author: PADOVANO, J. WETHERELL, J., MARSTILLER, J., MAKAR, J.,

text:
    NON-PARTIES, Pat Bainter, Matt Mitchell, Michael Sheehan, and Data Targeting, Inc., Appellants, v. The LEAGUE OF WOMEN VOTERS OF FLORIDA, The National Council of La Raza, Common Cause Florida, Joan Erwin, Roland Sanchez-Medina, Jr., J. Steele Olmstead, Charles Peters, Oliver D. Finnigan, Serena Catherina Baldacchino, Dudley Bates, Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan, Bonita Agan, Kenneth W. Detzner, in his official capacity as Florida Secretary of State, The Florida Senate, Michael Haridopolos, in his official capacity as President of the Florida State Senate; The Florida House of Representatives, and Dean Cannon, in his official capacity as Speaker of the Florida House of Representatives, and Pam Bondi, in her official capacity as Attorney General of the State of Florida, Appellees.
    No. 1D14-2163.
    District Court of Appeal of Florida, First District.
    June 19, 2014.
    D. Kent Safriet, Thomas R. Philpot, and Mohammad 0. Jazil of Hopping Green & Sams, P.A., Tallahassee, for Appellants.
    John S. Mills, Andrew D. Manko, and Courtney Brewer of The Mills Firm, P.A., Tallahassee; David B. King, Thomas A. Zehnder, Frederick S. Wermuth, and Vincent Falcone III of King, Blackwell, Zehnder & Wermuth, P.A., Orlando; Raoul G. Cantero, Jason N. Zakia, and Jesse L. Green of White & Case, LLP, Miami; George N. Meros, Jr., Charles T. Wells, Jason L. Unger, and Andy Bardos of GrayRobinson, P.A., Tallahassee; George T. Levesque, General Counsel, The Florida Senate, Tallahassee; Daniel E. Nordby, General Counsel, The Florida House of Representatives; Mark Herron and Robert J. Telfer III of Messer Capar-ello, P.A., Tallahassee; J. Andrew Atkinson, General Counsel, and Ashley E. Davis, Assistant General Counsel, Florida Department of State, Tallahassee, for Ap-pellees.
   PADOVANO, J.

This is an appeal from two orders requiring a nonparty to produce certain documents for use in a lawsuit challenging the constitutional validity of the 2012 legislative plan apportioning Florida’s congressional districts. The panel assigned to the appeal entered an order on May 22, 2014, reversing these orders on the ground that the documents at issue were protected by a privilege arising under the First Amendment. By a separate order entered on the same day, the panel denied a previously filed motion by the appellees to pass the case through to the Florida Supreme Court.

On May 27, 2014, a judge of this court filed an internal motion under rule 9.331(a) of the Florida Rules of Appellate Procedure for en banc review of the panel decision. The motion alleged that this was a case of exceptional importance and asserted that the decision by the panel was incorrect. While the motion for en banc review was pending in this court, the Florida Supreme Court issued an order under the all writs provision in article V, section 3(b)(7) of the Florida Constitution, staying the decision of this court until the conclusion of the trial in the circuit court. League of Women Voters of Florida v. Data Targeting, Inc., 2014 WL 2186202 (Fla. May 27, 2014). The motion for en banc review was granted and, at this point, the trial has been completed.

We conclude that the appeal should have been passed through to the supreme court either on the motion by the appellees or by the panel on its own motion. We do not address the merits of the panel decision. Instead, we vacate the panel decision and the order denying the motion for pass-through jurisdiction and certify the orders that are the subject of this appeal for direct review by the supreme court. In accordance with rule 9.125 of the Florida Rules of Appellate Procedure, we certify that the issue in this appeal is an issue of great public importance and that the orders of the trial court require immediate resolution by the supreme court.

BENTON, VAN NORTWICK, CLARK, and SWANSON, JJ., concur.

WETHERELL, J., dissents with opinion.

MARSTILLER, J., dissents in an opinion in which LEWIS, C.J., and MAKAR, J., join, and in which WETHERELL, J., joins in Part I.

MAKAR, J., dissents in an opinion in which WETHERELL, J., joins in Part I.

WETHERELL, J.,

dissenting.

I respectfully dissent because" I disagree with the way in which the en banc process was used in this case. The en banc process should be used to decide important cases, not to side-step them.

I recognize the authority of the majority to do what it did. But that does not make it right. If the majority believed — as the internal motion for en banc review alleged — that the panel decision was wrong on the merits, it should have issued an opinion saying so. Such an opinion would have better framed the issue for review by the Florida Supreme Court and it would have given the Court the benefit of an analysis of both sides of the issue. There is no reason that such an opinion could not have been issued on the same expedited basis as the present en banc opinion.

Not only do I disagree with the procedure used by the majority, but I also disagree with the result reached by the majority. My views on this issue echo those expressed in the other dissenting opinions in two main respects. First, I agree with Judge Marstiller that certification under Florida Rule of Appellate Procedure 9.125 is not justified because the particular issue in this appeal is not one of “great public importance”; it is merely a discovery dispute that happened to arise in an important, high-profile case. Second, I agree with Judge Makar that the merits of the issue in this appeal could have been before the Florida Supreme Court much sooner— more than two weeks ago — had the en banc court exercised restraint and simply allowed the panel to issue an opinion explaining its decision.

Despite my agreement with much of the sentiment expressed in the other dissenting opinions, I do not join the opinions in full because they explain the reasoning for the panel’s decision and, unlike Judges Marstiller and Makar, I was not a member of the panel. I could comment on the merits of the appeal now that the case is before me as a member of the en banc court, but I see no reason to do so based upon the majority’s decision to “pass through” this appeal to the Florida Supreme Court without addressing the merits of the proposed panel opinion.

MARSTILLER, J.,

dissenting.

As a member of the three-judge panel of this court whose decision on the merits of this appeal is being vacated solely to certify the orders at issue to the Florida Supreme Court, I respectfully dissent.

I.

The panel reviewed two related circuit court orders compelling the appellants, a political consulting group and its employees who are not parties to the litigation below, to disclose communications protected by the First Amendment associational privilege, and permitting use of the privileged information at trial. The second of the two orders was entered on the eve of trial, and the appellants moved for an emergency stay of the orders from this Court, which we granted. Because the circumstances required an expeditious decision on the merits— trial was underway — the panel issued a dispositive order reversing the trial court’s orders, notifying the parties that a written opinion would follow. The panel simultaneously denied the plaintiff-appellees’ motion to lift the stay and alternative suggestion to certify the orders under review as requiring immediate resolution by the supreme court, filed just, as the panel prepared to issue the dispositive order.

Before the panel could publish the opinion explaining its decision, however, two things happened. An internal request to consider the case en banc was filed. And shortly thereafter, the supreme court, using its “all writs” jurisdiction, see article V, section 3(b)(7), Florida , Constitution, “stayed” the dispositive order. See League of Women Voters of Fla. v. Data Targeting, Inc., No. SC14-987, 2014 WL 2186202 (Fla.2014). In so doing, the supreme court permitted admission of the appellants’ privileged information into evidence at trial, “subject to a proper showing of relevancy,” but directed the trial court to “maintain the confidentiality of the documents by permitting any disclosure or use only under seal of the court and in a courtroom closed to the public.” Id. at 9. By using its “all writs” power in this instance, the supreme court intended to preserve its jurisdiction over this case pending issuance of the panel opinion which likely would establish the independent grounds for its ultimate jurisdiction. See Fla. Senate v. Graham, 412 So.2d 360, 361 (Fla.1982) (“[W]e have the jurisdiction conferred by article V, section 3(b)(7), to issue all writs necessary to the complete exercise and in aid of the ultimate jurisdiction imposed [elsewhere in the constitution].”).

Notwithstanding the supreme court’s apparent expectation that the panel would issue its opinion, and the undoubted expectation of the parties, the trial court and the public that the panel’s opinion was forthcoming, five judges of this court, who constitute an en banc majority because six judges are recused from this case, now vacate the panel’s dispositive order because they believe the panel should have passed the case through to the supreme court.

Florida Rule of Appellate Procedure 9.125 is the mechanism by which to invoke the supreme court’s discretionary jurisdiction under article V, section 3(b)(5), of the Florida Constitution; to review trial court orders the district courts of appeal otherwise have jurisdiction to review. Under the rule, a district court'may certify “any order or judgment of a trial court ... to require immediate resolution by the supreme court because the issues pending in the district court are of great public importance or have a great effect on the proper administration of justice throughout the state.” Fla. R.App'. P. 9.125(a) (emphasis added).

First, vacating the panel’s dispositive order to employ this rule en banc seems, at best, unnecessary when the order was stayed and supreme court review of the panel’s decision was all but guaranteed. Indeed, but for the internal request for en banc consideration, the panel by now would have issued its opinion and the supreme court’s review surely would have commenced.

Second, the orders at issue in this case resolve a third-party discovery dispute over specific documents and communications in which the third parties, who are non-parties to the litigation below, claim a First Amendment privilege. The question of whether, in the first instance, the appellants were entitled to First Amendment protection has not been properly raised for review. Thus, the narrow issue in this appeal is whether the plaintiff-appellees, who seek to invalidate the congressional district apportionment plan and the revised Senate legislative redistricting plan the Florida Legislature adopted in 2012, met their burden under the stringent standard articulated in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.2010), to permit them access to and use of the appellants’ constitutionally-protected communications at trial. And as more fully explained infra, the test set forth in Perry is a case-by-case balancing test, the outcome of which turns on the particular facts of a given case. It therefore was not unreasonable for the panel to conclude that the discovery issue is not one needing immediate resolution by the supreme court. Even if the panel had been called upon to decide whether the First Amendment privilege applies, that, too, is not necessarily an issue requiring pass-through to the supreme court. Florida’s district courts of appeal routinely decide, via three-judge panel, constitutional questions and myriad other complex matters. This is what we do. See Art. V, § 4(a), Fla. Const. (“There shall be a district court of appeal serving each appellate district.... Three judges shall consider each case and the concurrence of two shall be necessary to a decision.”).

