source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC13-1354.
    Supreme Court of Florida.
    Oct. 3, 2013.
    Whitney M. Untiedt, Chair, Juvenile Court Rules Committee, Gainesville, FL; John F. Harkness, Jr., Executive Director, Ellen H. Sloyer and Heather Telfer, Staff Liaisons, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Juvenile Court Rules Committee (Committee) has fíled a “fast-track” out-of-cycle report proposing amendments to the Florida Rules of Juvenile Procedure in order to implement recent legislation. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction.

The Committee proposes amendments to rules 8.060 (Discovery); 8.095 (Procedure When Child Believed to be Incompetent or Insane); 8.185 (Correction of Disposition or Commitment Orders); 8.255 (General Provisions for Hearings); 8.345 (Post-Disposition Relief); 8.425 (Permanency Hearings); and Form 8.947 (Disposition Order — Delinquency). The majority of the proposals are in response to recent statutory amendments. See ch.2012-81, § 1, Laws of Fla. (amending § 39.802(4)); ch.2012-84, § 2, Laws of Fla. (amending § 20.19, Fla. Stat.); eh.2013-21, § 3, Laws of Fla. (creating § 39.522(3), Fla. Stat.); ch. 2013-107 (amending § 90.702, Fla. Stat.); ch.2013-112, §§ 3, 4, Laws of Fla. (amending §§ 985.032, 985.455(1), Fla. Stat.); ch. 2013-162 (amending various statutes); § 790.22(9), Fla. Stat. The Board of Governors of The Florida Bar unanimously approved the proposals.

After considering the proposed amendments and reviewing the relevant legislation, we amend the Florida Rules of Juvenile Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 8.060. DISCOVERY

(a) Notice of Discovery.

(1) [No Change]

(2) Within 5 days of service of the child’s notice of discovery, the petitioner shall serve a written discovery exhibit which shall disclose to the child or the child’s counsel and permit the child or the child’s counsel to inspect, copy, test, and photograph the following information and material within the petitioner’s possession or control:

(A) A list of the names and addresses of all persons known to the petitioner to have information which may be relevant to the allegations, to any defense with respect thereto, or to any similar fact evidence to be presented at trial under section 90.402(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:

(i) Category A. These witnesses shall include

(a)-(f) [No Change]

(g) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testifyto test results or give opinions that will have to -meet the test set forth -in-Frye v? -U-nited States 293 F. 1013 (D.C.Cir.1923).

(ii) [No Change]

(B)-(K) [No Change]

(3)-(5) [No Change]

(b)-(m) [No Change]

Court Commentary

[No Change]

RULE 8.095. PROCEDURE WHEN CHILD BELIEVED TO BE INCOMPETENT OR INSANE

(a) Incompetency At Time of Adjudicatory Hearing or Hearing on Petition Alleging Violation of Juvenile Probation in Delinquency Cases.

(IKS) [No Change]

(4)Child Found Incompetent to Proceed. If at the hearing provided for in subdivision (a)(2) the child is found to be incompetent to proceed, the child must be adjudicated incompetent to proceed and may be involuntarily committed as provided by law to the Department of Children and Family Servicesies for treatment upon a finding of clear and convincing evidence that:

(A) The child is mentally ill or mentally — retardedintellectually disabled and because of the mental illness or retardationintellectual disability of the child:

(i)-(ii) [No Change]

(B) [No Change]

(5) [No Change]

(6) Commitment. Each child who has been adjudicated incompetent to proceed and who meets the criteria for commitment in subdivision (a)(4) must be committed to the Department of Children and Family Servicesies. The department must train or treat the child in the least restrictive alternative consistent with public safety. Any commitment of a child to a secure residential program must be to a program separate from adult forensic programs. If the child attains competency, case management and supervision of the child will be transferred to the Department of Juvenile Justice to continue delinquency proceedings. The court retains authority, however, to order the Department of Children and Family Servicesies to provide continued treatment to maintain competency.

(A) A child adjudicated incompetent because of mental retardationintellec-tual disablity may be ordered into a program designated by the Department of Children and Family Service-sies for retardedintellectually disabled children.

(B) A child adjudicated incompetent because of mental illness may be ordered into a program designated by the Department of Children and Family Servicesies for mentally ill children.

(7) [No Change]

(8) Treatment Alternatives to Commitment. If a child who is found to be incompetent does not meet the commitment criteria of subdivision (a)(4), the court shall order the Department of Children and Family- Servicesies to provide appropriate treatment and training in the community. All court-ordered treatment must be in the least restrictive setting consistent with public safety. Any residential program must be separate from an adult forensic program. If a child is ordered to receive such services, the services shall be provided by the Department of Children and Family Servicesies. The competency determination must be reviewed at least every 6 months, or at the end of any extended period of treatment or training, and any time the child appears to have attained competency or will never attain competency, by the service provider. A copy of a written report evaluating the child’s competency must be filed by the provider with the court, the Department of Children and Family Servicesies, the Department of Juvenile Justice, the state, and counsel for the child.

