420 and 2.535. The RJA Committee filed a response to two comments addressing technical matters. No comments were filed concerning the proposed amendments to the appellate rules.

AMENDMENTS

Upon consideration of the reports of the Commission and the rules committees, the comments, and the presentations of the interested parties at 'oral argument, which was heard in this matter on April 6, 2009, we amend the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure as explained below.

First, Florida Rule of Judicial Administration 2.535(a) is amended to add definitions of several key terms. An “approved court reporter” is defined as “a court employee or contractor who performs court reporting services, including transcription, at public expense and who meets the court’s certification, training, and other qualifications for court reporting.” An “approved transcriptionist” is defined as “a court employee, contractor, or other individual who performs transcription services at public expense and who meets the court’s certification, training, and other qualifications for transcribing proceedings.” A “civil court reporter” is defined as a “court reporter who performs court reporting services in civil proceedings not required to be reported at public expense, and who meets the court’s certification, training, and other qualifications for court reporting.” The “electronic record” is defined as “the audio, analog, digital, or video record of a court proceeding,” and the “official record” is “the transcript, which is the written record of court proceedings and depositions prepared in accordance with the requirements of subdivision (f)” of this rule.

In conjunction with the amendments to rule 2.535(a), renumbered subdivisions (g) and (h) of rule 2.535, as well as appellate rules 9.140, 9.200, and 9.900(h) are amended to incorporate the terms “approved transcriptionist,” “approved court reporter,” and “civil court reporter,” where appropriate, throughout. Additionally, renumbered subdivision 2.535(h)(1) is amended to provide that all proceedings required by law or administrative order to be reported shall be reported at public expense, and new subdivision 2.535(h)(2) is added providing that proceedings reported for the court’s own use may be reported at public expense. Renumbered subdivision 2.535(h)(3), Circuit Plan, requires each chief judge to enter an administrative order developing and implementing a circuit-wide plan for court reporting of proceedings required to be reported at public expense. This subdivision is amended to require that the circuit plan “ensure that all court reporting services are provided by ‘approved court reporters or approved transcriptionists.’” Finally, a committee note is added to rule 2.535 explaining that when a court proceeding or deposition is electronically recorded and is also recorded via a written transcript, the written transcript is the “official record” and that the definitions of “electronic record” and “official record” in the rule do not alter the definition of the term “record” for appellate purposes.

The above discussed amendments to rules 2.535, 9.140, 9.200, and 9.900(h) are intended to address concerns about the integrity of transcripts prepared from digital recordings by authorizing preparation of the official record of proceedings by approved court reporters and approved transcriptionists who meet the circuit court’s training and certification standards. The amendments are also intended to distinguish “approved transcriptionists” and “approved court reporters” from “civil court reporters,” and clarify that the written transcript is the “official record” of a proceeding.

Next, in order to address concerns relating to the potential disclosure of confidential discourse inadvertently captured on digital recordings of court proceedings, a new subdivision is added to rule 2.535, entitled “Safeguarding Confidential Communications When Electronic Recording Equipment Is Used in the Courtroom.” This subdivision requires court personnel to notify participants in a courtroom proceeding that electronic recording equipment is being used and warn participants that they should safeguard information they do not want recorded. It also states that participants have a duty to protect confidential information and specifically requires attorneys to take “all reasonable and available precautions” to protect disclosure of confidential communications, including muting microphones and moving to a location inaccessible to the recording equipment.

Finally, we decline to adopt several amendments to Florida Rules of Judicial Administration 2.420 and 2.535 proposed by the Commission and concurred with by the RJA Committee that would delete “electronic records, videotapes, or stenographic tapes of court proceedings” from the definition of “court records” and would restrict disclosure of electronic records except as permitted under certain circumstances in the discretion of the court or the chief judge. Although there are strong policy and practical concerns on both sides of this issue, we conclude that the concerns supporting the restriction of access to digital recordings of judicial proceedings are better addressed through means less restrictive than the proposal here, which would essentially deny access to digital recordings of courtroom proceedings, that are otherwise open to the public, except as permitted in the discretion of the court or the chief judge. Such a provision is overly restrictive and is contrary to Florida’s well established public policy of government in the sunshine and this Court’s longstanding presumption in favor of openness for all court proceedings and allowing access to records of those proceedings. See In re Amend. to Fla. R. Jud. Admin. 2.120-Sealing of Court Records & Dockets, 954 So.2d 16, 23 (Fla.2007). Additionally, according to the comments filed in this matter, digital recordings of court proceedings are now widely used throughout the state by those involved in the court system, as well as the media, and have proven useful, reliable, efficient, and cost effective. We agree that access to these recordings should not be denied or left to the unfettered discretion of the trial court or the chief judge. Contra Media Gen. Operations, Inc. v. State, 12 So.3d 239 (Fla. 2d DCA 2009) (concluding that an unedited audio recording created by digital electronic court reporting system is not an electronic record of court proceedings and thus is not a court record subject to disclosure under Rule of Judicial Administration 2.420).

CONCLUSION

Accordingly, the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. Committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately.

It is so ordered.

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

APPENDIX

Amendments to Florida Rules of Judicial Administration

RULE 2.535. COURT REPORTING

(a)Definitions.

(1) “Approved court reporter” means a court employee or contractor who performs court reporting services, including transcription, at public expense and who meets the court’s certification, training, and other qualifications for court reporting.

(2) “Approved transcriptionist” means a court employee, contractor, or other individual who performs transcription services at public expense and who meets the court’s certification, training, and other qualifications for transcribing proceedings.

(3) “Civil court reporter” means a court reporter who performs court reporting services in civil proceedings not required to be reported at public expense, and who meets the court’s certification, training, and other qualifications for court reporting.

(4) Court reporting means the act of making a verbatim record of the spoken word, whether by the use of written symbols, stenomask equipment, stenographic equipment, or electronic devices, in any proceedings pending in any of the courts of this state, including all discovery proceedings conducted in connection therewith, any proceedings reported for the courts own use, and all proceedings required by statute to be reported by a eertified-o-r — official-an approved court reporter or civil court reporter. It does not mean either — the act of taking witness statements not intended for use in court as substantive evidence, or the act of electronic reeoa?ding-and-tr-angcr-iption of proceedings as provided — fog—in- subdivision W).

(5) “Electronic record” means the audio, analog, digital, or video record of a court proceeding.

(6) “Official record” means the transcript, which is the written record of court proceedings and depositions prepared in accordance with the requirements of subdivision (f),

(b)-(c) [No change]

(d) Ownership of Records. The chief judge of the circuit in which a proceeding is pending, in his or her official capacity, is the owner of all records and electronic records made by an official court reporter or quasi-judicial officer in proceedings required to be reported at public expense and proceedings reported for the court’s own use.

(d)(e) Fees. The chief judge shall have the discretion to adopt an administrative order establishing maximum fees for court reporting services not-covered in-the-plan adopted pursuant to-subdivision (g). Any such order must make a specific factual finding that the setting of such maximum fees is necessary to ensure access to the courts. Such finding shall include consideration of the number of court reporters in the county or circuit, any past history of fee schedules, and any other relevant factors.

(e)(f) Transcripts. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form, size, spacing, and method of printing transcripts are as follows:

(1) — (10) [No change]

(f)(g) Reporter — as—Officers of the Court. AApproved court reporters, civil court reporters, and approved transcrip-

tionists are is an officers of the court for all purposes while acting as ar-court reporters in a-judicial proceedings or discovery proceedings or as transcriptionists. The-Approved court reporters, civil court reporters, and approved transcriptionists shall comply with all rules and statutes governing the proceeding that are applicable to court reporters and approved tran-scriptionists.

(g)(h) Court Reporting Services Pre-vided in Mental Health Proceedings or at Public Expense.

(1) When Reporting Is Required. All eriminal-and juvenile proceedings, and-a-ny other judicial proceedings required by law, er-court rule, or administrative order to be reported shall be reported at public expense, shall be reported.