Finally, the fact that the lawsuits underlying this appeal challenge legislatively-adopted apportionment plans does not elevate the case-specific discovery issue here to one of great public importance requiring immediate review by the supreme court— ultimate review, perhaps, but not certification and pass-through review. The panel’s decision on the merits would not have created a bright-line rule of law limiting discovery availability in future lawsuits of this type. It bears pointing out that in a prior appeal arising from these lawsuits, a different three-judge panel of this court considered the hefty issue of whether legislators and their staff were immune from testifying about matters pertaining to their activities in the reapportionment process— a constitutional issue whose resolution would affect all such future lawsuits. Yet, this court did not convene en banc to wrest the case from the panel and certify the trial court’s order to the supreme court. Rather, the case proceeded as it should, with a decision by the assigned panel that, in turn, was reviewed by the supreme court. See Fla. House of Representatives v. Romo, 113 So.3d 117 (Fla. 1st DCA), quashed sub -nom League of Women Voters of Fla. v. Fla. House of Representatives, 132 So.3d 135 (Fla.2013). I see no meaningful, objective distinction between Romo and the instant appeal that would justify the action taken by the en banc majority here, especially because supreme court review of the panel’s decision was a virtual certainty.

II.

Although I disagree with the en banc decision, it is now the decision of this court. Nevertheless, I believe the parties and the public still deserve the long-awaited explanation for the panel’s now-vacated May 22, 2014, dispositive order.

The plaintiff-appellees commenced declaratory actions in Leon County Circuit Court seeking to invalidate the Legislature’s 2012 congressional district apportionment plan and revised Senate legislative apportionment plan. The consolidated lawsuits were brought under article III, sections 20 and 21, of the Florida Constitution, which prohibit the Legislature from drawing congressional and legislative apportionment plans or individual districts to intentionally favor or disfavor any political party or incumbent, or to hinder any minority group from being able to elect representatives of their choice. The gravamen of the lawsuits is that the Legislature, with the intent proscribed by sections 20 and 21, collaborated behind the scenes with Republican “political operatives” to create discriminatory apportionment plans that were ultimately enacted.

During discovery, the plaintiff-appellees served subpoenas duces tecum on the appellants asking for “[a]ny communication with any person about (1) congressional or [state] senate redistricting in Florida in 2012; and (2) congressional or state senate redistricting maps (whole or partial, completed or draft) that were submitted to or discussed with any legislator, legislative staff members, or any legislators, staff member, or committee.” In response, the appellants produced their communications with legislators and legislative staff, but filed a motion for protective order, asserting that the remaining communications contained trade secrets and also were protected by the First Amendment associational privilege. They further asked for in camera review of more than 1,800 pages of documents potentially responsive to the subpoenas. The trial court appointed former Florida Supreme Court Justice Major B. Harding as special master to conduct the in camera review and to hold a hearing on the issues raised.

Following the hearing and document review, the special master entered a report concluding:

• The subpoenaed information was largely contained in email messages exchanged internally between employees of Data Targeting, Inc.
• Some of the email exchanges were between Data Targeting employees and one or more individuals at the Republican Party of Florida, for whom Data Targeting provided consulting services under contract.
• Consistent with appellant Pat Bain-ter’s testimony at the hearing, the email communications reflected typical activities undertaken by Data Targeting political consultants, including evaluating and analyzing district-level voting performance.
• The subpoenaed communications are protected by the First Amendment associational privilege, [] and the appellants had satisfied the first prong of Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.2010) by making a prima facie showing of the chilling effects that disclosure of the protected information would cause.
• The plaintiff-appellees failed to show a compelling need sufficient to justify denying the appellants protection of the constitutional privilege.
• Having reached these two conclusions, there was no need to address the trade secrets issue.

In a March 20, 2014, order, the trial court adopted the special master’s conclusions that the subpoenaed information is entitled to First Amendment protection, and that the appellants had satisfied the chilling-effects prong under Perry. But the court postponed ruling on whether the plaintiff-appellees had overcome the appellants’ constitutional privilege, stating, “The second prong of the Perry analysis requires me to balance the competing interests to determine whether the [First Amendment associational] privilege should yield. Such analysis will require me to review the documents in camera ... to determine which, if any, specific documents should be provided to Plaintiffs despite the associational privilege asserted by the non-parties.”

On May 2, 2014, the trial court issued its second order on the special master’s report (the first of the two orders now on appeal) directing the appellants to hand over to the plaintiff-appellees a specified subset — totaling 538 pages — of the disputed documents, and designating the documents confidential, only to be viewed by the plaintiff-appellees’ counsel and retained expert. The court stated it would “provide further guidance ... regarding how any of the privileged Produced Data Targeting Documents may be used at the trial in this case at the pre-trial conference scheduled for Friday, May 9, 2014[.]” Notably, the court provided no explanation for its decision to order the documents produced, except to say:

The Court has completed its review in camera of the Data Targeting Documents and performed the balancing test required under the second prong of the Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.2010) analysis to determine whether the associational privilege of the Data Targeting Documents should yield. The Court has also considered Non-Parties’ assertion of trade secret protection. Based on the Court’s review, balancing and analysis, the Court finds that the associational privilege of certain of the Data Targeting Documents should yield and shall be produced to Coalition Plaintiffs[.]

There is no official transcript in the record provided to this court evidencing what occurred at the May 9 pre-trial conference. However, on May 15, 2014, the trial court entered a subsequent order (the second of the two orders now on appeal) deeming all the documents produced as a result of the May 2, 2014, order confidential pursuant to Florida Rule of Judicial Administration 2.420. The court further ruled:

To preserve the confidentiality granted by this Order, the Confidential Documents shall be kept confidential as previously ordered by this Court unless and until any of the Confidential Documents is submitted to the Court as evidence in the trial of this case. The proceedings of this Court shall remain open during use of the Confidential Documents by any party at trial. At such time as any of the Confidential Documents is offered as an exhibit in witness examination or entered into evidence in the trial of this case, the exhibit itself, if admitted into evidence, shall be sealed as confidential and not subject to disclosure.

When the trial court refused to stay the May 15 order to prevent use of the documents at trial so the appellants could appeal the May 2 and May 15 orders, the appellants sought, and. obtained, an emergency stay from this court.

The question of whether the circuit court correctly determined that the appellants’ established First Amendment privilege must yield involves “ ‘an application of law to fact ... subject to de novo review.’ ” Varela v. Bemachea, 917 So.2d 295, 298 (Fla. 3d DCA 2005) (quoting Slaughter v. State, 830 So.2d 955, 957 (Fla. 1st DCA 2002)).

“[T]he First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association.” McCutcheon v. Federal Election Comm’n, — U.S. —, —, 134 S.Ct. 1434, 1448, 188 L.Ed.2d 468 (2014). As to political association, the First Amendment protects our freedom to gather in association for the purpose of advancing shared political beliefs, and the Fourteenth Amendment protects this freedom of association from state infringement. See Democratic Party of U.S. v. Wisconsin, 450 U.S'. 107, 121, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981) (citing Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973)); see also NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”). In the litigation context, requests for discovery potentially implicate a party’s First Amendment freedom of association. “Although the First Amendment does not normally restrict the actions of purely private individuals, the amendment may be applicable in the context of discovery orders, even if all of the litigants are private entities,” because a trial court’s order compelling discovery “provide[s] the requisite governmental action that invokes First Amendment scrutiny.” Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir.1987). “A- party who objects to a discovery request as an infringement of the party’s First Amendment rights is in essence asserting a First Amendment privilege.” Perry, 591 F.3d at 1160 (emphasis in original); see NAACP, 357 U.S. at 462 (recognizing a party may claim potential violation of First Amendment freedom of association in defense of compelled disclosure during discovery).

Courts employ a two-part framework to a claim of First Amendment privilege by a party objecting to a discovery request. First, the objecting party must make a prima facie showing that disclosure of the requested information will result in “chilling” consequences to the party’s associational rights. Perry, 591 F.3d at 1160. If the objecting party makes this showing, the burden shifts to the requesting party to “ ‘demonstrated an interest in obtaining the disclosures it seeks ... which is sufficient to justify the deterrent effect ... on the free exercise ... of [the] constitutionally protected right of association.’ ” Id. at 1161 (quoting NAAC.P, 357 U.S. at 463). To carry this burden, the party seeking disclosure must demonstrate that (1) “the information sought is highly relevant to the claims or defenses in the litigation,” (2) the request is “carefully tailored to avoid unnecessary interference with protected activities,” and (3) the information sought is otherwise unavailable. Id. The highly-relevant standard is decidedly more demanding than the relevance standard applied to typical discovery requests. See id.; Fla. R. Civ. P. 1.280(b)(1) (“Parties may obtain discovery-regarding any matter, not privileged, that is relevant to the subject matter of the pending action ... if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”). Rather, the information sought must go “to the heart of the matter.” Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir.1977). Ultimately, the court balances the burdens that disclosing the information would impose on the objecting party’s First Amendment rights against the requesting party’s asserted interest in disclosure to determine whether the interest outweighs the harm. Perry, 591 F.3d at 1161. “This balancing may take into account, for example, the importance of the litigation ...; the centrality of the information sought to the issues in the case ...; the existence of less intrusive means of obtaining the information ...; and the substantiality of the First Amendment interests at stake[.]” Id.