(9) [No Change]

(b) [No Change]

(c) Appointment of Expert Witnesses; Detention of Child for Examination.

(1) — (3) [No Change]

(4) For competency evaluations related to mental retardationintellectual disability, the court shall order the Developmental Services Program Office of the Department of Children and Family Servicesies to examine the child to determine if the child meets the definition of retardationintellectual disability in section 398.063, Florida Statutes, and, if so, whether the child is competent to proceed or amenable to treatment through the Department of Children and Family Servicesies’ retardationintellec-tual disability services or programs.

(d) Competence to Proceed; Scope of Examination and Report.

(1) [No Change]

(2) Treatment Recommendations. If the experts find that the child is incompetent to proceed, they shall report on any recommended treatment for the child to attain competence to proceed. A recommendation as to whether residential or nonresidential treatment or training is required must be included. In considering issues related to treatment, the experts shall report on the following:

(A) The mental illness, mental re-tardationintellectual disability, or mental age causing incompetence.

(B) The treatment or education appropriate for the mental illness or mental retardationintellectual disability of the child and an explanation of each of the possible treatment or education alternatives, in order of recommendation.

(C)-(E) [No Change]

(3)-(5) [No Change]

(e) Procedures After Judgment of Not Guilty by Reason of Insanity.

(1) [No Change]

(2) After finding the child not guilty by reason of insanity, the court shall conduct a hearing to determine if the child presently meets the statutory criteria for involuntary commitment to a residential psychiatric facility.

(A) If the court determines that the required criteria have been met, the child shall be committed by the juvenile court to the Department of Children and Family Servicesies for immediate placement in a residential psychiatric facility.

(B)-(G) [No Change]

RULE 8.135. CORRECTION OF DISPOSITION OR COMMITMENT ORDERS

(a) [No Change]

(b) Motion to Correct Disposition or Commitment Error. A motion to correct any disposition or commitment order error, including an illegal disposition or commitment, may be filed as allowed by this subdivision. The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days either admitting or contesting the alleged error. Motions may be filed by the state under this subdivision only if the correction of the error would benefit the child or to correct a scrivener’s error.

(1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal, a child, the state, or the department may file a motion to correct a disposition or commitment order error.

(A) This motion stays rendition under Florida Rule of Appellate Procedure 9.020(hXi).

(B) [No Change]

(2) [No Change]

RULE 8.255. GENERAL PROVISIONS FOR HEARINGS

(a)-(h) [No Change]

(i) Advising Parents. At any hearing when it has been determined that reunification is not a viable alternative, and prior to the filing of the petition for termination of parental rights, the court shall advise the parent of the availability of private placement of the child with an adoption entity as defined in Chapter 63, Florida Statutes.

Committee Notes

[No Change]

RULE 8.345. POST-DISPOSITION RELIEF

(a) Motion for Modification of Placement. A child who has been placed in his or her own home, in the home of a relative, or in some other place, under the supervision or legal custody of the department, may be brought before the court by the department or any interested person on a motion for modification of placement. If neither the parents, the legal custodian, nor any appointed guardian ad litem or attorney ad litem object to the change, then the court may enter an order making the change in placement without a hearing. If the parents, the legal custodian, or any appointed guardian ad litem or attorney ad litem object to the change of placement, the court shall conduct a hearing and thereafter enter an order changing the placement, modifying the conditions of placement, continuing placement as previously ordered, or placing the child with the department or a licensed child-caring agency.

(1) In cases in which the issue before the court is whether a child should be reunited with a parent, and the child is currently placed with someone other than a parent, the court must determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

(2) In cases in which the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the court must determine that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.

(b)[No Change]

RULE 8.425. PERMANENCY HEARINGS

(a) [No Change]

(b) Determinations at Hearing.

(1) — (3) [No Change]

(4) If the court approves a permanency goal of adoption, the court shall advise the parents of the availability of private placement of the child with an adoption entity, as defined in chapter 63, Florida Statutes.

(c) [No Change]

(d) Permanency Order.

(1) — (2) [No Change]

(3) If the court approves a permanency goal of adoption, the order approving this goal shall include a provision stating that the court advised the parents of the availability of private placement of the child with an adoption entity as defined in chapter 63, Florida Statutes, during the permanency hearing.

(34) If the court approves a permanency goal of permanent guardianship of a dependent child, placement with a fit and willing relative, or another planned permanent living arrangement, the court shall make findings as to why this permanent placement is established without adoption of the child to follow. The department and the guardian ad litem must provide the court with a recommended list and description of services needed by the child, such as independent living services and medical, dental, educational, or psychological referrals, and a recommended list and description of services needed by his or her caregiver.

(45) If the court establishes a permanent guardianship for the child, the court’s written order shall

(A)-(E) [No Change]

(56) The court shall retain jurisdiction over the case and the child shall remain in the custody of the permanent guardian unless the order creating the permanent guardianship is modified by the court. The court shall discontinue regular review hearings and relieve the department of the responsibility for supervising the placement of the child. Notwithstanding the retention of jurisdiction, the placement shall be considered permanency for the child.