(2) When Reporting May Be Required. Proceedings reported for the court’s own use may be reported at public expense.

(2)(3) Circuit Plan. The chief judge, after consultation with the circuit court and county court judges in the circuit, shall enter an administrative order developing and implementing a circuit-wide plan for the court reporting of all proceedings required to be reported at public expense using either full or part time court employees or independent contractors. The plan shall ensure that all court reporting services are provided by qualified personsap-proved court reporters or approved tran-

scriptionists. This plan may provide for multiple service delivery strategies if they are necessary to ensure the efficient provision of court reporting services. Each circuits plan for court reporting services shall be developed after consideration of guidelines issued by the Office of the State Courts Administrator.

(g)(4) Electronic Recording and Transcription of Proceedings Without Court Reporters. A chief judge may enter a circuit-wide administrative order, which shall be recorded, authorizing the electronic recording and subsequent transcription by persons-other thanapproved court reporters or approved transcription-ists, of any judicial proceedings, including depositions, that are otherwise required to be reported by a court reporter. Appropriate procedures shall be prescribed in the order which shall:

(A)set forth responsibilities for the courts support personnel to ensure a reliable record of the proceedings;

(B)provide a means to have the recording transcribed by approved court reporters or approved transcriptionists, either in whole or in part, when necessary for an appeal or for further use in the trial court; and

(C)provide for the safekeeping of such recordings.

The presiding judge in a specific case, however, may require -a-court-reporter, if available-or-either-par-ty-may-provide and pay for the-eost-of-a-eourt-reporter. — Such court reporter — shall-be-subject'to the order-s-of-the-court and directions to transcribe the record from all parties.

(5) Safeguarding Confidential Communications When Electronic Recording Equipment Is Used in the Courtroom.

(A) Court personnel shall provide notice to participants in a courtroom proceeding that electronic recording equipment is in use and that they should safeguard information they do not want recorded.

(B) Attorneys shall take all reasonable and available precautions to protect disclosure of confidential communications in the courtroom. Such precautions may include muting microphones or going to a designated location that is inaccessible to the recording equipment.

(C)Participants have a duty to protect confidential information.

(4)(6) Grand Jury Proceedings. Testimony in grand jury proceedings shall be reported by an approved court reporter, but shall not be transcribed unless required by order of court. Other parts of grand jury proceedings, including deliberations and voting, shall not be reported. The approved court reporters work product, including stenographic notes, electronic recordings, and transcripts, shall be filed with the clerk of the court under seal.

(h)(i) Court Reporting Services in Capital Cases. Qn-or-before January 1, 2Q0-1 — the-The chief judge, after consultation with the circuit court judges in the circuit, shall enter an administrative order developing and implementing a circuit-wide plan for court reporting in all trials in which the state seeks the death penalty and in capital postconviction proceedings. The plan shall require the use of all measures necessary to expedite the preparation of the transcript, including but not limited to:

(1)where available, the use of an approved court reporter who has the capacity to provide real-time transcription of the proceedings;

(2)if real-time transcription services are not available, the use of a computer-aided transcription qualified court reporter;

(3)the use of scopists, text editors, alternating court reporters, or other means to expedite the finalization of the certified transcript; and

(4)the imposition of reasonable restrictions on work assignments by employee or contract approved court reporters to ensure that transcript production in capital cases is given a priority.

Committee Note

The definitions of “electronic record” in n subdivision (a)(5) and of “official record” in subdivision (a)(6) are intended to clarify that when a court proceeding is electronically recorded by means of audio, analog, digital, or video equipment, and is also recorded via a written transcript prepared by a court reporter, the written transcript shall be the “official record” of the proceeding to the exclusion of all electronic records. While the term “record” is used within Rule 2.535 and within Fla. R.App. P. 9.200, it has a different meaning within the unique context of each rule. Accordingly, the meaning of the term “record” as defined for purposes of this rule does not in any way alter, amend, change, or conflict with the meaning of the term “record” as defined for appellate purposes in Fla. R.App. P. 9.200(a).

Amendments to the Florida Rules of Appellate Procedure

RULE 9.140. Appeal Proceedings in Criminal Cases

(a) [No change]

(b) Appeals by Defendant.

(1) [No change]

(2) Guilty or Nolo Contendere Pleas.

(A) [No change]

(B) Record.

(i) Except for appeals under subdivision (b)(2)(A)® of this rule, the record for appeals involving a plea of guilty or nolo contendere shall be limited to:

a.-e. [No change]

f. notice of appeal, statement of judicial acts to be reviewed, directions to the clerk, and designation to the approved court reporter or approved transcriptionist.

(ii) [No change]

(3)-(4) [No change]

(c) [No change]

(d) Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State.

(1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:

(A)-(C) [No change]

(D) designations to the approved court reporter or approved transcriptionist have been filed for transcripts of those portions of the proceedings necessary to support the issues on appeal or, if transcripts will require the expenditure of public funds for the defendant, of those portions of the proceedings necessary to support the statement of judicial acts to be reviewed; and

(E) [No change]

(2) [No change]

(e) [No change]

(f) Record.

(1) [No change]

(2) Transcripts.

(A) If a defendant’s designation of a transcript of proceedings requires expenditure of public funds, trial counsel for the defendant (in conjunction with appellate counsel, if possible) shall serve, within 10 days of filing the notice, a statement of judicial acts to be reviewed, and a designation to the approved court reporter or approved transcriptionist requiring preparation of only so much of the proceedings as fairly supports the issue raised.

(B) Either party may file motions in the lower tribunal to reduce or expand the transcripts.

(C) Except as permitted in subdivision (f)(2)(D) of this rule, the parties shall designate the approved court reporter or approved transcriptionist to file with the clerk of the lower tribunal the original transcripts for the court and sufficient copies for the state and all indigent defendants.

(D) Non-indigent defendants represented by counsel may designate the approved court reporter or approved tran-scriptionist to prepare only original transcripts. Counsel adopting this procedure shall, within 5 days of receipt of the original transcripts from the approved court reporter or approved tran-scriptionist, file the original transcripts along with securely bound copies for the state and all defendants. Counsel shall serve notice of the use of this procedure on the attorney general (or the state attorney in appeals to circuit court) and the clerk of the lower tribunal. Counsel shall attach a certificate to each copy certifying that it is an accurate and complete copy of the original transcript. When this procedure is used, the clerk of the lower tribunal upon conclusion of the appeal shall retain the original transcript for use as needed by the state in any collateral proceedings and shall not destroy the transcripts without the consent of the Office of the Attorney General.

(E) In state appeals, the state shall designate the approved court reporter or approved transcriptionist to prepare and file with the clerk of the lower tribunal the original transcripts and sufficient copies for all separately represented defendants. Alternatively, the state may elect to use the procedure specified in subdivision (f)(2)(D) of this rule.

(F) The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary copies of the original transcripts.

(3) — (5) [No change]

(6) Supplemental Record for Motion to Correct Sentencing Error Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

(A) [No change]

(B) If any appellate counsel determines that a transcript of a proceeding relating to such a motion is required to review the sentencing issue, appellate counsel shall, within 5 days from the transmittal of the supplement described in subdivision (A), designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. A copy of the designation shall be filed with the appellate court. The procedure for this supplementation shall be in accordance with this subdivision, except that counsel is not required to file a revised statement of judicial acts to be reviewed, the approved court reporter or approved transcriptionist shall deliver the transcript within 15 days, and the clerk shall supplement the record with the transcript within 5 days of its receipt.

(g)-(i) [No change]

Committee Notes

[No change]

RULE 9.200. The Record

(a) [No change]

(b) Transcript(s) of Proceedings.

(1) Within 10 days of filing the notice, the appellant shall designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. Within 20 days of filing the notice, an appellee may designate additional portions of the proceedings. Copies of designations shall be served on the approved court reporter, civil court reporter, or approved transcriptionist. Costs of the original and all copies of the transcript(s) so designated shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by rule 9.400. At the time of the designation, unless other satisfactory arrangements have been made, the designating party must make a deposit of 1/2 of the estimated transcript costs, and must pay the full balance of the fee on delivery of the completed transcript(s).