The special master concluded that the appellants sustained their burden under Perry to make a prima facie showing that disclosing the communications at issue would have chilling effects on their First Amendment freedom of association. The trial court adopted the special master’s conclusion, and the plaintiff-appellees did not timely seek review of the order adopting that conclusion or file a cross-appeal. Thus, the only reviewable issue is whether the plaintiff-appellees have carried their burden under Pen~y to demonstrate an interest sufficient to justify the harm disclosing the privileged communications would cause the appellants.

The provisions in article III of the Florida Constitution on which the plaintiff-ap-pellees’ lawsuits are based provide, in pertinent part:

SECTION 20. Standards for establishing congressional district boundaries. — In establishing congressional district boundaries:
(a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to par-
ticipate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.
SECTION 21. Standards for establishing legislative district boundaries. — In establishing legislative district boundaries:
(a) No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.

Art. Ill, §§ 20(a), 21(a), Fla. Const. The standards are thus identical for congressional and legislative district apportionment. Importantly, “[t]he language of article III, section 20(a) [and section 21(a)] explicitly places legislative ‘intent’ at the center of the litigation.” League of Women Voters of Fla. v. Fla. House of Representatives, 132 So.3d 135, 147 (Fla.2013). The provisions “outlaw[] improper partisan and discriminatory intent in the redistricting process.” Id. at 148. Specifically, the provisions outlaw “improper legislative ‘intent’ ” in the ... reapportionment process. Id. at 147 (emphasis added). “[T]he voters clearly intended for the Legislature to be held accountable for violating the Florida Constitution and to curb unconstitutional legislative intent in [the] reapportionment processes.” Id. at 151.

The gravamen of the plaintiff-appellees’ lawsuits is that the Legislature, with the requisite improper intent, collaborated behind the scenes with Republican “political operatives” to create discriminatory apportionment plans. However, the constitutionally-protected documents the plaintiff-appellees sought in discovery, and now desire to use at trial, are private internal communications with no obvious connection to the central issue in this case, i.e., whether the Legislature drew districts with impermissible intent. None of the requested communications at issue here was sent to or received from any legislator or legislative staffer; neither do they reveal directives from anyone in or working for the Legislature., Therefore, the information is not highly relevant to matters at issue in the lawsuits, which is the standard under Perry.

In the brief they filed in this court, the plaintiff-appellees asserted that they do not desire the documents to prove the non-parties’ intent (despite also stating “the only people whose intent is on trial are the members, staffers, agents, and collaborators of the Legislature who were involved in the preparation of the adopted redistricting plans.”). Rather, they want to prove the non-parties collaborated with legislators to conceal the true origins of some proposed apportionment plans submitted by members of the public for the Legislature’s consideration. Even so, absent a showing of more than a speculative connection between the appellants’ privileged internal communications and the claims raised in the lawsuits, the communications are not “highly relevant” to matters being litigated. Whatever the privileged information shows, it shows no collaboration between the non-parties and the Legislature. The appellants’ privileged communications do not go to the heart of the matter — legislative intent— and therefore, do not satisfy the stringent highly-relevant standard set forth in Perry.

The plaintiff-appellees .also relied on the following passage in League of Women Voters to support their contention that the appellants’ constitutionally-protected communications are highly relevant to the litigation:

In [In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597 (Fla.2012) ], we acknowledged the Legislature for engaging in extensive public hearings as indicative of an unprecedented transparent reapportionment process.... However, if evidence exists to demonstrate that there was an entirely different, separate process that was undertaken contrary to the transparent effort in an attempt to favor a political party or an incumbent in violation of the Florida Constitution, clearly that would be important evidence in support of the claim that the Legislature thwarted the constitutional mandate.
We ... emphasize that this Court’s first obligation is to give meaning to the explicit prohibition in the Florida Constitution against improper partisan or discriminatory intent in redistricting,

The existence of a separate process to draw the maps with the intent to favor or disfavor a political party or an incumbent is precisely what the Florida Constitution now prohibits. This constitutional mandate prohibiting improper partisan or discriminatory intent in redistricting therefore requires that discovery be permitted to determine whether the Legislature engaged in actions designed to circumvent the constitutional mandate.

League of Women Voters, 132 So.3d at 149. It must be noted, however, League of Women Voters solely concerned whether a legislative privilege exists in Florida, and if so, whether the privilege protects legislators from being deposed in lawsuits brought under article III, section 20, of the Florida Constitution. The First Amendment rights of non-parties was not at issue. The supreme court held that the legislative privilege must yield in order to effectuate the intent of the constitutional provision. League of Women Voters, 132 So.3d at 154. Prudence and judicial restraint require construing the supreme court’s statements in League of Women Voters strictly within the context of the issues that were before that court. As such, the policy reasons given to justify piercing legislative privilege do not necessarily also justify abrogating an individual’s First Amendment freedom of association — particularly an individual who is not a party to the lawsuit.

Even if the reasoning applied, the plaintiff-appellees still would have to satisfy the Perry requirements. Based on the particular circumstances of this case and the record provided to this court the plaintiff-appellees failed to demonstrate that the appellants’ communications, protected by the First Amendment associational privilege and evincing no communication with any legislator or legislative staff member, are highly relevant to the lawsuits challenging the 2012 apportionment maps.

They further have not establishéd that the constitutionally-protected information they requested is unavailable from another source. They previously have obtained not only fully-discoverable communications between the appellants (among other political consultants) and particular legislators and/or legislative staffers on the subject of apportionment, but also volumes of publicly available legislative email messages. See, e.g., League of Women Voters, 132 So.3d at 148-49 (“The challengers assert that documents they have so far uncovered, primarily through third-party discovery, reveal direct, secret communications between legislators, legislative staff members, partisan organizations, and political consultants. In addition, because of Florida’s broad public records laws, the challengers have received 16,000 e-mails, including e-mails between legislators and legislative staff, as part of the discovery process.”). Some email messages indicate that political consultants provided input to the Legislature on apportionment maps before they were publicly published. Moreover, the plaintiff-appellees have deposition testimony from witnesses acknowledging that meetings took place between key legislators and staff and other political consultants to discuss apportionment and, notably, how the consultants could participate in the redistricting process in light of sections 20 and 21. Therefore, to the extent the plaintiff-appellees seek to obtain the appellants’ constitutionally-protected information to prove collaboration between legislators and outside partisan operatives, and that a behind-the-scenes process was conducted in an attempt to favor or disfavor a political party, such information has been produced and is otherwise available to them.

■ The question then becomes whether the plaintiff-appellees have demonstrated an interest in the constitutionally-protected communications at issue “sufficient to justify the deterrent effect” disclosing the information will have on appellants’ First Amendment rights. The significance of these lawsuits, which seek to ensure an apportionment process that promotes equal opportunity for all voters to choose their congressional and legislative representatives, is unquestioned. However, also at stake here is the appellants’ freedom of association, guaranteed by the United States Constitution, and the demonstrated harm that disclosing their privileged communications would have on that freedom. The plaintiff-appellees have not established that the requested communications go the heart of the central issue being litigated — mere relevance is not enough— or, importantly, that needed information is unavailable from other sources. Balancing these factors as required under Perry, the plaintiff-appellees’ interest in the privileged information does not outweigh the harm that would result from disclosure. Accordingly, the trial court’s May 2, 2014, order ruling that the privilege must yield to allow the plaintiff-appellees access to the appellants’ documents, and the May 15, 2014, order permitting use of the documents at trial, should be reversed.

MAKAR, J.,

dissenting.

I.

Our Court’s Latin motto, like that of the Florida Supreme Court, is “Sat Cito, Si Recte,” which roughly translated means “Soon Enough, If Correct.” In cases such as this one, where time is important and prompt judicial action is needed, the “soon enough” aspect of the motto takes second billing, which is why the emergency three-judge panel acted with speed and diligence upon being assigned to this matter on short notice just days before the underlying trial was to begin. Absent expedited appellate review, the uncontested constitutional privilege of the non-parties was in danger of being lost without due process of law, which can only be provided by careful appellate review of whether the strict test for overriding the constitutional privilege had been met. Conversely, expedited review of the plaintiffs’ claim that they had met the strict test was of obvious importance given the soon-to-start bench trial. From a judicial administration perspective, an evidentiary ruling of the type at issue should not be made on the eve-of-trial in a case such as this one, but appellate courts generally don’t control when or what is presented to them.

Because the matter was time sensitive, involved an evidentiary ruling that ordinarily is reviewed by certiorari (here, by appeal because it was brought by a non-party), and no litigant had asked us to pass through the case to the Florida Supreme Court at that time, the emergency panel structured the briefing so that a disposition would be made prior to the end of the trial with time for potential review in the Florida Supreme Court, if necessary. Much like us, the trial judge bemoaned the shortness of time but he explicitly told the non-parties they “just need to go over to the DCA real quick and say, Judge Lewis is not giving us the protection we want, and see if they will give you some relief in that way.” Because it was a bench trial, not involving a jury, the trial logistics could be adapted to allow for this Court’s review.