(67) If the court permanently places a child with a fit and willing relative, the court’s written order shall

(A)-(D) [No Change]

(78) If the court establishes another planned permanent living arrangement as the child’s permanency option:

(A)-(D) [No Change]

(e)-(f) [No Change]

FORM 8.947 DISPOSITION ORDER-DELINQUENCY

DISPOSITION ORDER

A petition was filed on.(date).alleging.(name)...age, to be a delinquent child. The court finds that it has jurisdiction of the proceedings.

Present before the court were:

the child;

.(name).Assistant State Attorney;

.(name).. Assistant Public Defender/defense attorney;

.(name)., guardian;

.(name).. DJJ juvenile probation officer.

At the hearing on.(date).after.entry of a plea/an adjudicatory hearing.. the child was found to have committed the delinquent acts listed below:

Count Count Count Count

Charge .

Lesser .

Maximum .

Degree

Guilty .

Nolo contendere .

Nolle prosse .

Adjudicated .

Adj. withheld .

The predisposition report was.received and considered/waived by the child.

The court, having considered the evidence and comments offered by those present, having inquired, and being otherwise fully advised in the premises ORDERS THAT:

Adjudication of delinquency is withheld.

The child is adjudicated delinquent,

. The child is committed to a.licensed child caring agency.the Department of Juvenile Justice for placement in:

. a minimum-risk nonresidential commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first.

a . low- or . moderate-risk commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first, because:

. die child is before the court for disposition of a felony;

. the child has previously been adjudicated for a felony offense;

. the child previously has been adjudicated or had adjudication withheld for three or more misdemeanor offenses;

. the child is before the court for disposition for a violation of sections 800.03, 806.031, or 828.12, Florida Statutes; or

. the court finds by a preponderance of the evidence that the protection of the public requires such placement or that the particular needs of the child would be best served by such placement. The facts supporting this finding are:.

a high-risk commitment program for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first, because the child is before the court for disposition of a felony.

a maximum-risk commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first, because the child meets the criteria in section 985.465 or 985.494, Florida Statutes.

The child is allowed.days credit for time spent in secure detention or incarceration before this date.

The child shall be placed on

. home detention.with/without.electronic monitoring until placement.

. secure detention until placement.

The court has orally pronounced its reasons for adjudicating and committing this child.

The court retains jurisdiction to accept or reject the discharge of this child from commitment, as provided by law.

The child is placed on post-commitment juvenile probation for an indefinite period not to exceed the child’s 19th birthday or the maximum term of imprisonment an adult could receive for each count listed above, whichever comes first.

JUVENILE PROBATION: The child is .....placed on/continued in.juvenile probation under supervision of.the Department of Juvenile Justice/.(name).and

. the court having withheld adjudication of delinquency, for an indefinite period not to exceed the child’s 19th birthday.

. the court having adjudicated the child delinquent, for an indefinite period not to exceed the child’s 19th birthday or the maximum term of imprisonment an adult could receive for each count listed above, except for a second degree misdemeanor, six months, whichever comes first.

DISMISS: The case is dismissed.

Disposition on each count is.concurrent/consecutive.

This case disposition is.concurrent/consecutive.... with case number.

GENERAL CONDITIONS OF JUVENILE PROBATION. The child shall abide by all of the following conditions:

1. The child shall obey all laws.

2. The child shall be employed full-time or attend school with no unexcused absences, suspensions, or disciplinary referrals.

3. The child shall not change or leave.his/her.... residence, school, or place of employment without the consent of.his/her..... parents and juvenile probation officer.

4. The child shall answer truthfully all questions of.his/her..... juvenile probation officer and carry out all instructions of the court ana juvenile probation officer.

5. The child shall keep in contact with the juvenile probation officer in the manner prescribed by the juvenile probation officer.

6. The child shall not use or possess alcoholic beverages or controlled substances.

SPECIAL CONDITIONS OF JUVENILE PROBATION. The child shall abide by all of the conditions marked below:

Restitution is ordered. Parent and child are responsible.jointly and severally.

Amount is reserved.

$.to be paid to.(name).Payments shall begin.(date).and continue at the rate of S.each month.

The court retains jurisdiction under Chapter 985, Florida Statutes, to enforce its restitution order, regardless of the age of the child.

Community Service.hours are to be performed by the child at the rate of.hours per month. Written proof is to be provided to the juvenile probation officer.

A letter of apology to be written by the child to.(name).within.days. The letter must be a minimum of.words.

A.word essay to be written by the child on.(subject).... and provided to the juvenile probation officer within 30 days.

The child may have no.contact with victim($),.(name(s)).

A.mental health/substance abuse.evaluation to be completed by the child within.days. The child will attend and participate in every scheduled appointment and successfully attend and complete any and all recommended evaluations and treatment.

The parent(s).is/are.to complete counseling in.

A curfew is set for the child at.p.m. Sunday through Thursday and.p.m. Friday and Saturday.

The child’s driver’s license is suspended/ revoked/withheld for (time period).