(2) Within 30 days of service of a designation, or within the additional time provided for under subdivision (b)(3) of this rule, the approved court reporter, civil court reporter, or approved transcriptionist shall transcribe and file with the clerk of the lower tribunal the designated proceedings and shall serve copies as requested in the designation. In addition to the paper copies, the approved court reporter, civil court reporter, or approved transcrip-tionist shall file with the clerk of the lower tribunal and serve on the designated parties an electronic copy of the designated proceedings in a format approved by the supreme court. If a designating party directs the approved court reporter, civil court reporter, or approved transcriptionist to furnish the transcript(s) to fewer than all parties, that designating party shall serve a copy of the designated transcript(s), in both electronic' and paper form, on the parties within 5 days of receipt from the approved court reporter, civil court reporter, or approved transcrip-tionist. The transcript of the trial shall be securely bound in consecutively numbered volumes not to exceed 200 pages each, and each page shall be numbered consecutively. Each volume shall be prefaced by an index containing the names of the witnesses, a list of all exhibits offered and introduced in evidence, and the pages where each may be found.

(3) On service of a designation, the approved court reporter, civil court reporter, or approved transcriptionist shall acknowledge at the foot of the designation the fact that it has been received and the date on which the approved court reporter, civil court reporter, or approved transcriptionist expects to have the transcript(s) completed and shall transmit the designation, so endorsed, to the parties and to the clerk of the appellate court within 5 days of

service. If the transcript(s) cannot be completed within 30 days of service of the designation, the approved court reporter, civil court reporter, or approved transcrip-tionist shall request such additional time as is reasonably necessary and shall state the reasons therefor. If the approved court reporter, civil court reporter, or approved transcriptionist requests an extension of time, the court shall allow the parties 5 days in which to object or agree. The appellate court shall approve the request or take other appropriate action and shall notify the reporter and the parties of the due date of the transcript(s).

(4)[No change]

(c)-(g) [No change]

9.900(h). Designation to Approved Court Reporter, Civil Court Reporter, or Approved Transcriptionist.

IN THE .(NAME OF LOWER TRIBUNAL WHOSE ORDER IS TO BE REVIEWED).

Case No_

Plaintiff/Appellant, v. Defendant/Appellee.

DESIGNATION TO APPROVED COURT REPORTER, CIVIL COURT REPORTER, OR APPROVED TRANSCRIPTIONIST, AND REPORTER’S OR APPROVED TRANSCRIPTIONIST’S ACKNOWLEDGEMENT

I. DESIGNATION

Plaintiff/Appellant, _, files this Designation to Approved Court Reporter, Civil Court Reporter, or Approved Transcrip-tionist and directs.(name of approved court reporter, civil court reporter, or approved transcriptionist).to transcribe an original and_copies of the following portions of the trial proceedings to be used in this appeal:

1. The entire trial proceedings recorded by the reporter on .(date)., before the Honorable .(judge)., except_

2. [Indicate all other portions of reported proceedings.]

3. The approved court reporter, civil court reporter, or approved transcriptionist is directed to file the original with the clerk of the lower tribunal and to serve one copy on each of the following:

1.

2.

3.

I,counsel for Appellant, certify that satisfactory financial arrangements have been made with the approved court reporter, civil court reporter, or approved transcrip-

tionist for preparation of the transcript.

Attorney for .(name of party) . .... (address and phone number) ....Florida Bar No.

II. APPROVED COURT REPORTER’S, CIVIL COURT REPORTER’S, OR APPROVED TRANSCRIPTIONIST’S ACKNOWLEDGMENT

1. The foregoing designation was served on.(date)., and received on.(date).

2. Satisfactory arrangements have () have not () been made for payment of the transcript cost. These financial arrangements were completed on .(date).

3.Number of trial or hearing days

4.Estimated number of transcript pages_

5a. The transcript will be available within 30 days of service of the foregoing designation and will be filed on or before .(date).

OR

5b. For the following reason(s) the approved court reporter, civil court reporter or approved transcriptionist requests an extension of time of__days for preparation of the transcript that will be filed on or before.(date).

6. Completion and filing of this acknowledgment by the approved court reporter, civil court reporter or approved transcriptionist constitutes submission to the jurisdiction of the court for all purposes in connection with these appellate proceedings.

7. The undersigned approved court reporter, civil court reporter or approved transcriptionist certifies that the foregoing is true and correct and that a copy has been furnished by mail () hand delivery () on.(date)., to each of the parties or their counsel.

Approved Court Reporter, Civil Court Reporter or Approved Tran-scriptionist .(address).

Note: The foregoing approved court reporter’s, civil court reporter’s, or approved transcriptionist’s acknowledgment to be placed “at the foot of’ or attached to a copy of the designation, shall be properly completed, signed by the court reporter, and filed with the clerk of the appellate court within 5 days of service of the designation on the approved court reporter, civil court reporter, or approved transcriptionist. A copy shall be served on all parties or their counsel, who shall have 5 days to object to any requested extension of time. See Fla. R.App. P. 9.200(b)(1), (2), & (3).

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . In the report, the Commission also made a number of related administrative recommendations that are being considered separately from this rules case.

      . The definition of "court reporting” is also amended to (1) add "any proceedings reported for the court's own use” to the description of the kinds of proceedings covered, (2) change the term "certified or official” court reporter to "an approved” court reporter and add "civil court reporter,” (3) delete language stating that court reporting does not mean "the act of electronic recording and transcription of proceedings as provided for in subdivision (g)(3)” and (4) add the term "stenographic equipment” to the list of ways the record may be made.

      . Florida Rule of Appellate Procedure 9.900(h) is a form, “Designation to Reporter.” The title of the form is changed to "Designation to Approved Court Reporter, Civil Court Reporter, or Approved Transcriptionist.”

      .New subdivision 2.535(d), Ownership of Record, is also added, providing that the chief judge of the circuit, in his or her official capacity, is the owner of all records and electronic records made by an approved court reporter or quasi-judicial officer in proceedings required to be reported at public expense and proceedings reported for the court's own use. Additionally, renumbered subdivision 2.535(e) provides that the chief judge has discretion to adopt an administrative order establishing maximum fees for court reporting services. This subdivision is amended to delete language referencing services "not covered in the plan adopted pursuant to subdivision (g).”


source: Caselaw Access Project

author:
GREEN, J.
      ROTHENBERG, J.

license: Public Domain

text:
    Federico LABRADOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-994.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Rehearing Denied Aug. 5, 2009.
    Silvia M. Gonzalez, for appellant.
    Bill McCollum, Attorney General and Maria T. Armas, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and ROTHENBERG, JJ.
   GREEN, J.

Federico Labrador appeals from a withhold of adjudication and sentences imposed for multiple counts of fraud and grand theft. We reverse in part, affirm in part, and remand.