Expedited briefing was ordered, no party making any mention that time was so critical and the issues so important that the case should bypass this Court. To the contrary, the plaintiffs asked only to clarify “whether their answer brief should be marked confidential and held under seal by the clerk.” The panel then undertook intense review of the legal arguments as well as the record, which included the 538 pages of constitutionally-protected documents. The panel spent countless hours digging deeply into the matter by: (1) reviewing each of the documents; (2) assessing the arguments why the documents were highly relevant in the litigation given the other non-privileged evidence that existed; and (3) determining whether the stringent standard for overcoming the privilege existed in the record below. On this point, it bears emphasis that Judge Terry Lewis, Special Master Major Harding, and the three-judge panel all unequivocally agreed that a constitutional privilege existed, one that the plaintiffs had a high burden to overcome. Constitutionally-privileged information isn’t entirely off-limits at trial, but it is clear that a party seeking to overcome the privilege must meet the exceptionally high standard that courts, including the United States Supreme Court, have established for when the constitutional privilege must give way. Indeed, the parties, the non-parties, and all judges involved at the time agreed that the “strict scrutiny” test applied in the Perry case should apply.

The only relevant issue presented to the panel was whether Judge Terry Lewis, an exceptionally well-regarded jurist, correctly applied this stringent test in determining whether the constitutional privilege had been overcome by the plaintiffs. Judge Lewis’s orders simply concluded— without any detailed explanation or legal analysis — that 588 documents he culled from the pile of almost 2,000 documents could be used in the imminent public trial. No individualized explanation was given why any of documents, or categories of documents, were highly relevant and the strict test necessary to overcome their constitutionally-privileged status met. The documents would be kept sealed, but a gaping hole was opened by allowing them to be used and discussed in a public setting. Absent appellate review, the non-parties’ constitutional privilege was in jeopardy; this appeal was their only opportunity to protect that privilege, which no one disputes they possess. A close analogy is a ruling that a reporter must disclose her sources in an ongoing public trial; if forced to do so without appellate review, the protection afforded by the reporter’s constitutional privilege is lost. The trial judge fully appreciated the conundrum, but was adamant that he was not going to close the proceedings.

Those were the challenging circumstances the three-judge emergency panel confronted: a barebones order lacking any justification and an imminent trial where privileged information was in danger of being revealed. A reversal on that basis alone would have been appropriate. But we undertook to explain — and it was entirely reasonable under the then-existing circumstances — that the trial judge’s orders, and our plenary review of the record, failed to show that the plaintiffs met the exceedingly difficult test for overcoming the constitutional privilege as to the 588 documents. Shortly after briefing concluded, we met and decided that the orders could not be sustained on the record presented.

What the panel did next falls into the category of “no good deed goes unpunished.” Consistent with its goal of expedited adjudication, it decided to avoid delay by issuing a dispositive order on the merits with written opinion to follow soon thereafter. Doing so would let the trial court — and the Florida Supreme Court— know that a panel adjudication on the merits had occurred, one the supreme court could choose to review immediately upon issuance of an expedited written opinion. The panel’s dispositive order was in the clerk’s office about to be released. Moments beforehand, however, the plaintiffs filed a motion asking that we pass through the case to the Florida Supreme Court. Because we’d already entered a dispositive order, and felt a written opinion would be helpful to the supreme court, we denied that motion in an order simultaneously released with the dispositive order within the hour that day.

On the Tuesday following the intervening holiday weekend, our opinions were posted internally for expedited release, but a non-panel member moved for a hearing en banc, the effect of which was the withdrawal of the pending opinions. What happened next, of course, is the supreme court later that day stayed our order pending the trial’s completion, allowing the use of the privileged documents in a non-public proceeding thereby preserving the non-parties’ constitutional privilege, presumably so that either the trial judge could have a second opportunity to apply the Perry test to any privileged document the plaintiffs sought to enter into evidence, or to preserve the non-parties’ rights to appellate review in this case. The panel interpreted the supreme court’s order as permitting the release of the panel’s opinions (which, of course, would be stayed pending completion of trial), which would “close the loop” on the supreme court’s exercise of jurisdiction. But a renewed en banc motion was made that effectively prevented that from occurring and which added weeks of avoidable delay in the ultimate disposition of this case. Had the en banc majority simply allowed our opinions to issue, the supreme court could have accepted review and probably adjudicated the matter by now; and it would have had the benefit of our opinions, even if they chose to disagree with them. Using the en banc process simply to second-guess a panel’s denial of a belated pass through motion, or to claim at this point that the panel should have sua sponte done so on its own, has no apparent benefit; delay is the only benefactor.

Because the en banc majority chose to withdraw our order on the merits and the denial of the pass through motion, the panel is entitled to explain the reasoning undergirding its initial adjudication of this case. Indeed, the supreme court encourages the district courts to provide it with written opinions, which helps clarify the issues and legal reasoning. My special concurrence to the then-majority opinion— verbatim as it existed at the time of the Florida Supreme Court’s intervening decision — is below. Whether the panel’s opinions are of help now, or have been eclipsed by intervening events, is uncertain; the privilege issue is now in a different posture compared to when the trial court first decided the issue. For instance, it appears that only a small subset of the 588 documents (82 pages) are now at issue, making the trial judge’s initial ruling overbroad as applied to 95% of the subject documents. If the trial judge is allowed to undertake a second opportunity to issue a more detailed ruling on the 32 documents’ admissibility, which would be (and would have been) of great help to facilitate appellate review, he will have the benefit of our nonbinding analysis, which — as of almost a month ago — concluded that nothing in the then-existing record on the constitutional privilege had been overcome; perhaps something newly added to the record below, but unavailable at the time this appeal was briefed, has changed the legal landscape.

In conclusion, my resolve today is the same as it was over a month ago when this appeal was first lodged and the emergency panel called to duty: we must work in the appellate judiciary with the same intensity as the trial judge and the litigants to ensure that justice prevails as to all interests in these lawsuits. An easy way out would have been to punt this case onto the Florida Supreme Court’s plate, relieving the panel from its primary responsibility to review the evidentiary matter presented. But had we done so, we’d have run afoul of Justice Barkett’s statement “admonish[ing] the district courts in the future to discharge their responsibility to initially address the questions presented in a given case. [Pass through jurisdiction] is not to be used as a device for avoiding difficult issues by passing them through to this Court.” Carawan v. State, 515 So.2d 161, 162 n. 1 (Fla.1987), superceded by statute on other grounds, ch. 88-131, § 7, Laws of Fla. as recognized in Hammonds v. State, 548 So.2d 909 (Fla. 1st DCA 1989); see also Diana L. Martin & Robin I. Bresky, Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, 88 Fla. B.J. 55, 57 (Nov.2009) (noting that use by supreme court of pass through jurisdiction “is understandably limited.”). Also, as Judge Farmer has noted, “[w]e do not have much in the way of guidance as to when and under what circumstances we should ... send a case immediately to the Supreme Court for resolution. When we do so, we thereby bypass the constitutional right to review in the district courts of final judgments of the circuit courts. Thus it should be rare that we consider doing so.” Fla. Dep’t of Agrie. & Consumer Servs. v. Haire, 832 So.2d 778, 781 (Fla. 4th DCA 2002); see also Tracy S. Carlin, The Ins and Outs of Pass-Through Jurisdiction, 80 Fla. B.J. 42, 42 (Dec.2006) (noting that “the court has not articulated any particular guidelines to assist parties and the district courts in predicting which types of cases the supreme court will hear.”). Given the limited and rare nature of pass through jurisdiction and the supreme court’s admonitions that district courts not shirk their responsibilities, we chose to roll up our sleeves and give it our best in a time-sensitive way that was expedited but not a rush to judgment, which is what supporters of our form of government expect of judicial officers.

II.

This section contains my special concurrence verbatim as submitted for public release prior to the Florida Supreme Court’s decision dated May 27, 2014, modified only to acknowledge that the panel decision to which I was concurring is now a dissent.

“Our form of government is built on the , premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations.”

Concurring in the [former majority/now dissenting opinion of Judge Marstiller], I write solely to emphasize the independent duty of the judicial branch of this state to protect the federal constitutional rights of persons or associations engaged in political activities from unwarranted governmental infringement.

This is a First Amendment case. At issue is the compelled disclosure and use in a public trial of confidential internal e-mail communications of a political consulting firm, one with many clients including a major political party in the fourth (perhaps third by now) most populous state in the Nation. Our three-judge panel, the trial judge, and the special master (a former Chief Justice of the Florida Supreme Court) have unequivocally concluded that all 538 pages of the documents at issue are legally protected by the First Amendment to the United States Constitution under basic freedoms of political association. Private political consulting — even if done for remuneration and for partisan purposes — involves protected speech and associational activities that are at the core of our constitutional democracy. Party affiliation, ideological view, or political gravitas of the people or associations involved are of no moment: our federal constitution equally applies in shielding the political activities of private persons and entities from governmental overreach absent the most compelling of reasons and proof. Justifiably so, the judiciary has cautiously guarded against legislative and executive overstepping lest a fear of governmental intrusion chill the robust degree of political discourse and civic engagement the Founders envisioned; the deleterious effects on a political organization’s activities and relationships from compelled disclosures and testimony are obvious.

Under the Supremacy Clause of the United States Constitution, our foremost obligation is to protect federal civil rights, whether they be rights of a free press, equal protection, due process, or — as in this case — political association. Concomitantly, we must enforce — to the extent permissible under federal law — the provisions of our state constitution, including article III, sections 20 and 21, which are at issue here and were addressed in League of Women Voters of Florida v. Florida House of Representatives, 132 So.3d 135 (Fla.2013). Unlike the present case, the legal dispute in League of Women Voters was a wholly intramural one between two portions of our state constitution: does the Fair Districts amendment prevail over the claim of legislative privilege rooted in the state constitution’s separation of powers clause? The balance to be drawn was between these competing state constitutional provisions, the supreme court holding that its “first obligation is to give meaning to the explicit prohibition in the Florida Constitution against improper partisan or discriminatory intent in redistricting.” Id. at 149.