The child is to complete a.detention/jail/ prison.... tour within.days.

The child will be subject to random urinalysis.

The child will be electronically monitored.

The child will successfully complete all sanctions of the original juvenile probation order.

Other:.

The child must pay court costs of $.. as specified below.

GUN CHARGES

The court finds that one of the above charges involves the use or possession of a firearm and further ORDERS the following:

. The child’s driver’s license is.suspended/ revoked.for.1/2.years.

. The child is to serve ⅞4815/21.... days in the Juvenile Detention Center?, and shall not. receive credit for time served prior to adjudication.

THE COURT FURTHER FINDS AND ORDERS:

. The child must:

. oav S.(no less than S50 per case when a misdemeanor offense is charged) or $.(no less than S100 per case when a felony offense is charged), the costs of prosecution and investigation, under sections 938.27 and 985.032. Florida Statutes.

. pay $.the Victim's Crime Compensation Trust Fund fee, under section 938.03, Florida Statutes;

. pay $. the Teen Court cost, under section 938.19, Florida Statutes (if authorized by county ordinance);

. pay $., the Public Defender application fee, under section 27.52, Florida Statutes;

. pay $. the Public Defender attorney fee, under section 938.29, Florida Statutes;

. pay $. other costs, under section(s).. Florida Statutes.

. The child has been adjudicated delinquent and the child is required to pay $.an Additional cost, under section 939.185, Florida Statutes, if authorized by county ordinance.

. The child has been adjudicated delinquent and assessed a fíne and the child is required to pay $.to the Crime Prevention Trust Fund, under section 775.083(2), Florida Statutes.

. The child has committed an enumerated crime against a minor and the child is required to pay $.. under section 938.10, Florida Statutes.

. The child has violated chapter 794, Florida Statutes (sexual battery) or chapter 800 (lewd or lascivious) and is ordered to make restitution to the Crimes Compensation Trust Fund under section 960.28(5), Florida Statutes, for the cost of the forensic physical examination.

. The child has the inability to pay all court costs, including costs of prosecution, public defender application fees and costs of representation, and shall perform.hours of community service in lieu of these costs and fees.

. The child .....has been adjudicated delinquent/has entered a pica of no contest/has entered a plea of guilty.to a felony or an enumerated misdemeanor, and the child is required to submit specimens under section 943.325, Florida Statutes.

. Under section 985.039, Florida Statutes:

the parent/legal guardian.(name).shall pay to the Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, FL 32399-3100, $5 per day for each day the child is in residential commitment.

the parent/legal guardian.(name).shall pay to the Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, FL 32399-3100, $1 per day for each day the child is on probation, nonresidential commitment, or conditional release.

the parent/legal guardian.(name)., shall pay to the Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, FL 32399-3100, a REDUCED fee of $.per day for each day the child is in the custody of or supervised by the department. This reduced fee is based on the court’s finding:

that the parent/iegal guardian was the victim of the delinquent act or violation of law for which the child is currently before the court and is cooperating in the investigation of the offense.

of indigency or significant financial hardship. The facts supporting this finding are:

The cost of care/supervision fee is WAIVED based on the court’s finding:

that the parent/legal guardian was the victim of the delinquent act or violation of law for which the child is currently before the court and is cooperating in the investigation of the offense.

of indigency or significant financial hardship. The facts supporting this finding are:

. The parent/guardian,.(name)...(address).. shall be liable for.% of the payment. The parent/guardian.(name).(address).. shall be liable for.% of the payment.

The child is placed on notice that the court may modify the conditions of .....his/her.... juvenile probation at any time and may revoke the juvenile probation if there is a violation of the conditions imposed.

The parties are advised that an appeal is allowed within 30 days of the date of this order.

DONE AND ORDERED in .(city)., . County, Florida on .(date).. at . a.m./p.m.

Circuit Judge

Copies to:

      . Art. V, § 2(a), Fla. Const.

      . All comments must be filed with the Court on or before December 2, 2013, with a certificate of service verifying that a copy has been served on the Committee Chair, Whitney M. Untiedt, 35 North Main Street, Gainesville, Florida 32601-5323, untiedtw@pdo8.org, and on the Bar Staff Liaison to the Committee, Ellen Sloyer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, esloyer@flabar. org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until December 23, 2013, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC13-1355.
    Supreme Court of Florida.
    Oct. 3, 2013.
    Whitney M. Untiedt, Chair, Juvenile Court Rules Committee, Gainesville, FL, John F. Harkness, Jr., Executive Director, Ellen H. Sloyer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar Juvenile Court Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to the Florida Rules of Juvenile Procedure (the Juvenile Procedure rules). See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amendments to the following rules: 8.085 (Prehearing Motions and Service); 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers); and 8.635 (Process). The amendments conform the requirements for e-mail service in the Juvenile Procedure rules with amendments to Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Documents), adopted by the Court in In re Amendments to Florida Rule of Judicial Administration 2.516, 112 So.3d 1173 (Fla.2013). The Committee’s proposals were unanimously approved by the Board of Governors of The Florida Bar.