On April 30, 2002, Labrador, a physician’s assistant, was charged by information with two counts of making false insurance claims and two counts of grand theft. State Farm Insurance and Fortune Insurance were the victims in the separate counts. Specifically, Count I of the information charged that:

FEDERICO TOMAS LABRADOR on or BETWEEN FEBRUARY 16, 2000 AND APRIL 19, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: FORTUNE INSURANCE, present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT INSURANCE MEDICAL BILLINGS FOR HORACIO ACOSTA, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Similarly, Count II provided that:

FEDERICO TOMAS LABRADOR on or BETWEEN JUNE 27, 2000 AND AUGUST 10, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: STATE FARM INSURANCE COMPANY[,] present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT MEDICAL BILLINGS FOR WILLIE AMOS, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

On December 22, 2003, the State filed an amended information that added a new crime, organized scheme to defraud; as well as five counts of insurance fraud and three counts of grand theft. Labrador moved to dismiss the organized scheme to defraud claim on statute of limitations grounds. Before the motion was heard, the State amended the information several more times. The final information was filed on September 20, 2004, and brought forty-six counts against Labrador, including the count for organized scheme to defraud, which alleged that:

FEDERICO TOMAS LABRADOR and JOSE ANTONIO TERUEL, on or between February 16, 2000 and August 21, 2000 ... acting in concert each with the other, and with MICHELE HUARTE, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: STATE FARM INSURANCE and/or FORTUNE INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain" property, to wit: PAYMENT FOR MEDICAL SERVICES NOT RENDERED, of an aggregate value of less than twenty thousand dollars ($20,-000.00), the property of STATE FARM INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, as owner or custodian, in violation of s. 817.034(4)(a)3 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Labrador, again, moved to dismiss the charge of organized scheme to defraud on statute of limitations grounds. The motion claimed that the charge was brought more than three years after the last incident of fraud was alleged to have occurred (August 21, 2000). The trial court denied the motion to dismiss and Labrador was tried on all of the joined counts. The jury found Labrador guilty of three counts of insurance fraud, two counts of communications fraud, of the organized scheme to defraud count and of a single count of grand theft. Adjudication was withheld and Labrador was sentenced to a term of probation.

On this appeal, Labrador claims, among other things, that the trial court erred in failing to dismiss the organized scheme to defraud count because it was filed after the statute of limitations had expired. We agree and reverse on this ground only.

The charge of organized scheme to defraud, a third-degree felony, was filed against Labrador on December 22, 2003. The alleged incidents giving rise to the charge occurred between February 16, 2000, and August 21, 2000. The statute of limitations for a third-degree felony is three years. See § 775.15(2)(b), Fla. Stat. (2000). Since this charge was filed more than three years after the last alleged incident, Labrador is correct in his assertion that the charge was time barred.

The dissent, relying on cases where the State refiled the same crimes previously charged against the defendant, or instances where the “new” crime had been raised in a previously, timely filed information, opines that the organized scheme to defraud count is not time barred because it is merely a continuation of the original prosecution for making false insurance claims and grand theft. It is not.

“A superseding indictment brought after the statute of limitations has expired is valid so long as the original indictment is still pending and was timely and the superseding indictment does not broaden or substantially amend the original charges.” United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir.1990).

Here, the State brought a new charge, alleging a new and distinct crime with different elements, under a completely different statute. It flies in the face of reason, and the law, to find that the organized scheme to defraud count in this case was a continuation of the original prosecution. Accordingly, we reverse in part, affirm in part, and remand with instructions that the claim of organized scheme to defraud be dismissed.

COPE, J., concurs.

ROTHENBERG, J.

(concurring in part, and dissenting in part).

I concur with the majority opinion in affirming the trial court’s order of judgment and sentence. Unlike the majority, however, I find no error in the trial court’s failure to dismiss the organized scheme to defraud count as being time barred, as there is sufficient linkage between the original and final amended informations to properly view the organized scheme to defraud count as a continuation of the original timely filed charge of fraud. I, therefore, respectfully dissent as to this point, and I would affirm the trial court’s order on all grounds.

The State filed its original information on or about April 30, 2002, charging Labrador with two counts of making false and fraudulent insurance claims and two counts of grand theft. The victims in the separate counts were State Farm Insurance and Fortune Insurance. Count I of the original information states as follows:

FEDERICO TOMAS LABRADOR on or BETWEEN FEBRUARY 16, 2000 AND APRIL 19, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: FORTUNE INSURANCE, present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT INSURANCE MEDICAL BILLINGS FOR HORACIO ACOSTA, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Similarly, Count II of the original information states as follows:

FEDERICO TOMAS LABRADOR on or BETWEEN JUNE 27, 2000 AND AUGUST 10, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: STATE FARM INSURANCE COMPANY[,] present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT MEDICAL BILLINGS FOR WILLIE AMOS, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

On or about December 22, 2003, the State filed ah amended information, wherein it nolle prossed the four original counts and added one count of organized scheme to defraud (a new Count I, which ultimately became Count 42), five counts of false and fraudulent insurance claims, and three counts of grand theft. Subsequently, the State amended the information several more times until it filed the final amended information on or about September 20, 2004, charging Labrador and a co-defendant, Jose Antonio Teruel, with forty-six counts of third degree felonies, including the organized scheme to defraud count (Count 42), for acts committed on or between February 16, 2000, through August 21, 2000. Count 42 of the final amended information states that:

■FEDERICO TOMAS LABRADOR and JOSE ANTONIO TERUEL, on or between February 16, 2000 and August 21, 2000 ... acting in concert each with the other, and with MICHELE HUARTE, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: STATE FARM INSURANCE and/or FORTUNE INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: PAYMENT FOR MEDICAL SERVICES NOT RENDERED, of an aggregate value of less than twenty thousand dollars ($20,-000.00), the property of STATE FARM INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, as owner or custodian, in violation of s. 817.034(4)(a)3 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

The majority correctly states that the crime of organized scheme to defraud is a third degree felony and that the statute of limitations for a third degree felony is three years. The criminal activity giving rise to the organized scheme to defraud occurred between February 16, 2000, and August 21, 2000. If we were to look at the December 2003 information in isolation, then I would agree with the majority that the organized scheme to defraud charge was time barred as it was filed more than three years after the last alleged criminal activity. However, the December 2003 information was simply a continuation of the same prosecution, which was timely commenced by the State when it filed the original information on or about April 30, 2002, charging Labrador with two counts of fraud.

Florida’s courts consistently have held that “[a] subsequently filed information, which contains language indicating that it is a continuation of the same prosecution, timely commenced will not be considered an abandonment of the first information and therefore[,] will not be barred by the statute of limitations.” Rubin v. State, 390 So.2d 322, 324 (Fla.1980); see also State v. Douglas, 919 So.2d 481, 482 (Fla. 3d DCA 2005)(“[S]ubsequently-filed informations ‘will not be subject to the statute of limitations when they are shown to be connected with and in continuation of a prosecution timely begun.’ ”) (quoting State v. Adjmi, 170 So.2d 340, 343 (Fla. 3d DCA 1964)); State v. Sharpe, 807 So.2d 818, 818 (Fla. 4th DCA 2002)(affirming the trial court’s order based on the Rubin and Adjmi precedent that an amended information shown to be connected with and a continuation of an original information will not be subject to the statute of limitations if the original information was timely filed); see also United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir.l990)(“A superseding indictment brought after the statute of limitations has expired is valid so long as the original indictment is still pending and was timely and the superseding indictment does not broaden or substantially amend the original charges.”).

Here, as Labrador concedes, the original information was timely filed on or about April 30, 2002. Thus, the only question is whether a sufficient connection has been shown to exist between the original information and the final amended information. Upon examining the language of the original information, the subsequent amended informations, and the final amended information, I would conclude that “sufficient linkage exists in this case and that the charge should not [be] dismissed,” Douglas, 919 So.2d at 483, as the three-year limitation period was tolled by the filing of the original information.

As the Fourth District Court of Appeal correctly noted in State v. Garofalo:

The sole purpose of a statute of limitations in the criminal context is to prevent the State from hampering defense preparation by delaying prosecution until a point in time when its evidence is stale and defense witnesses have died, disappeared or otherwise become unavailable. Since one who has been squarely put on notice of criminal activities with which he is charged is in a position to begin preparation of a defense on those charges, courts have traditionally held that a valid indictment tolls the statute of limitations, and that return of a superceding [sic] indictment prior to the dismissal of the original indictment does not violate the statute of limitations if the superceding [sic] indictment does not substantially alter the charge.

State v. Garofalo, 453 So.2d 905, 906 (Fla. 4th DCA 1984) (citations omitted). “For purposes of the statute of limitations, the ‘charges’ in the superseding indictment are defined not simply by the statute under which the defendant is indicted, but also by the factual allegations that the government relies on to show a violation of the statute.” Italiano, 894 F.2d at 1282. “If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he will be called to account for certain activities and should prepare a defense.” Id. at 1283.