A different balance presents itself in this case, one in which our obligation is to protect rights of political association under the federal constitution while concurrently effectuating the state’s interest in ensuring the purposes of article III, sections 20 and 21 are fulfilled. In League of Women Voters, our supreme court indicated that the scope of the evidence and testimony that may prove useful in showing that article III, sections 20 or 21 have been violated is broad. As a result, the discovery in this case — much like the nature of the litigation itself — is unprecedented: legislators, legislative staff, political consultants and others have been deposed and required to testify; tens of thousands of pages of documents, communications, and data have been obtained; and expert testimony and statistical reports have been generated.

Amidst this evidentiary mountain is discovery obtained from subpoenas, public records, and depositions from a private political consulting firm, which has no official role in the redistricting process, but which the plaintiffs claim has some indirect involvement. The firm has already produced all of its emails and other external communications made with legislators or their staff for possible use at trial. And its principal has been deposed, testified live before the special master (but not the trial judge), and is scheduled to testify at trial. Testimony of other witnesses and evidence related to the firm’s activities is also available. What remains undisclosed for use at trial lie at the core of the firm’s operations: its private internal e-mail communications, primarily related to its private clients. Every judge to review them has held these communications are protected under the federal constitution — and that their disclosure and use in a public trial would chill and impede the fundamental federal right of political association.

To overturn the firm’s First Amendment privilege in these communications plaintiffs must meet the test set out in Perry v. Schwarzenegger, 591 F.3d 1147, 1164 (9th Cir.2010), a case not previously adopted by any Florida court, but one all the parties rely upon and whose underpinnings are rooted in Supreme Court precedents. Given the gravity of the federal constitutional privilege at stake, the test is one of the most difficult to meet, requiring “exacting scrutiny” through proof that the “information sought is highly relevant” (“a more demanding standard of relevance” than is ordinarily applied); the request is “carefully tailored to avoid unnecessary interference with protected activities and the information must be otherwise unavail-ablet]”; and the balancing of interests demonstrates that the “burdens imposed on individuals and associations” are outweighed by the benefits of disclosure. Id. at 1161.

■ As applied, the special master held that the non-parties’ communications are protected under Perry, the plaintiffs failing to show “a compelling need sufficient to deny” the non-parties’ constitutional privilege. The trial judge agreed in part, ruling that the “internal political communication made between” the non-parties are constitutionally protected and the non-parties’ fear that disclosure would chill rights is a “logical and reasonable” conclusion on this record; he ruled without any stated reasons or application of the factors in Perry, however, that 538 documents could be used at public trial. Our three-judge panel painstakingly reviewed all of the disputed communications including each of the specific ones discussed as potentially relevant on pages 20-21 and 32-35 of the plaintiffs’ answer brief. Applying the principles of Perry, we have unanimously concluded that the First Amendment privilege applies, the record failing to show that plaintiffs met the “exacting scrutiny” required and extraordinarily heavy burden imposed to overcome the privilege, thereby preventing disclosure or use of the protected documents in a public trial.

Given the undisputed constitutionally protected status of the communications at issue and the deleterious effects disclosure would have on the political consulting firm and its future activities, coupled with the extensive disclosures the firm has already made and the testimony it will provide at trial, further combined with the broad scope of discovery made available to the plaintiffs from other sources to prove their case, an order compelling the disclosure of the core political communications at issue would raise a serious federal question. Put another way, compelled disclosure of the protected communications without a compelling justification could put our state judiciary in the discomforting position of defending how its own actions — not those of the legislative branch or an executive agency — meet First Amendment standards.

In a case from our state, Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963), the United States Supreme Court fifty years ago warned of the dangers of unduly intrusive governmental efforts to compel the disclosure of constitutionally-protected communications and information. In the midst of concerns about domestic activities of the Communist party, an investigative committee of the Florida Legislature in 1956 — pursuing efforts to discover subversive activities in Florida — attempted to force the president of the Miami branch of the NAACP to testify about its membership including fourteen who were alleged to have communist ties. The president, Mr. Gibson, refused to do so based on the associational rights of the organization, its members, and prospective members. He was adjudged in contempt, fined, and sentenced to six months’ imprisonment, which our state supreme court upheld. Id. at 543.

The United States Supreme Court reversed, holding that the legislative investigative committee was not entitled to compel Mr. Gibson to testify about such matters or make the organization’s membership records available. Id. at 558. It said the state must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” Id. at 546. It found no “substantial connection between the Miami branch ... and Communist activities,” which was an “essential prerequisite to demonstrating the immediate, substantial, and subordinating state interest necessary to sustain its right of inquiry into the membership lists of the association.” Id. at 551. The lack of a substantial foundational basis for inquiry about the fourteen named individuals prevented the committee’s inquiry, the evidence being “attenuated” or “merely indirect, less than unequivocal, and mostly hearsay testimony” thereby failing to justify the committee’s actions. Id. at 552, 554-55.

The Perry case aside, the principles of Gibson have direct application in this case. The political consulting firm at issue, though not of the stature or historically important lineage of the NAACP, is nonetheless entitled to judicial protection from governmental overreach when no substantial connection or need has been shown for the privileged information sought. In a passage relevant to this appeal, the Court in Gibson concluded:

To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very heart of the constitutional privilege to be secure in associations in legitimate organizations engaged in the exercise of First and Fourteenth Amendment rights; to impose a lesser standard than we here do would be inconsistent with the maintenance of those essential conditions basic to the preservation of our democracy.

Id. at 558. By parallelism, allowing judicially-sanctioned inquiry into the protected communications at issue in this case requires a substantial foundation lest the “heart of the constitutional privilege” be lost and the firm, and others similarly situated regardless of party affiliation, be chilled in their protected activities. Our judiciary is the last outpost to ensure that this privilege is protected, a serious responsibility and one where the supremacy of federal law tempers the extent to which state constitutional provisions can be expanded. On the record presented to us, an inadequate foundation exists to intrude any further than has already been allowed; to do so would be an Icarian step too far.

      . The supreme court's opinion makes several references to our "forthcoming opinion" or “forthcoming decision,” see slip opinion at 4, 7, 8, and its likely jurisdiction to review this decision, see id. at 8 ("In order to ... preserve this Court's ability to completely exercise the eventual jurisdiction it is likely to have to review the First District’s deci-sion_”).

      . The plaintiff-appellees did not appeal or cross-appeal that ruling by the trial court. See Fla. R.App. P. 9.110(g); see also Philip J. Padovano, Florida Appellate Practice, § 23.9, at 494 (2011-2012 ed.) ("[T]he filing of a notice of cross appeal is a prerequisite to a claim of error by the appellee.”).

      . For purposes of this appeal, the defendants in the litigation below are designated as ap-pellees.

      . The Florida Supreme Court invalidated the initially-adopted Senate apportionment plan. See In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597 (Fla.2012).

      . Appellants also put forth a trade secrets argument. Contrary to media reports, the panel did not base its decision on trade secrets because the trial court did not appear to have directly addressed that argument below.

      . I am under no illusion the panel’s opinion would have survived supreme court review.

      . The report did not set forth a full analysis on the associational privilege, but referred to an earlier report in which the special master reached the same conclusion regarding information subpoenaed from another non-party who is not an appellant in the instant appeal. The prior special master’s order is not included in the record provided to this court. This is of no consequence, however, because the trial court adopted the special master's conclusion as to the documents at issue in this appeal, and plaintiff-appellees did not cross-appeal that ruling. See supra, note 2.

      . Because the documents and communications still, at this point, enjoy First Amendment privilege, it is not appropriate to provide specific descriptions of the matters discussed therein.

      . If, as it appears, the plaintiff-appellees’ objective is to impute to the Legislature, alleged partisan and discriminatory intent on the part of the non-party appellants, they presented no authority for such a proposition, and an appellate court should be exceedingly hesitant, in the absence of such authority, to trample the First Amendment rights of non-parties to this litigation so that plaintiff-appellees can test this legal theory.

      . The supreme court framed the issue thusly:
      Does enforcement of the explicit prohibition in the Florida Constitution against partisan political gerrymandering and improper discriminatory intent in redistricting outweigh a claim of absolute legislative privilege? Specifically the issue presented to the Court is whether Florida state legislators and legislative staff members have an absolute privilege against testifying as to issues directly relevant to whether the Legislature drew the 2012 congressional apportionment plan with unconstitutional partisan or discriminatory "intent.” See art. Ill, § 20(a), Fla. Const.

        League of Women Voters, 132 So.3d at 137 (emphasis in original).

      .. The foundational policy consideration articulated by the supreme court is that article III, section 20(a), expresses the voters’ desire for more judicial scrutiny of the apportionment process conducted by the legislative branch. See League of Women Voters, 132 So.3d at 148.

      . Indeed, in the plaintiff-appellees' own answer brief filed in this court, they assert that "[t]he Produced Documents, if allowed to be used at trial, would provide further evidence of the Legislature’s collaboration with partisan operatives.” (Emphasis added.) Submitting additional evidence with the intention of bolstering evidence that is already otherwise available does not meet the stringent test set forth in Perry and does,not provide a basis for overcoming the strict protection afforded to privileged First Amendment speech.

      . Although the appellants produced the constitutionally-protected documents as ordered on May 2, that fact did not moot the May 2 order because it is the basis for the May 15 order permitting the plaintiff-appellees to use the documents at trial.

      . Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.2010).

      . In my view, the trade secrets argument presented by the non-parties lacked any merit, the only issue warranting discussion being the constitutional privilege.