After considering the Committee’s straightforward proposals under our fast-track procedures, we adopt the amendments as proposed. The Florida Rules of Juvenile Procedure are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 8.085. PREHEARING MOTIONS AND SERVICE

(a) [No Change]

(b) Service of Pleadings and Papers.

(1) [No Change]

(2) How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Unless excused — by the coui-L-sService upon the attorney or party shall be made by electronic mail (email) consistent with the requirements of Florida Rule of Judicial Administration 2.516, unless the parties stipulate otherwise. Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy or by mailing it to the attorney or party’s last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall mean:

(A)-(E) [No Change]

(3) Filing. All original papers, copies of which are required to be served- upon par-tiesjdocuments must be filed with the court either before service or immediately thereafter . If the document required to be filed is to be an original and is not placed in the court file or deposited with the clerk, a certified copy must be so placed by the clerk.

(4) Filing with Court Defined. The filing of pleadings- and other-papersdocu-ments with the court as required by these rules shall be made by filing them with the clerk of the court in accordance with rule 8.004, except that the court-may permit the papers to be-filed -with the court , in which event the filing date-shall be noted thereon-and the papers shall be transmitted — to the office -of the clerk judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk. The date of filing is that shown on the face of the document by the notation of the judge or the time stamp of the clerk, whichever is earlier.

(5)-(6) [No Change]

(c) [No Change]

(d) Time for Service of Motions and Notice of Hearing. Service by e-mail is complete upon transmissionon the date it is sent and must be treated as service by mail for the computation of time. An email is deemed served on the date of transmission, -unlesslf the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by email, or by means authorized by subdivision (b)(2). If e-mail service is excused, a copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing. If a document is served by more than one method of service, the computation of time for any response to the served document shall be based on the method of service that provides the shortest response time.

(e) Pleading to Be Signed by Attorney. Every written paper or pleading of a party represented by an attorney shall be signed in the attorney’s individual name by such attorney, whose mailing address, primary e-mail address and telephone number, including area code, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida. Any document served by e-mail may be signed by any of the “/s/,” “/s,” or “s/” formats. The attorney may be required by an order of court to vouch for the authority to represent such party and to give the address of such party. Except when otherwise specifically provided by these rules or applicable statute, pleadings as such need not be verified or accompanied by affidavit.

(f)-(h) [No Change]

Committee Notes

[No Change]

RULE 8.225. PROCESS, DILIGENT SEARCHES, AND SERVICE OF PLEADINGS AND PAPERS

(a)-(e) [No Change]

(f) Notice and Service of Pleadings and Papers.

(l)-(4) [No Change]

(5) Method of Service. When service is required or permitted to be made upon a party or participant represented by an attorney, service shall be made upon the attorney unless service upon the party or participant is ordered by the court.

(A) [No Change]

(B) Service by Electronic Mail (“Ee-mail”). Service of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.

(i) Service on Attorneys. Upon appearing in a proceeding, an attorney must serve a designation ofde-signate a primary e-mail address and may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding. Every document filed by an attorney thereafter must include the primary e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the email address on record with The Florida Bar.

(ii) Exception to E-mail Service on Attorneys. Service by an attorney on another attorney must be made by e-mail unless excused by the cour-tunless the parties stipulate otherwise. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (c)(6) of this rule.

(iii)-(iv) [No Change]

(v) Time of Service. Service by email is complete upon transmission-on the date sent and must be-treated as service by mail for the computation of time. An e-mail is deemed served-on the-date-of-transmission, unlesslf the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by e-mail or by a means authorized by subdivision (f)(6).

(6) Service by Other Means. In addition to, and not in lieu of, service by email, service may also be made upon attorneys by any of the means specified in this subdivision. If a document is served by more than one method of service, the computation of time for any response to the served document shall be based on the method of service that provides the shortest response time. Service on and by all parties and participants who are not represented by an attorney and who do not designate an email address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or participant at their permanent mailing address if one has been provided to the court or to the party, participant, or attorney at their last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:

(A)-(F) [No Change]

(7) Filing. All original — documents must be filed with the court either before service or immediately thereafter. If the original of any bond or other document is required to be an original and is not placed in the court file or deposited with the clerk, a certified copy must be so placed by the clerk.

(8) — (11) [No Change]

RULE 8.635. PROCESS

(a) [No Change]

(b) Service of Pleadings and Papers.

(1) [No Change]

(2) How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.

(A) Service by Electronic Mail (“Re-mail”). Service of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk. Any document served by e-mail may be signed by any of the “/s/,” 7s,” or “s/” formats, so long as the filed originaldocument is signed in accordance with the applicable rules of court.

(i) Service on Attorneys. Upon appearing in any proceeding, an attorney must serve a designation of designate a principal e-mail address and may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding. Every document filed by an attorney thereafter must include in the signature block the principal e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.

(ii) Exception to E-mail Service on Attorneys. Service by an attorney-on another attorney must-be made by e-mail -unless excused by the-court. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (b)(2)(B) of this rule.