Based on the case law discussed above, I do not agree with the majority that the organized scheme to defraud is an entirely new crime for which the limitations period has expired. In this case, Labrador was clearly put on notice as to the criminal activity charged in the organized scheme to defraud count. Specifically, the factual allegations surrounding the criminal activity are the same, the dates and the victim insurance companies are the same, and the potential witnesses would be the same. The original timely filed information charged Labrador with (1) making false and fraudulent insurance claims between February 16, 2000, and April 19, 2000 to Fortune Insurance for Horacio Acosta, and (2) making false and fraudulent insurance claims between June 27, 2000, and August 10, 2000 to State Farm Insurance for Willie Amos. The amended informations charging Labrador with organized scheme to defraud alleges that he schemed to defraud these same two insurance companies during the same time frame from February 16, 2000, to August 21, 2000. Consequently, I would hold that the original information charging Labrador with two counts of fraud, which was timely filed, tolled the statute of limitations as to the organized scheme to defraud charge, since a sufficient connection has been shown to exist in this case, and would affirm on all counts.

      . The trial court vacated the grand theft conviction on double jeopardy grounds.

        . See Rubin v. State, 390 So.2d 322, 324 (Fla. 1980), where the subsequent amended information was deemed a continuation of the same prosecution because the second information noted that it was a refile and because it charged identical crimes. Similarly, in State v. Garofalo, 453 So.2d 905, 906 (Fla. 4th DCA 1984), a subsequent information which changed the name of the victim but maintained identical allegations of criminal conduct was deemed a continuation of the original prosecution.

      . In State v. Douglas, 919 So.2d 481 (Fla. 3d DCA 2005), the defendant had been charged with sexual battery and convicted of aggravated battery as a lesser included crime. On appeal, this court reversed the defendant’s conviction on grounds that the information did not contain an essential allegation for the crime of aggravated battery and thus the instruction for this lesser included should not have been given to the jury. On remand, after the statute of limitations had expired, the State filed an information for aggravated battery. The defense moved to dismiss on statute of limitations grounds. The trial court granted the motion and the State appealed. We reversed finding that the first (original) information made reference to aggravated battery by citing to Florida Statute 775.087 (1999), and as such the new information charging the defendant with aggravated battery was properly connected to, and in the continuation of, the original timely filed prosecution.

      . For purposes of this analysis, the terms "indictment” and "information” are used interchangeably as an indictment is defined as a "formal written accusation of a crime made by a grand jury and presented to the court for prosecution against an accused,” and an information is defined as "[a] formal criminal charge made by a prosecutor without a grand-jury indictment.” Black’s Law Dictionary 788, 795 (8th ed.2004).


author: RAMIREZ, J.

text:
    ISLAND SEA-FARIS, LTD., d/b/a Antigua Sea-Faris Tour Company, Appellant, v. Patricia R. HAUGHEY, Appellee.
    No. 3D07-3073.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2008.
    Rehearing and Rehearing En Banc Denied Aug. 20, 2009.
    Hamilton, Miller & Birthisel, Jerry Hamilton, and Ira Rubin, Miami, for appellant.
    Lipcon, Margulies & Alsina and Michael A. Winkleman, Miami, for appellee.
    Before RAMIREZ, CORTENLAS and LAGOA, JJ.
   RAMIREZ, J.

Island Sea-Faris, LTD., d/b/a Antigua Sea-Faris Tour Company, appeals the denial of its motion to dismiss the amended complaint for lack of personal jurisdiction. We reverse because there was neither a statutory basis for exercising jurisdiction over Island Sea-Faris, and there were insufficient contacts between Island Sea-Faris and the State of Florida to satisfy due process.

I. Facts

While in Puerto Rico, appellee Patricia R. Haughey, a resident of Missouri, purchased tickets from Royal Caribbean for a shore excursion in Antigua. After she was injured during the excursion, she sued Royal Caribbean and Island Sea-Faris as the operator of the excursion.

In an affidavit in support of its motion to dismiss, Island Sea-Faris’ Managing Director testified that basically Island Sea-Faris had no ties to the State of Florida. For years, Royal Caribbean has been offering shore excursions to its customers, some of which are provided by Island Sea-Faris. At the time of Haughey’s shore excursion in July 2004, there was no formal written contract between Royal Caribbean and Island Sea-Faris. Royal Caribbean paid Island Sea-Faris in cash for the excursions purchased by Royal Caribbean’s passengers; at a later time, Royal Caribbean began making wire transfer payments to Island Sea-Faris’ bank account in Antigua. Island Sea-Faris does not advertise its tours in the United States; it has never dealt with or commissioned any agents to work on its behalf in the State of Florida.

In response to the motion, Haughey argued that the court had specific and general jurisdiction over Island Sea-Faris’ activities. Haughey introduced the following evidence in relation to the business association between Royal Caribbean and Island Sea-Faris: Royal Caribbean sold tickets for Island Sea-Faris’ shore excursions, and Royal Caribbean sold tickets via the telephone and the internet to persons in Florida; Royal Caribbean processed the telephone and internet purchases at Royal Caribbean’s substations located in Florida; passengers aboard a Royal Caribbean cruise ship were able to purchase tickets for Island Sea-Faris’ shore excursions while in Florida territorial waters; Royal Caribbean is the only party that can collect the money for the shore excursions, and Royal Caribbean pays Island Sea-Faris for the shore excursions; and Island Sea-Faris provides the actual shore excursion, and pursuant to this business venture, Royal Caribbean receives forty three cents on every dollar and Island Sea-Faris receives the remainder.

Haughey also introduced evidence that Island Sea-Faris worked with other major cruise lines, including Carnival, in Florida, to provide their shore excursions; and that Island Sea-Faris contracted to purchase insurance covering persons, property, or risk in Florida, including Royal Caribbean and Carnival as the named insured parties. Additionally, Haughey introduced evidence to show the existence of a 2003 contract between Royal Caribbean and Island Sea-Faris that required insurance. Haughey also introduced the 2005 Tour Operator Agreement entered into between Island Sea-Faris and Royal Caribbean in October 2005 that contained clauses relative to insurance and indemnification.

II. Legal Discussion

We conclude that the trial court erred when it denied the dismissal of the amended complaint.

A. Substantial Activity Under Section 48.193(2)

Haughey first argues that, pursuant to section 48.193(2), Florida Statutes (2007), Island Sea-Faris was engaged in substantial and not isolated activity within this state. The record does not support any activity by Island Sea-Faris within Florida, let alone substantial activity. Everything Haughey argues that Island Sea-Faris does in this state is, in reality, done by Royal Caribbean and other cruise lines. Haughey tries to ascribe Royal Caribbean’s activities to Island Sea-Faris by alleging that Royal Caribbean was Island Sea-Faris’ broker, relying on section 48.181(3), Florida Statutes (2007). By its terms, however, this statute refers to personal property. Haughey cites to Dinsmore v. Martin Blumenthal Assocs., Inc., 314 So.2d 561, (Fla.1975), a case finding no jurisdiction against the defendant. Furthermore, the Dinsmore case involved litigation on an exchange of stock, which is

intangible personal property. Id. at 564. Here, Haughey is suing in tort. Royal Caribbean did not sell any personal property. At best, it sold a service — a shore excursion. In American Baseball Cap, Inc. v. Duzinski, ■ 359 So.2d 483 (Fla. 1st DCA 1978), the court stated that:

to invoke subsection (3) for the acquisition of jurisdiction over a nonresident defendant it is necessary that the party attempting to effect service must demonstrate either (1) that the nonresident defendant has some degree of control over the personal property referred to in said subsection (3) of the statute in the hands of the brokers, jobbers, wholesalers or distributors selling or distributing the property in this state, or (2) that the nonresident defendant has some degree of control over the brokers, jobbers, wholesalers or distributors selling or distributing the said personal property in this state.