      . No basis existed under the circumstances to grant the movants’ request to pass the case through to the supreme court; the panel had already adjudicated the case expeditiously. The en banc majority, however, characterizes the plaintiffs' motion as "previously filed”-— without mentioning it was filed after briefing was over and after the panel had already sent its dispositive order for release — thereby leaving unspoken the motion’s belatedness under the circumstances. While Rule 9.125, Florida Rules of Appellate Procedure, allows ten days from the notice of appeal to file a pass through motion, the plaintiffs’ motion was filed on the eighth day, but by then the briefing process was over and panel order issued internally.

      . NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (quoting Sweety v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957)).

      . The balancing “may take into account, for example, the importance of the litigation, ... the centrality of the information sought to the issues in the case, ... the existence of less intrusive means of obtaining the information, ... and the substantiality of the First Amendment interests at stake” as examples. Id. at 1161 and n. 7.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    William A. LIVINGSTON, for himself and all others similarly situated, Appellant, v. Pat FRANK, as Clerk of the Circuit Court of Hillsborough County, and City of Tampa, Appellees.
    No. 2D12-5616.
    District Court of Appeal of Florida, Second District.
    July 80, 2014.
    Rehearing Denied Nov. 3, 2014.

      Christa L. Collins of Christa L. Collins, LLC, Tampa; Jackson H. Bowman of Moore, Bowman & Rix, P.A., Tampa; and Kenneth B. Bell of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant.
    David M. Caldevilla, Vivian Arenas-Battles, and Michael P. Bray of de la Parte & Gilbert, Tampa; and Dale K. Bohner, Legal Counsel, Office of the Clerk of the Court, Tampa, for Appellee Pat Frank, as Clerk of the Circuit Court of Hillsborough County.
    James H. Shimberg, Jr., City Attorney, Jerry M. Gewirtz, Chief Assistant City Attorney, and Allison W. Singer, Assistant City Attorney, Tampa, for Appellee City of Tampa.
   CASANUEVA, Judge.

William A. Livingston, for himself and all others similarly situated (Mr. Livingston), seeks review of an order granting final summary judgment in favor of Pat Frank, as Clerk of the Circuit Court of Hillsborough County (the Clerk), and the City of Tampa (the City). Pursuant to the order, the trial court determined that Mr. Livingston had “no property interest in the interest” earned on deposit funds held in the court registry pursuant to quick-take eminent domain proceedings in two consolidated cases, and the Clerk and the City were thus entitled to summary judgment.

The instant appeal is not an appeal of the quick-take eminent domain proceedings. As explained in this opinion, those consolidated cases were filed in 2007 and settled between Mr. Livingston and the City in 2008. As a portion of his full compensation in those eminent domain proceedings, Mr. Livingston may have been entitled to the fair market value of the property on the day that title vested in the City plus legal interest until the parties reached a settlement. We do not reach that issue today because Mr. Livingston settled those cases. Under res judi-cata, he was not entitled to file a second lawsuit seeking a payment of interest as a portion of his right to full compensation under Article X, section 6(a) of the Florida Constitution.

In the case on appeal, which was filed in 2011, Mr. Livingston argues that the funds placed on deposit with the Clerk during the eminent domain proceedings pursuant to section 74.051, Florida Statutes (2007), became his property when title to the real property vested in the City pursuant to section 74.061. Under this theory, he argues that he is entitled to all legal interest accruing on those funds while they were on deposit with the Clerk and that a second taking resulted from the Clerk’s payment of that interest to the City. Because those deposit funds did not become Mr. Livingston’s property until the Clerk transferred them to Mr. Livingston, we hold there was no second taking, and his right to any interest as a portion of the settlement of the eminent domain cases simply needed to be resolved in those proceedings. Accordingly, we affirm the final summary judgment in favor of the Clerk and the City.

I. BACKGROUND

In 2007, the City began eminent domain proceedings for a road project for which it needed three parcels of property belonging to Mr. Livingston. The City availed itself of the abbreviated quick-take proceedings of chapter 74, Florida Statutes (2007).

Pursuant to the quick-take procedure, specified public bodies are entitled to take possession and title to property in advance of a final judgment by filing a condemnation petition and declaration of taking and depositing a good faith estimate of the value of the land into the registry of the court. § 74.031. Upon a finding that the petitioner is entitled to possession of the property prior to a final judgment, the trial court enters an order allowing the taking and directing the petitioner “to deposit in the registry of the court such sum of money as will fully secure and fully compensate the persons entitled to compensation as ultimately determined by the final judgment.” § 74.051(2). Upon making the deposit, the petitioner is vested with title and takes possession of the property and, in exchange, the right to full compensation for the property vests in the property owner. § 74.061. The matter of full compensation is then determined in accordance with the provisions of chapter 73, Florida Statutes (2007), which provides for the empanelling of a jury to make a final determination of value. §§ 74.061, 73.071.

After filing declarations of taking in accordance with the provisions of chapter 74, the City deposited funds into the court’s registry, representing its good faith estimate of the value of each parcel. The Clerk chose to deposit these quick-take deposit funds into an interest bearing account, as was the Clerk’s sole prerogative pursuant to section 74.051(4). Section 74.051(4) stated in pertinent part: “The clerk is authorized to invest such deposits so as to earn the highest interest obtainable under the circumstances in state or national financial institutions in Florida insured by the Federal Government. Ninety percent of the interest earned shall be paid to the petitioner.”

In January 2008, pursuant to stipulated orders of taking and disbursement of funds, the Clerk distributed a portion of the deposit funds to the county tax collector for unpaid ad valorem taxes due on Mr. Livingston’s parcels and disbursed the remaining principal to the trust account of Mr. Livingston’s lawyer. The Clerk retained ten percent of the interest earned on the deposit funds as authorized by section 28.38, Florida Statutes (2007), and section 74.051(4), and transferred the remaining ninety percent of the earned interest to the City, as authorized by section 74.051(4).

Mr. Livingston and the City agreed to mediate the issue of full compensation rather than submitting it to a jury, and the parties entered into a full settlement agreement in April 2008. Pursuant to the settlement agreement, the parties submitted joint motions for entry of stipulated final judgments as to each parcel, providing for an agreed amount of “full compensation” to be paid. The stipulated final judgments stated in pertinent part: “The City will pay to [Mr. Livingston] [the agreed sums] in full settlement of claims for compensation from [the City] whatsoever, including statutory interest, if any, but excluding attorney’s fees and costs.... There shall be no further award to [Mr. Livingston] in this matter.” After these final judgments were rendered, no appeal or other motions or orders regarding the eminent domain proceedings were filed until 2011.

II. CASE ON APPEAL

In 2011, Mr. Livingston filed a new two-count class action suit against the Clerk and the City after allegedly becoming aware for the first time that the Clerk had earned interest on the quick-take deposit funds and had disbursed ninety percent of that earned interest to the City. In this new lawsuit, Mr. Livingston alleged that he was entitled to interest on the deposit funds because, at the moment the City deposited the funds, the City and he were deemed to have exchanged the possessory rights to the parcels and the deposit funds. He further alleged that the investment interest on the deposit funds was his “constitutional private property,” and that this private property was unlawfully taken by the Clerk and the City to produce general revenue for the City when the Clerk paid ninety percent of that interest to the City. Thus, he further argued, the Clerk and the City had jointly and severally committed a per se taking of his private property and must therefore disgorge all investment interest.

The first count of Mr. Livingston’s complaint sought a declaration that the portion of section 74.051(4) directing the Clerk to pay the condemning authority ninety percent of all interest earned on quick-take deposit funds constituted a taking of private property in violation of the Takings Clause of the United States and Florida Constitutions. The second count was for inverse condemnation based on the allegedly unconstitutional taking of that ninety percent of the interest earned.

The Clerk and the City filed answers, asserted affirmative defenses, moved for summary judgment on both counts, and adopted each other’s motions. The allegedly dispositive issues the motions for summary judgment raised were that Mr. Livingston lacked standing; that his claims were barred by res judicata, collateral estoppel, settlement, and/or compromise; that his claims were barred by Florida Rule of Civil Procedure 1.540; that the Clerk’s actions were authorized by sections 28.33 and/or 74.061; that Mr. Livingston’s interest claim exceeded the limits of section 74.061 and was barred by sovereign immunity; and that the Clerk could not be sued for inverse condemnation. Mr. Livingston replied to the summary judgment motions but did not file his own competing motion for summary judgment.

The trial court entered a detailed order granting the motions for summary judgment, concluding that Mr. Livingston did not have title to or any right to use the deposited money during the period of time in which the money was on deposit in the court registry and accruing interest. Therefore, the court concluded, Mr. Livingston had no property interest in the interest he sought to recover by his suit. When the final summary judgments were rendered, Mr. Livingston timely appealed the trial court’s ruling. We review the final summary judgments de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000).

III. DISCUSSION

A. The Issue of Full Compensation is Res Judicata

The record demonstrates that Mr. Livingston pleaded entitlement to interest in the eminent domain proceedings, asserting in his answers to the City’s taking actions that he was “entitled to and claims interest at the lawful rate on the amount of full compensation ultimately awarded by a jury from the date of taking to the date of payment.” He further demanded that “such interest be included in the final judgment entered by this Court.” The proceedings to acquire Mr. Livingston’s real property, including the determination of full compensation, were resolved in 2008 by the entry of stipulated final judgments as to each parcel, following mediation between the parties. Each final judgment provided the stipulated amount to be paid to Mr. Livingston by the City “in full settlement of claims for compensation from Petitioner whatsoever.”