(iii)-(iv) [No Change]

(v) Time of Service. Service by email is complete upon transmission-on the day-it is -sent-and must-be treated as service by mail for the computation of time. — An e-mail is deemed served on the date-of-transmission. If the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately serve another copy by e-mail, or by a means authorized by subdivision (b)(2)(B) of this rule.

(B)-(C) [No Change]

(3) Filing. All original papers, copies of which are required to be served upon parties,documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or document required to be an original is not placed in the court file or deposited with the clerk, a certified copy may be so placed by the clerk.

(4) Filing with Court Defined. The filing of pleadings and other papersdocu-ments with the court as required by these rules shall be made by filing them with the clerk in accordance with rule 8.004 except that the judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk. The date of filing is the date shown on the face of the document by the judge’s notation or the clerk’s time stamp, whichever is earlier.

(5)-(6) [No Change]

(c) [No Change]

      . All comments must be filed with the Court on or before December 2, 2013, with a certificate of service verifying that a copy has been served on the Committee Chair, Whitney M. Untiedt, Office of the Public Defender, 35 North Main Street, Gainesville, Florida 32601-5323, untiedtw@pdo8.org, and on the Bar Staff Liaison to the Committee, Ellen Sloyer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, esloyer@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until December 23, 2013, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    Clayton HARRIS, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-1871.
    Supreme Court of Florida.
    Oct. 3, 2013.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Natalie D. Kirk, Assistant Attorney General, Tallahassee, FL, and Susan M. Shanahan, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

This case comes before this Court on remand from the decision of the United States Supreme Court in Florida v. Harris, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013). In our previous decision, we quashed the First District Court of Appeal’s decision in Harris v. State, 989 So.2d 1214 (Fla. 1st DCA 2008), and held that “the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog.” Harris v. State, 71 So.3d 756, 775 (Fla.2011). We concluded that “[b]ecause in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress.” Id.

The United States Supreme Court reversed our decision, holding that

evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

Harris, 133 S.Ct. at 1057. The United States Supreme Court concluded that “[bjecause training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, ... [the police officer] had probable cause to search Harris’s truck.” Id. at 1059.

Following the United States Supreme Court’s decision, on July 25, 2013, we ordered the parties to show cause why the opinion of the First District Court of Appeal should not be affirmed. After carefully considering the responses, we withdraw our prior opinion and now approve the decision of the First District. In addition, in light of the United States Supreme Court’s decision, we approve State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005), and State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005), and we disapprove Gibson v. State, 968 So.2d 631 (Fla. 2d DCA 2007), and Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), to the extent that these decisions are inconsistent with Hams. We remand this case to the First District for further proceedings consistent herewith.

It is so ordered.

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

POLSTON, C.J., recused.


text:
    Tony BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-2470.
    Supreme Court of Florida.
    Oct. 3, 2013.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Douglas J. Glaid, Senior Assistant Attorney General, Miami, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Third District Court of Appeal in State v. Brown, 77 So.3d 693 (Fla. 3d DCA 2011). After further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we dismiss this review proceeding.

It is so ordered.

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

PARIENTE and QUINCE, JJ„ dissent.


author: ORFINGER, C.J.

text:
    WYNDHAM VACATION RESORTS, INC., Appellant, v. TIMESHARES DIRECT, INC., etc., et al., Appellee.
    No. 5D11-1577.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Joshua D. Moore and David E. Cannella, of Carlton Fields, P.A., Orlando; Matthew J. Conigliaro, of Carlton Fields, P. A., St. Petersburg, for Appellant.
    David S. Cohen, of Law Offices of David S. Cohen, LC, Orlando, for Appellee.
   ORFINGER, C.J.

Wyndham Vacation Resorts, Inc. (“Wyndham”) appeals the partial final summary judgment entered in favor of Timeshares Direct, Inc. d/b/a/ Timeshares by Owners and Michael Starr (collectively, “Timeshares Direct”), after the court denied its claim for injunctive relief under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). For the following reasons, we reverse the partial final summary judgment on Wyndham’s claim for injunctive relief under FDUTPA.

Timeshares Direct provides an advertising service that assists timeshare owners in the resale and rentals of their timeshare interests. Wyndham is a multinational developer of vacation resorts and seller of new timeshares to consumers. In the course of its business, Wyndham acquires and maintains information relating to the owners of its timeshare intervals. This information includes home and cellular telephone numbers, addresses and other private contact information, credit card numbers, and the status of the member’s ownership account (collectively, “Owner Information”). Wyndham safeguards the Owner Information and maintains it as confidential and proprietary. Wyndham considers the Owner Information to be a valuable asset because its existing owners are its most profitable source of future sales. Access to the Owner Information in Wyndham’s database is restricted, and all employees who are given access to this information are required to sign confidentiality agreements. Any misappropriation of the Owner Information is punishable by termination.