Id. at 487. Because there was neither personal property nor any control of Royal Caribbean, the plaintiff has not met either prong.

B. Conducting Business Under Section 48.193(l)(a)

Haughey next argues for jurisdiction based on section 48.193(l)(a), Florida Statutes (2007), operating, conducting, engaging in, or carrying on a business or business venture in this state. Merely because the tickets for the shore excursions can be sold in Florida does not equate to Island Sea-Faris doing business in this state when it is undisputed that Island Sea-Faris never directly sold any tickets in Florida. Even if Island Sea-Faris had sold the ticket in Florida (it was sold in Puerto Rico), there is no connexity between the alleged tort and the sale of the ticket. See Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003) (“By its terms, section 48.193(1) requires connexity between the defendant’s activities and the cause of action.”). Furthermore, as in Camp Illahee, there is nothing in the record to reflect that either an apparent or actual agency relationship existed between Royal Caribbean and Island Sea-Faris. In particular, Haughey made no showing that Island Sea-Faris ever represented that Royal Caribbean was Island Sea-Faris’ agent, or that Island Sea-Faris, as principal, exercised control over Royal Caribbean, as agent. See State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. 4th DCA 1998) (stating that control by the principal over the agent is a necessary element of agency); Ilgen v. Henderson Props., Inc., 683 So.2d 513, 514-15 (Fla. 2d DCA 1996) (discussing the elements necessary to establish apparent or actual agency).

Haughey also argues for jurisdiction based on contracts entered between Royal Caribbean and Island Sea-Faris. Because Haughey is neither suing nor can it sue for breach of those contracts, we reject that they can form the basis for exercising jurisdiction over Island Sea-Faris over a tort that occurred in Antigua. Neither can Haughey rely on a written contract entered into in October 2005, between Royal Caribbean and Island Sea-Faris, long after Haughey was injured. Likewise, the forum selection clause contained in the 2005 Agreement, even if applicable, would only confer jurisdiction over an action to enforce the agreement. Haughey is not suing under the contract.

C. Insurance Contract Under Section 48.193(l)(d)

Haughey also argues that because in the 2005 Agreement Island Sea-Faris undertook to indemnify Royal Caribbean for any losses, claims, liabilities, damages, and causes of action arising out of the shore excursions, that Island Sea-Faris has contracted to insure a person, property or risk located within this state at the time of contracting. We reject this argument because (1) the agreement was entered into after the accident; and (2) the person, property or risk was never located within this state, let alone at the time of contracting.

D. Minimum Contacts

Finding no statutory support for the exercise of jurisdiction over Island Sea-Faris, we need not reach the second prong — whether Island Sea-Faris had sufficient minimum contacts with Florida. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). Even if Island Sea-Faris fell within the wording of a long arm statute, “a plaintiff may not constitutionally apply the statute to obtain jurisdiction in the absence of the requisite minimum contacts with the forum state.” Id. at 502. It follows then that an action that does not fall within the statute cannot satisfy the requisite minimum contacts. The test is whether the defendant’s conduct in connection with the forum state is “such that he should reasonably anticipate being haled into court there.” WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Given the lack of contacts between Island Sea-Faris and the State of Florida, Island Sea-Faris could not reasonably anticipate being haled into court here.

III. Conclusion

We conclude that Haughey failed to meet both prongs of Venetian Salami in that there was no statutory basis for exercising personal jurisdiction over Island Sea-Faris in connection with the subject accident and, even if there was, given the lack of contacts, it would violate due process to exercise • such jurisdiction. We therefore reverse and remand with directions to dismiss the action against Island Sea-Faris.

Reversed and remanded.

      . Haughey argues that the shore excursion constitutes intangible personal property, evidently because there is a ticket involved. Giving customers tickets does not convert a service (the excursion) into personal property.

      . Haughey would have a better argument were she suing for breach of the ticket contract.


author: STEVENSON, J.

text:
    Robert N. LEWIS and Nancy L. Lewis, Appellants, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE CO., a Florida corporation, Appellee.
    No. 4D08-2516.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Rehearing Denied Aug. 28, 2009.

      Elizabeth B. Hitt and Robert A. Ader of the Law Offices of Robert Ader, P.A., Miami, for appellants.
    Nicholas J. Reising, Jr., of Loughren & Doyle, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

In this appeal, homeowners Robert and Nancy Lewis challenge the denial of their motion seeking prevailing party attorney’s fees from their insurer, Universal Property and Casualty Insurance Company (Universal), pursuant to section 627.428, Florida Statutes (2008). In short, the insureds contend that they were entitled to a fee award under the statute even though they filed their civil complaint after the insurer invoked its right to an appraisal and that the absence of a court order or judgment is not fatal to their claim. Under the facts of this case, we agree and reverse the order appealed.

Following Hurricane Wilma, in October of 2005, the roof of the Lewises’ Coral Springs residence was damaged. At the time, the property was insured by Universal. The insurance contract provided that, if there was a dispute regarding the amount of the loss, either party could demand mediation or an appraisal. In the event that it was the insurer who demanded the mediation, the insured was not required to submit to an appraisal as a precondition to suit against the insurer.

Our record is silent as to what transpired between the October 2005 loss and May of 2006. June 2006 through November 2006 correspondence between the Lewises and Universal, though, reflects that the Lewises were seeking to have the insurer cover the cost of a new roof and the insurer was refusing. In a November 16, 2006 letter, the insurer asserted that its engineer had examined the roof, that the insurer would pay the cost for replacing one square foot of concrete tile and 120 linear feet of ridge tiles, and that the remainder of the loss was the result of aging, wear and tear, or construction deficiencies. The letter advised the Lewises of their right to invoke the policy’s mediation and appraisal processes and closed by stating that the insurer was “closing [its] file.”

Thereafter, the Lewises and Universal participated in mediation. An impasse was declared in January of 2007. On February 12, 2007, the Lewises retained counsel. On February 13, 2007, the Lewises’ lawyer sent Universal a letter and a draft civil complaint, asserting a claim for breach of contract. On February 20th, Universal sent a letter to the Lewises’ counsel, indicating it was invoking its right, under the insurance contract, to an appraisal; in the letter, Universal expressly reserved the right to “deny the claim.” On March 7, 2007, the Lewises filed suit against Universal, alleging breach of contract and seeking declaratory relief on the issue of coverage. Over the Lewises’ objection, the appraisal went forward and the civil suit was stayed. In September of 2007, the appraisal was concluded and Universal paid the Lewises in excess of $51,000.

After the appraisal process was concluded, the Lewises filed a motion seeking the award of section 627.428 prevailing party attorney’s fees. The insurer insisted fees were not properly awarded as it had never denied coverage; rather, there was merely a dispute as to the amount of the loss, and it had invoked the policy’s appraisal process prior to the insureds’ filing suit. It also asserted that fees were not appropriate as the appraisal award was never confirmed by a court and there had never been any judicial relief in favor of the insureds. The trial court denied the motion for fees.

Section 627.428, Florida Statutes (2008), provides, in relevant part:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured ..., the trial court ... shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. “The purpose behind section 627.428 is ... to place the insured ... in the place she would have been if the carrier had seasonably paid the claim or benefits without causing the payee to engage counsel and incur obligations for attorney’s fees.” Travelers Indem. Ins. Co. of Ill. v. Meadows MRI, LLP, 900 So.2d 676, 679 (Fla. 4th DCA 2005).

Florida’s cases have uniformly held that a section 627.428 attorney’s fee award may be appropriate where, following some dispute as to the amount owed by the insurer, the insured files suit and, thereafter, the insurer invokes its right to an appraisal and, as a consequence of the appraisal, the insured recovers substantial additional sums. See, e.g., Goff v. State Farm Fla. Ins. Co., 999 So.2d 684 (Fla. 2d DCA 2008); Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15 (Fla. 5th DCA 2008); First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121 (Fla. 2d DCA 2007), review denied, 980 So.2d 489 (Fla.2008); Ajmechet v. United Auto. Ins. Co., 790 So.2d 575 (Fla. 3d DCA 2001). Underlying these decisions is the notion that the insureds were entitled to fees as the insureds “did not ‘race to the courthouse,’ ” see Jerkins, 982 So.2d at 18, the suit was not filed simply for the purpose of the attorney’s fee award, but rather to resolve a legitimate dispute, see id., and the filing of the suit acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract, see State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393, 398-99 (Fla. 5th DCA 2007).