Under the doctrine of res judica-ta,

“[a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.”

Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984) (quoting Wade v. Clower, 94 Fla. 817, 114 So. 548, 552 (1927) (citations omitted)). The court, therefore, must “look not only to the claims actually litigated in the first suit, but also to ‘every other matter which the parties might have litigated and had determined, within the issues as [framed] by the pleadings or as incident to or essentially connected with the subject matter of the first litigation.’ ” AMEC Civil, LLC v. Dep’t of Transp., 41 So.3d 235, 239 (Fla. 1st DCA 2010) (alteration in original) (quoting Zikofsky v. Mktg. 10, Inc., 904 So.2d 520, 523 (Fla. 4th DCA 2005)).

“The decision to engage in mediation and to settle at mediation means that remedies and options otherwise available through the judicial system are foregone. The finality of it once the parties have set down their agreement in writing is critical.” Sponga v. Wojito, 698 So.2d 621, 625 (Fla. 5th DCA 1997). Further, “[w]here a controversy has been resolved by settlement agreement, there is no longer an actual or present need for a declaration as to the constitutionality of statutes or rules as applied to the consenting parties, and the trial court lacks jurisdiction to grant declaratory relief.” Fla. Dep’t of Ins. v. Guarantee Trust Life Ins. Co., 812 So.2d 459, 461 (Fla. 1st DCA 2002); see also State v. Fla. Consumer Action Network, 830 So.2d 148 (Fla. 1st DCA 2002).

The pleadings in the Livingston eminent domain actions identified the issue of interest as a component of full compensation, and the parties later stipulated to the amount due as “full compensation,” including statutory interest. While the constitution guarantees full compensation, it does not provide for double dipping or amounts in excess of full compensation. Thus, both entitlement to interest and the amount of interest were to be determined in the “full compensation” cases; that is, the eminent domain proceedings. Otherwise, in theory, Mr. Livingston could acquire not one but two interest payments on the same monies used to pay, in part, full compensation. The stipulated final judgments make no mention of entitlement to the interest earned on the deposit funds, and Mr. Livingston is precluded by the finality of those proceedings from making a claim on such deposits, constitutional or otherwise. See Kimbrell, 448 So.2d at 1012; AlMEC Civil, 41 So.3d at 239; Fla. Dep’t of Ins., 812 So.2d at 461.

Because the eminent domain cases and the matter of full compensation owed to Mr. Livingston from the City were fully resolved by the stipulated final judgments entered in the 2007 takings cases, Mr. Livingston cannot now argue he was also entitled to the interest generated by the quick-take deposit funds deposited pursuant to those 2007 takings. We hold such a claim is barred by res judicata.

B. No Second Taking Occurred Because the Deposit was not Mr. Livingston’s Property.

We now address Mr. Livingston’s argument that a second taking resulted from the Clerk’s investment of the quick-take deposit funds and the payment of that investment interest to the City, entitling Mr. Livingston to full compensation under the Takings Clause. The provision in section 74.051(4) directing payment of interest to the condemning authority could be a taking under the Takings Clause of the two constitutions or a matter of inverse condemnation only if the deposit belonged to Mr. Livingston at the time the interest accrued. For the reasons explained below, Mr. Livingston’s argument fails on that point.

Under Florida’s quick-take statutory scheme, once the condemning authority makes the deposit, two acts occur simultaneously. First, the condemning authority acquires title to the condemned property, and, second, the property owner’s entitlement to full compensation under the respective constitutional provisions vests. § 74.061. It is the right to full compensation that vests, not a right to the specific funds, although common practice regularly releases the funds to the property owner.

Often those funds are only a partial payment, later supplemented by attorney’s fees, costs, and interest. There is no statutory requirement that compels the property owner to immediately receive the deposit monies. Indeed, if the property owner takes possession of the deposit and the ultimate outcome of the eminent domain proceeding is an award less than the deposit, a monetary judgment is entered against the property owner for the excess. See § 74.071. Thus, there may be good reason for the property owner to await financial satisfaction until the conclusion of the takings case. Similarly, there is no statute that forbids the condemning authority from using other funds to effectuate payment of full compensation.

For these reasons, we hold that the deposit funds are not the personal property of the property owner while those funds remain on deposit. Thus, there can be no second taking, whether against the Clerk or the City, under either the United States Constitution or the Florida Constitution. As previously held, the making of the deposit vests in the property owner an entitlement to be paid full compensation by the condemning authority, not an entitlement to those specific funds placed in deposit.

IV. CONCLUSION

Mr. Livingston attempts to challenge the constitutionality of actions taken in separate eminent domain proceedings that were fully and finally resolved pursuant to stipulated final judgments. The matter of full compensation was fully resolved in the initial takings cases, and no further proceeding may be undertaken against the City as it is barred by the doctrine of res judicata. Further, we reject the assertion that a second taking resulted from the Clerk’s investment of the quick-take deposit funds or the payment of that investment interest to the City and, as such, no separate cause of action is available against either the City or the Clerk. Accordingly, we affirm the summary judgment entered in favor of the City and the Clerk.

Affirmed.

ALTENBERND and WALLACE, JJ., Concur.

      . Chapter 74, Florida Statutes (2007).

      . Although we refer only to Mr. Livingston, the eminent domain proceedings applied to all the defendants whose properties were the subject of the 2007 takings. The takings involved three parcels of property and occurred pursuant to two consolidated cases. We refer to Mr. Livingston throughout as the purported class representative and for clarity of reference.

      . The last sentence of section 74.051(4) has since been amended, effective July 1, 2013, to provide: "Ninety percent of the interest earned shall be allocated in accordance with the ultimate ownership in the deposit.” See ch. 13-23, §§ 1, 2, at 220-21, Laws of Fla.

      . Specifically, the City was to pay the sum of $80,000 for parcels 192/792, and the sum of $43,500 for parcel 196, less the City’s previous deposits of $41,250 for parcels 192/792 and $20,150 for parcel 196.

      .Mr. Livingston does not dispute the Clerk’s entitlement to ten percent of the interest as a statutory fee.

      . U.S. Const, amend. V; art. X, § 6, Fla. Const.

      . The quick-take deposit serves a similar function to that of a surety bond, ensuring the condemning authority’s performance of a complete taking, and, should the condemning authority fail to make full compensation, guaranteeing payment of at least part of the full compensation due. In short, it provides security for performance.


author: KELLY, Judge.

text:
    William SPENCE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2297.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Howard L. Dimmig, II, Public Defender, and Simone A. Lennon, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

William Spence was convicted of various offenses but on appeal he challenges only his conviction for driving while his license was permanently revoked, in violation of section 322.341, Florida Statutes (2010). He argues that he is entitled to a new trial on this charge because the trial court failed to give a jury instruction on the necessarily included lesser offense of no valid driver’s license. We agree.

A trial court commits reversible error when it fails to give a jury instruction on a necessarily included lesser offense when the defendant requests it. See Hagood v. State, 824 So.2d 252, 253 (Fla. 4th DCA 2002) (citing State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) (“The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense.”)). Recognizing the jury’s pardon power, the supreme court has stated that, “ ‘[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.’ ” Sanders v. State, 946 So.2d 953, 957 (Fla.2006) (quoting Reddick v. State, 394 So.2d 417, 418 (Fla.1981)). Because the crime of no valid driver’s license is a necessarily included lesser of driving while license is permanently revoked, see Sorrell v. State, 855 So.2d 1253, 1256 n. 5 (Fla. 4th DCA 2003), the trial court erred in failing to give the instruction. The defense repeatedly objected when the trial court stated during the charge conference that it was not going to give an instruction on the lesser offense. Therefore, the issue was preserved for appellate review.

Accordingly, we reverse Spence’s conviction for driving while license is permanently revoked and remand for a new trial on that count. We affirm Spence’s remaining convictions and sentences.

Affirmed in part; reversed in part.

WALLACE and KHOUZAM, JJ., concur.


author: SLEET, Judge.

text:
    Susan M. MAY, Appellant, v. PHH MORTGAGE CORPORATION, Appellee.
    No. 2D13-1786.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2014.
    Rehearing Denied Oct. 22, 2014.
    Peter Ticktin, Josh Bleil, Kendrick Al-maguer' and Satyen Gandhi of The Ticktin Law Group, P.A., Deerfield Beach, for Appellant.
    Elizabeth T. Frau and Rhonda K. Lewis of Ronald R. Wolfe and Associates, P.L., and Roberta Kohn of Roberta Kohn, P.A., Tampa, for Appellee.
   SLEET, Judge.

Susan M. May appeals a final judgment of foreclosure entered in favor of PHH Mortgage Corporation (the bank) following a nonjury trial. May argues that the bank failed to demonstrate that it possessed the note at the time it filed the complaint. We agree. Because we hold that the bank lacked standing, we decline to address the remaining issue in this appeal.

On April 11, 2008, the bank filed a two count complaint against May for foreclosure and an action to recover or reestablish a lost note. Attached to the complaint was a copy of the note and mortgage. The note and mortgage had the name of the first mortgagor, Bank Atlantic, on the documents and did not contain an endorsement in blank or any indicia of legal transfer to the bank. May filed an answer and defenses which alleged that the bank did not own or possess the note. On December 8, 2008, the bank filed a copy of the original note and mortgage which contained two endorsements. One was an undated endorsement to the bank and the other was an undated, blank endorsement.

During trial, the bank submitted the second copy of the note into evidence. Its only witness, a senior litigation specialist, confirmed that the note was signed by May with the original lender and that there was a blank endorsement on the note. The bank also introduced into evidence the original mortgage, the payment history of the loan, and a copy of the default notice letter. The witness did not testify that the bank owned or possessed the note at the time the complaint was filed or that the bank serviced the mortgage.