Jose Fuentes worked at Wyndham and had access to the Owner Information. Fuentes admitted that for nearly two years, he regularly stole the Owner Information from Wyndham’s database and sold it to Shari Mathews, a leads broker, who sold leads to Timeshares Direct. Timeshares Direct used the Owner Information to solicit Wyndham’s owners to use its services to sell or lease their timeshare interests. In doing so, Timeshares Direct led the Wyndham owners to believe that it was affiliated with Wyndham. After Wyndham’s Consumer Affairs Office received numerous customer complaints relating to Timeshares Direct’s unsolicited contacts, Wyndham conducted an investigation leading to the instant dispute.

Wyndham filed a five-count complaint against Timeshares Direct, asserting that Timeshares Direct damaged its business relationships and reputation and sought to prevent continuing irreparable harm from the misappropriation of the Owner Information and the misrepresentation of its status as an affiliate of Wyndham. Wynd-ham sought injunctive relief and damages for misappropriation of trade secrets under chapter 688, Florida’s Uniform Trade Secrets Act (“FUTSA”) (Count I); damages under section 721.121, Florida Statutes, for failure to maintain lead records and wrongful acquisition and use of personal contact information of Wyndham Owners (Count II); damages under FDUTPA (Count III); injunctive relief under FDUTPA (Count IV); and damages based on negligent supervision (Count V). Relevant to this appeal, in Count IV of its complaint, Wyndham requested an injunction that (a) prevents Timeshares Direct from “exploiting, disclosing to third parties, or otherwise utilizing ... any confidential information belonging to Wynd-ham,” (b) prevents Timeshares Direct from “contacting members of Wyndham utilizing any confidential proprietary information that is the property of Wyndham,” and (c) affirmatively requires Timeshares Direct to return all confidential information belonging to Wyndham.

Timeshares Direct filed a motion for summary judgment, arguing, inter alia, that it was entitled to summary judgment on Wyndham’s FDUTPA claims because only “actual damages” are available under the Act, not injunctive relief, if no actual damages are sustained. In response, Wyndham asserted that “FDUTPA provides relief for a company to claim that deceptive and unfair trade practices caused injury to the business.” Following a hearing, the court entered partial summary judgment in favor of Timeshares Direct on all counts of Wyndham’s complaint except its FUTSA claim (Count I). Of relevance to this appeal, the trial court granted Timeshares Direct’s motion for summary judgment on “all of Wyndham’s claims against it based upon any alleged violation of [FDUTPA],” including Wynd-ham’s claim for injunctive relief (Count IV). The trial court found that Wyndham lacked actual damages and that the absence of such damages precluded injunc-tive relief under FDUTPA. This appeal followed.

"Whether summary judgment was properly granted is a question of law, which we review de novo. See The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). In doing so, we consider whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

The trial court ruled, as a matter of law, that because Wyndham could not prove actual damages on its FDUTPA claims, injunctive relief under FDUTPA was precluded. Wyndham challenges that ruling, arguing that the existence of actual damages has no bearing on the availability of injunctive relief available under section 501.211 to enjoin conduct that constitutes a deceptive or unfair trade practice. Wynd-ham asserts that Timeshares Direct’s use of the stolen Owner Information and its misrepresentations about a relationship between itself and Wyndham constitute deceptive or unfair trade practices subject to injunctive relief.

FDUTPA broadly prohibits any unfair or deceptive acts or practices committed in the conduct of any trade or commerce. § 501.204(1), Fla. Stat. (2010); see Collins v. DaimlerChrysler Corp., 894 So.2d 988, 989 (Fla. 5th DCA 2004). The purpose of FDUTPA is “[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” § 501.202(2), Fla. Stat. (2010); see KC Leisure, Inc. v. Haber, 972 So.2d 1069, 1072 (Fla. 5th DCA 2008). Thus, FDUTPA’s clear intent is to provide both equitable and legal remedies to aggrieved parties or persons, including businesses, who have sustained actual losses because of a violation of its provisions. See §§ 501.202(2), 501.204(1), Fla. Stat. (2010); Martinez v. Rick Case Cars, Inc., 278 F.Supp.2d 1371, 1378 (S.D.Fla.2003) (applying Florida law); Macias v. HBC of Fla., Inc., 694 So.2d 88, 90 (Fla. 3d DCA 1997).

Section 501.211(1), Florida Statutes, permits a claim for injunctive relief by “anyone aggrieved” by an unfair or deceptive act, which has occurred, is now occurring, or is likely to occur in the future. See, e.g., Haun v. Don Mealy Imports, Inc., 285 F.Supp.2d 1297 (M.D.Fla.2003); Klinger v. Weekly World News, Inc., 747 F.Supp. 1477, 1480 (S.D.Fla.1990); Macias, 694 So.2d at 90. Accordingly, regardless of whether an aggrieved party can recover “actual damages” under section 501.211(2), it may obtain injunctive relief under section 501.211(1). See Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F.Supp.2d 1271, 1292-93 (S.D.Fla.2001) (finding, under prior version, that while Del Monte could not recover monetary damages under FDUTPA, it could obtain declaratory and/or injunctive relief); Big Tomato v. Tasty Concepts, Inc., 972 F.Supp. 662, 664 (S.D.Fla.1997). Thus, the issue is whether a question of material fact exists about Wyndham’s status as an “aggrieved” party under FDUT-PA.