There are far fewer cases addressing an insured’s entitlement to fees in the circumstance where suit is filed after the insurer invokes the appraisal process. This was, however, the circumstance in both Travelers Indemnity Insurance Co. of Illinois v. Meadows MRI, LLP, 900 So.2d 676 (Fla. 4th DCA 2005), and Federated National Insurance Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006). The decisions in these cases plainly indicate that whether suit is filed before or after the invocation of the appraisal process is not determinative of the insured’s right to fees; rather, the right to fees turns upon whether the filing of the suit served a legitimate purpose.

In Meadows, attorney’s fees were held to be properly awarded to the insured where (1) for five months the insured investigated whether the loss was a covered loss and the amount of the loss; (2) six months after the loss, the insurer issued a payment significantly less than the insured’s estimate of loss; (3) nine months after the loss, the insurer invoked an appraisal; (4) before the appraisal began, the insured’s attorney sent a letter inquiring about the appraisal procedures and entitlement to fees and advising the insurer it would file a declaratory judgment action in the absence of a prompt response; and (5) the insurer failed to respond and, nearly sixteen months after the loss, the insured filed the threatened declaratory judgment action. In affirming the fee award, this court noted that the insured had attempted to resolve the dispute without resort to the courts and that “it is entirely possible that Travelers’ conduct and participation in the appraisal was affected by Meadows’ representation of counsel and the threat of what ultimately became a pending lawsuit.” Meadows, 900 So.2d at 679.

In Esposito, this court held fees were not properly awarded where (1) for five months the parties disputed the value of the damaged property; (2) the insured invoked the appraisal process; (3) in the two months that followed, the parties corresponded regarding the appraisal; and (4) “[djespite the progress of the appraisal process,” the insured filed a petition to compel arbitration. 937 So.2d at 200. In distinguishing Meadows, the Esposito court noted, among other things, that, in Meadows, there was a coverage dispute and the declaratory judgment action was necessary to proceed with the appraisal process.

We believe that the instant case is more akin to Meadows and that the insureds were entitled to fees. Here, more than a year after the loss, the insurer was taking the position that the bulk of the damage to the roof was not covered and indicating to the insured that it intended to take no further action and was “closing [its] file.” The insureds thus invoked their right to mediation under the insurance contract. When this failed to resolve the dispute, the insureds hired counsel and threatened suit, sending the insurer a draft complaint, stating a claim for breach of contract. Only after the insureds’ counsel sent the letter and draft complaint did the insurer invoke its right to an appraisal and, even in invoking such right, the insured asserted it was retaining the right to deny the claim. The insureds then filed suit, stating a claim for breach of contract and seeking a declaratory judgment regarding coverage. These circumstances are not indicative of an insured who “raced to the courthouse” or who filed suit simply for the purpose of securing a fee award. And, while it is true that the trial court never entered a judgment or an order confirming the appraisal award, it is undisputed that the insurer paid the claim. Florida law squarely holds that “payment after suit was filed operates as a confession of judgment ... entitling [the insured] to attorney’s fees.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000); see also Cincinnati Ins. Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974) (recognizing that section 627.428 speaks in terms of the rendition of a judgment by a court, but holding that “it is neither reasonable nor just that an insurer can avoid liability for statutory attorney’s fees by ... paying the insurance proceeds ... after suit is filed but before final judgment is. entered”). Consequently, we hold that the insureds were entitled to an award of section 627.428 prevailing party attorney’s fees and reverse the trial court’s order to the contrary.

Reversed and Remanded.

POLEN and DAMOORGIAN, JJ., concur.

      . With some limitations, an insurer is allowed to retain the right to deny the claim following the appraisal process. See State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285 (Fla. 1996); see also Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021 (Fla.2002). We do not suggest or determine that Universal's retention of the right to deny the claim was legally improper in this case.


author: KHOUZAM, Judge.

text:
    Raul R. MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2693.
    District Court of Appeal of Florida, Second District.
    June 5, 2009.
   KHOUZAM, Judge.

Raul R. Monroe appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised eight grounds for relief. We affirm the denial of grounds one, two, six, seven, and eight without comment. As to grounds three, four, and five, we reverse and remand for further proceedings.

Monroe was convicted of trafficking in heroin over twenty-eight grams. On direct appeal, this court affirmed his judgment and sentence. See Monroe v. State, 5 So.3d 678 (Fla. 2d DCA 2005).

In April 2007, Monroe filed a motion for postconviction relief. In ground three of his motion, Monroe alleged that his counsel was ineffective for failing to depose the State’s chemist to “discover the material facts of the scientific procedures used.” The State responded that Monroe’s claim was conclusory and facially insufficient. The postconviction court adopted the State’s response and summarily denied the claim. However, under Spera v. State, 971 So.2d 754, 761 (Fla. 2007), the court should have given Monroe an opportunity to amend his motion to state a facially sufficient claim. Accordingly, we reverse the denial of ground three and remand for the court to strike the claim with leave to amend within a reasonable period of time.

In ground four, Monroe alleged that his counsel was ineffective for failing to move for a judgment of acquittal based on the State’s failure to establish a proper chain of custody for the heroin purportedly trafficked by Monroe. Monroe also claimed that his counsel failed to investigate discrepancies in the recorded weights of the heroin. The postconviction court denied the claim on the theory that the trial court would have denied the motion for judgment of acquittal because it had overruled counsel’s objection based on a lack of chain of custody. However, the court did not consider Monroe’s claim that his counsel failed to investigate evidence of probable tampering with the heroin.

The Drug Enforcement Administration investigation report indicated that approximately 264 grams of suspected heroin was seized during the drug transaction. The State’s chemist testified that the contraband registered a net weight of 236.7 grams. Monroe alleged that when the prosecutor received the contraband, it registered a weight of 317.1 grams. The record before us does not refute Monroe’s claim that the heroin seized was not the same heroin introduced at trial. See Dodd v. State, 587 So.2d 626, 628 (Fla. 3d DCA 1988) (“[T]he conflicting descriptions of the bag and the gross discrepancies in the recorded weights and packaging details indicate probable tampering.”). Accordingly, we reverse the denial of ground four and remand for the postconviction court to provide record attachments that conclusively refute this claim or to conduct an evidentiary hearing.

In ground five, Monroe alleged that his counsel was ineffective for advising him that his prior conviction for possession of cocaine would “nullify” a legal defense of entrapment. The State responded that Monroe failed to show that he could have raised an entrapment defense at trial. The postconviction court adopted the State’s response and denied the claim. However, the court did not consider whether Monroe’s counsel incorrectly advised him that his prior conviction precluded him from presenting an entrapment defense. “An entrapment defense is available even though [a] defendant has previously been arrested for a similar crime.” Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000). Accordingly, we reverse the denial of ground five and remand for the court to attach record excerpts that conclusively refute this claim or to conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, C.J., and FULMER, J., Concur.


text:
    Steven FERRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2230.
    District Court of Appeal of Florida, First District.
    June 16, 2009.
    Rehearing Denied Aug. 4, 2009.
    Steven Ferris, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., ALLEN and CLARK, JJ., concur.


author: LAWSON, J.

text:
    Clarence RILEY, Appellant, v. Christine LIEN, Appellee.
    No. 5D08-2635.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    Joseph Morrell, Orlando, for Appellant.
    David A. Faulkner of Faulkner Legal Group, P.A., Winter Park, for Appellee.
   LAWSON, J.