At the end of the bank’s case, counsel for May moved for an involuntary dismissal and argued that the bank failed to prove that it had standing at the inception of the lawsuit. May argued that the first copy of the note and mortgage attached to the complaint in April 2008 and the second copy of the note, which had a blank endorsement and was filed over seven months after the complaint, failed to prove that the bank had standing at the suit’s inception. She asserted that the bank had rested and could no longer introduce evidence of when the bank came into possession of the note and mortgage. The bank responded that it could present evidence that it was in possession of the note before filing the lawsuit but did not request to reopen its case. The trial court denied May’s motion and entered a final judgment of foreclosure.

Florida Rule of Civil Procedure 1.420(b) provides that “[ajfter a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief.” When confronted with a motion for involuntary dismissal, the trial court must determine whether or not the plaintiff has made a prima facie case. Capital Media, Inc. v. Haase, 639 So.2d 632, 633 (Fla. 2d DCA 1994). May’s motion for involuntary dismissal could only have been denied if the court found that the bank presented competent substantial evidence to establish a prima facie case. State, Dep’t of Health & Rehabilitative Sews, ex rel. Williams v. Thibodeaux, 547 So.2d 1243,1244 (Fla. 2d DCA 1989).

A party seeking to foreclose on a note and mortgage must prove that it has standing to do so. To have standing to foreclose, the plaintiff must demonstrate that it holds the note and mortgage in question. See Khan v. Bank of Am., N.A., 58 So.3d 927, 928 (Fla. 5th DCA 2011). “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). However, standing must be established at the time the complaint was filed. Id. Thus, the bank needed to introduce evidence that it was in possession of the original note with the blank endorsement at the time it filed the complaint. Id. at 310-11. The bank failed to do so; none of the evidence adduced at trial demonstrated when, if at all, the bank came into possession of the note.

The bank’s failure to prove a prima facie case warrants dismissal. See Fla. R. Civ. P. 1.420(b); Wolkoff v. Am. Home Mortg. Servicing, Inc., — So.3d —, 2014 WL 2378662, 39 Fla. L. Weekly D1159 (Fla. 2d DCA May 30, 2014); Allard v. Al-Nayem Int’l, Inc., 59 So.3d 198, 201 (Fla. 2d DCA 2011). Accordingly, we reverse and remand with directions for the trial court to enter an order of involuntary dismissal.

Reversed and remanded.

WALLACE, J., and RICE, ELIZABETH G., Associate Judge, Concur.


author: CLARK, J.

text:
    Richard Leroy HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3545.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2014.
    Rehearing Denied Nov. 21, 2014.

      Nancy A. Daniels, Public Defender and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Richard Leroy Hayes appeals his habitual felony offender (“HFO”) sentence for possession of a firearm by a convicted felon and possession of cocaine while armed. He asserts that the sentence is unconstitutional due to the sentencing judge’s comments about Hayes’ maintaining his innocence despite the jury’s verdict and failing to take responsibility or show remorse for his actions. Appellant seeks reversal of the sentence as an unconstitutional punishment for his exercise of his rights to due process, to a jury trial, and to not incriminate himself. Because the record does not support Appellant’s assertion that his sentences were imposed as punishment for his exercise of his constitutional rights, the sentences are affirmed.

At the sentencing hearing, Appellant stipulated to his habitual felony offender (“HFO”) status, pursuant to section 775.084(l)(a), Florida Statutes. The statutory maximum sentence was thus thirty years. § 775.084(4)(a), Fla. Stat. After witnesses testified on Appellant’s behalf, the court heard counsel’s arguments.

The State emphasized Appellant’s lengthy previous record and recommended concurrent sentences of fifteen years. Defense counsel, in support of a lenient sentence, concluded the arguments thusly:

But again, Your Honor, we would ask for three years. Mr. Hayes, I have no doubt, will do everything he can to do his best to obtain a GED while he is incarcerated, and that I just know that it would be improper to punish him simply-for maintaining his innocence.

Immediately after the defense’s argument, the court introduced its pronouncement of the sentence with an explanation of its reasoning. Referring to the defense’s argument, the court stated:

No one is punishing Mr. Hayes for maintaining his innocence. He maintained his innocence, and the evidence was such that the jury found him guilty beyond a reasonable doubt of not only armed possession of cocaine but possession of a firearm by a convicted felon. And there is competent substantial evidence to support that verdict.

The court then discussed Appellant’s record of offenses, sentences, and unsuccessful terms of supervised release over the preceding thirteen years. Finally, the court stated:

So Mr. Hayes has exhibited a pattern of drug activity that has been unbroken since he turned the age of 15. There-has been absolutely no inclination by Mr. Hayes today that he has taken responsibility for what happened and maybe in an effort to continue to maintain his innocence for purposes of appeal and later trial, that is fine, but the Court has seen no remorse, no taking any responsibility for what he has done. And in fact there continues to be allegations that somehow my attorney didn’t do what I asked her to do or the Court made, you know, erroneous rulings, and it couldn’t be the fact that maybe there was evidence against me that I had a gun in a rental car along with cocaine, and I’m a convicted felon.

But be that as it may, Mr. Hayes is an habitual felony offender. He has stipulated to being an habitual felony offender, and the Court will find that he is an habitual felony offender, and find that it is appropriate to classify him as an habitual felony offender.

The court adjudicated Appellant guilty of the offenses and sentenced him to twelve years’ incarceration on each count, to run concurrently, with a statutorily required three-year minimum mandatory provision.

There was no objection to the court’s comments at the time they were made, no objection to the sentence at the time it was pronounced, and no motion to correct any illegality of the sentence pursuant to rule 3.800(b), Florida Rules of Criminal Procedure. The sentence did not exceed the statutory maximum of thirty years and did not depend on statutory aggravating or mitigating factors. Appellant was sentenced as an HFO with a statutorily required mandatory minimum, so no departure from the criminal punishment code guidelines occurred. In addition, the twelve-year sentences were less than the fifteen years requested by the State.

. [1,2] Ordinarily, a sentence “within the minimum and maximum limits set by the legislature ‘is a matter for the trial [cjourt in the exercise of its discretion, which cannot be inquired into upon the appellate level.’” Norvil v. State, — So.3d —, —, 39 Fla. L. Weekly D520, 2014 WL 940724, *2 (Fla. 4th DCA Mar. 12, 2014) (quoting Nusspickel v. State, 966 So.2d 441, 444 (Fla. 2d DCA 2007)). If the written sentence contains an error, such as failure to include jail credit or failure to conform to the pronounced sentence, rule 9.140(e), Florida Rules of Appellate Procedure, requires a contemporaneous objection at sentencing or the filing of a motion to correct the sentence under rule 3.800(b), Florida Rules of Criminal Procedure, to preserve the error for review. Jackson v. State, 983 So.2d 562, 569 (Fla.2008).

However, if the error asserted is fundamental constitutional error in the sentencing proceedings and not in the sentencing order itself, rule 3.800(b) does not apply and is not a prerequisite to an appeal. Id. at 574; Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010). Further, it is well settled that a trial court’s remarks during sentencing which show reliance on constitutionally impermissible factors to support the severity of the sentence can constitute a denial of the defendant’s due process rights and thus constitute fundamental error which may be raised for the first time on appeal. See Torres v. State, 124 So.3d 439 (Fla. 1st DCA 2013). This Court and others have reversed numerous sentences due to fundamental error where the comments of the sentencing judge showed that the court considered the defendants’ lack of remorse and refusal to admit guilt in determining the length of the sentence. See Dumas v. State, 134 So.3d 1048 (Fla. 1st DCA 2013); Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010) (citing multiple cases therein).

While it is fundamental error to punish a defendant for exercising his or her constitutional rights, we decline to hold that any mention by a sentencing judge of a defendant’s claim of innocence or failure to “take responsibility” during a sentencing hearing automatically renders the sentence an infringement of the defendant’s constitutional right to maintain one’s innocence. In this case, the record shows that the sentence was based on the valid grounds of Appellant’s stipulated and unchallenged status as an HFO. The trial court specifically stated that Appellant was not being punished for maintaining his innocence, in response to a suggestion by defense counsel that such punishment would be illegal. Although the trial court surmised that Appellant maintained his innocence for appellate reasons and the possibility of future re-trials, and observed that Appellant had not shown any remorse or taken responsibility for “what he has done” over his lengthy criminal history, the court discounted these factors as affecting the sentence by stating immediately thereafter: “But be that as it may, Mr. Hayes is an habitual felony offender.” The transcript of the sentencing hearing in this case does not give rise to a presumption that the sentence was imposed as a punishment for Appellant’s exercise of his constitutional rights.

Viewing the trial court’s comments in the context of the record as a whole, and considering that the sentence was shorter than requested by the State and not otherwise enhanced or aggravated beyond any guideline or recommendation, we conclude that the HFO sentence was constitutionally valid because it was not based on Appellant’s exercise of his constitutional right to maintain his innocence. Aliyev v. State, 835 So.2d 1232 (Fla. 4th DCA 2003) (“[W]e cannot conclude on this record that Aliyev was punished for maintaining his innocence.”); see also Nusspickel v. State, 966 So.2d 441 (Fla. 2d DCA 2007) (context of record as whole demonstrated fair sentencing process with relevant and reliable factors considered by trial court in imposing sentence, despite judicial comments about leniency of the jury’s verdict).

Accordingly, the sentence is AFFIRMED.

VAN NORTWICK and SWANSON, JJ., concur.