Clarence Riley timely appeals a final order denying his objections to and confirming the report and recommendation of a general magistrate regarding the amount of child support he must pay. Riley’s primary contention is that the magistrate erred by ignoring his “uncontroverted” testimony regarding a recent and substantial decline in income from the businesses that he operates as a sole proprietor. At the evidentiary hearing, Riley’s testimony regarding the extent of his income decline was substantially impeached, and the magistrate simply did not believe it. As the fact-finder, a magistrate can reject testimony that he or she disbelieves. E.g., City of Orlando Police Dept. v. Rose, 974 So.2d 554, 554 (Fla. 5th DCA 2008) (“The finder of fact is not required to believe the testimony of any witness ....”) (citations omitted). Having rejected Riley’s testimony on this point, the magistrate properly set the child support payments based upon the'financial records which Riley provided. Although we reject Riley’s primary argument on appeal, appellee concedes that some mistakes were made in tabulating Riley’s net income which requires a reduction in the child support award from $1,404.05 per month to $1,247.45 per month, with a corresponding reduction in retroactive child support to $30,085.15.

Accordingly, we reverse the order on appeal and remand for entry of a corrected order consistent with appellee’s concessions.

REVERSED AND REMANDED.

PALMER, C.J., and MONACO, J., concur.


text:
    Walter A. McNEIL, Secretary, Florida Department of Corrections, Petitioner, v. Dennis STOKER, Respondent.
    No. 1D09-0618.
    District Court of Appeal of Florida, First District.
    June 25, 2009.
    Rehearing Denied Aug. 6, 2009.
    Carolyn J. Mosley, Florida Department of Corrections, Tallahassee, for Appellant.
    Dennis Stoker, pro se, Appellee.
   PER CURIAM.

AFFIRMED. Burks v. McNeil, 984 So.2d 619 (Fla. 1st DCA 2008).

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


text:
    Edward George JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2354.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Rehearing Denied Aug. 6, 2009.

      Edward George Jones, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, VAN NORTWICK, and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    Steven G. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5388.
    District Court of Appeal of Florida, Second District.
    July 1, 2009.
    Rehearing Denied Aug. 11, 2009.
    Steven G. Brown, pro se.
   VILLANTI, Judge.

We affirm the summary denial of Steven G. Brown’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) but write to explain an additional basis to affirm the denial of claim one of his motion.

A jury convicted Brown of first-degree murder pursuant to section 782.04(1), Florida Statutes (1987). For that offense, he was sentenced to prison for “a term of Natural Life (25 Year Minimum Mandatory)” in accordance with section 775.082(1), Florida Statutes (1987), which provides: “A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless [the death penalty is imposed].”

In claim one of his motion, Brown alleged that the Department of Corrections (DOC) has informed him that he is not eligible for parole because he was sentenced to a capital offense. Although Brown framed his claim as one based on a sentencing error (which the postconviction court properly rejected), the actual basis of the claim is the DOC’s interpretation of his sentence. A claim that the DOC has incorrectly interpreted a sentence is not cognizable in a rule 3.800(a) motion. See Swinney v. State, 757 So.2d 1218, 1218 (Fla. 2d DCA 2000). Instead, any complaint that the DOC has misinterpreted Brown’s sentence must be addressed through administrative procedures and, if necessary, by a petition for writ of mandamus filed in Leon County. See id.; see also Stovall v. Cooper, 860 So.2d 5, 7-8 (Fla. 2d DCA 2003) (en banc).

Accordingly, the order denying Brown’s rule 3.800(a) motion is affirmed in all respects.

Affirmed.

FULMER and KHOUZAM, JJ., Concur.

      . In 1994, section 775.082(1) was amended to eliminate the possibility of parole for capital offenses. Ch. 94-228, § 1, Laws of Fla.

      . Brown’s eligibility for parole would also be affected by his sentence of fifteen years in prison for aggravated child abuse, which is running consecutively to the life sentence imposed on the murder conviction.


text:
    Effiney HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1188.
    District Court of Appeal of Florida, Third District.
    July 1, 2009.
    Rehearing and Rehearing En Banc Denied Aug. 20, 2009.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before COPE, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Effiney Harris appeals his convictions for attempted second-degree murder and possession of a firearm by a convicted felon. We conclude that the trial court’s denial of the motion for mistrial was within its discretion. See Villanueva v. State, 917 So.2d 968, 972 (Fla. 3d DCA 2005).

The State concedes that the judgment on count one must be corrected. On May 9, 2008, the trial court entered an order correcting the judgment and stating that defendant-appellant Harris was convicted under subsection 782.04(3), Florida Statutes (2006). However, the State acknowledges that the correct reference is subsection 782.04(2), Florida Statutes (2006). We therefore remand for correction of the statute number.

Affirmed; remanded for correction of judgment.


author: COPE, J.

text:
    Pedro Pablo ESPINOZA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-2720.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Rehearing Denied Aug. 7, 2009.

      Pedro Pablo Espinoza, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent.
    Before RAMIREZ, C.J., and COPE, J., and SCHWARTZ, Senior Judge.
   COPE, J.

This is a petition for writ of mandamus which seeks to compel additional findings by the trial court in proceedings relating to DNA testing. We deny the petition.

Pedro Pablo Espinoza filed a motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. In the motion he alleged that he had been convicted of sexual battery and trespassing. He requested DNA testing of evidence in the case.

The State and counsel for defendant-petitioner Espinoza entered into an agreed order for DNA testing. Pursuant to rule 3.853(c)(8), the results were provided to the parties. According to the laboratory report, the sample demonstrated the presence of a mixture. The victim was the major contributor. The defendant “is included as a possible contributor of the additional DNA profile.” The trial court entered no further order regarding the DNA testing.

The defendant filed a pro se petition in this court, arguing that the trial court should be required to make findings under rule 3.853(c)(5). That part of the rule addresses the findings to be made when the court is deciding a rule 3.853 motion:

(5) The court shall make the following findings when ruling on the motion:
(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

In this case those findings were not made, because the State agreed to the testing. After the test results came back, they were provided to the parties as required by rule 3.853(c)(8). The rule does not require further findings once the tests results have been received.

We acknowledge that the defendant’s position finds some support in Swafford v. State, 946 So.2d 1060, 1061 (Fla.2006). In that case, the Florida Supreme Court remanded the case to the trial court for DNA testing. The Court included in its order a requirement that after the testing was completed, the circuit court was to “enter an order making findings as to whether the evidence which was tested is authentic, has been contaminated, or such other findings in respect to the tested evidence as the circuit court determines to be appropriate.” Id. We surmise that this portion of the Swafford order was included because of some specific claim regarding possible contamination of the DNA samples, because the Court returned to that issue again at the conclusion of its opinion.

In the present case, the testing has been completed and the results do not exonerate the defendant. The rule itself only requires that the results of the DNA testing be provided to the parties. The findings in rule 3.853(c)(5) are a tool to enable a trial court to determine whether to order DNA testing. Once the testing has been completed, it does not appear that backtracking to make the findings of rule 3.853(c)(5) would serve a useful purpose. We agree with the State that if the results of the DNA testing demonstrate a basis for postconviction relief, the correct procedure is to file a motion under Florida Rule of Criminal Procedure 3.850. See Rivera v. State, 995 So.2d 191 (Fla.2008); Hildwin v. State, 951 So.2d 784, 787 (Fla. 2006); Haywood v. State, 961 So.2d 995, 996 (Fla. 4th DCA) review denied, 973 So.2d 1123 (Fla.2007); Huffman v. State, 909 So.2d 922 (Fla. 2d DCA 2005).

In light of the State’s response, the defendant requests leave to file a rule 3.850 motion, wherein he intends to challenge the testing methodology that was used in his case. In view of the Swafford decision, it may not have been clear that the judicial labor had actually concluded under rule 3.853. Therefore, the defendant may file a rule 3.850 motion within sixty days of our mandate. We do not express any opinion on the merits of any rule 3.850 motion the defendant may file.

Petition denied.