The trial court found there was a disputed issue of material fact whether the Owner Information qualifies as a trade secret and whether Timeshares Direct misappropriated the Owner Information. If the Owner Information is a trade secret or proprietary information, Wyndham clearly has a legal right to prevent its unauthorized disclosure or use. See Sensormatic Elec. Corp. v. TAG Co. US, LLC, 632 F.Supp.2d 1147, 1193 (S.D.Fla.2008) (finding that injunctive relief is appropriate remedy for FDUTPA violation, and that manufacturer had shown that it was injured by competitor’s unfair practices and faced irreparable harm if competitor was not enjoined from engaging in these practices in future). It also has a right to prevent any deceptive misrepresentations that Timeshares Direct is affiliated with Wyndham. Such conduct could create consumer confusion and damage Wynd-ham’s goodwill, which is actionable under FDUTPA. See, e.g., Pepsico, Inc. v. Distribuidora La Matagalpa, Inc., 510 F.Supp.2d 1110, 1116 (S.D.Fla.2007) (recognizing that consumer confusion created by trademark infringement created irreparable damage to PepsiCo’s goodwill). Accordingly, we conclude that the argument that Wyndham cannot satisfy the injury requirement of FDUTPA is unavailing. See, e.g., Big Tomato, 972 F.Supp. at 664 (recognizing that “anyone aggrieved” includes competitors who seek injunction against continued trademark infringement under section 501.211(1)); Klinger, 747 F.Supp. at 1480 (reiterating that under section 510.211(1), “anyone aggrieved” includes broader class of complainants than merely consumers; scope of injunctive remedy is greater than actual damage remedy under section 510.211(2)); Am. Pest Corps., Inc. v. Barco Chem. Div., Inc., 317 So.2d 789, 790 (Fla. 4th DCA 1975) (finding that competitor’s actions that caused likelihood of confusion by public about source, sponsorship, approval and affiliation was actionable under FDUTPA).

The trial court’s partial summary judgment against Wyndham on Count IV of its claim for injunctive relief under FDUTPA is reversed and this matter is remanded for further proceedings.

REVERSED and REMANDED.

SAWAYA and TORPY, JJ, concur.

      . §§ 501.201-.213, Fla. Stat. (2010).

      . Two years before this lawsuit was filed, Timeshares Direct, in an unrelated case, was enjoined from (1) stating or implying that it was affiliated with Wyndham and (2) using Wyndham's trade secrets or business information; and was ordered to include a copy of the consent final judgment in its employee handbook to create a conclusive presumption that all Timeshares Direct’s employees had actual knowledge of the actions prohibited by the consent final judgment.

      . We glean these facts, many of which were disputed, from the record, and express no opinion on the merits of the dispute.

      . We have jurisdiction to review the non-final order denying injunctive relief pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). Rule 9.130(a)(3)(B) allows district courts of appeal to review non-final orders that "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.” However, to the extent that Wyndham attempts to have this Court review the trial court's ruling on Count III, we must decline to do so. This Court may only review non-final orders that are specifically enumerated in rule 9.130, or which may be reviewable by an extraordinary writ pursuant to rule 9.100. Thus, we do not have jurisdiction to review by non-final appeal, that part of the summary final judgment that dismissed Wyndham’s claim for FDUTPA damages. See Suggs v. Sw. Fla. Water Mgmt. Dist., 953 So.2d 699, 700 (Fla. 5th DCA 2007); Faulk v. Air Prods. & Chems., Inc., 798 So.2d 820 (Fla. 1st DCA 2001); Supal v. Pelot, 469 So.2d 949 (Fla. 5th DCA 1985). The procedural limitations imposed by the rules do not permit review of “tag along” orders contained within reviewable non-final orders. See Chester v. Hendler, 428 So.2d 730, 732 (Fla. 4th DCA 1983) ("Nor does the fact that the dissolution of the temporary injunction is contained in the same order make the remainder of the questions contained therein reviewable under that rule”).


text:
    SUPREME CONSTRUCTION CORP., a Florida Corporation, Appellant, v. QBE INSURANCE CORPORATION, a Pennsylvania Corporation, Appellee.
    No. 3D12-1110.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.
    Erwin Rosenberg, Miami Beach, for appellant.
    Berk, Merchant & Sims and Evelyn M. Merchant and John R. Anderson, Miami and Raluca S. Neagu, for appellee.
    Before WELLS, C.J., and SUAREZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See GrayRobinson, P.A. v. Fireline Restoration, Inc., 46 So.3d 170 (Fla. 4th DCA 2010).


author: PER CURIAM. PER CURIAM.

text:
    Iaonnis George SIPSIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2673.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2012.
    Rehearing Denied March 20, 2013.
    Maria Shohat and Ira Loewy of Shohat, Loewy & Shohat, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 124 So.3d 757 (Fla.2012).

MAY, C.J., DAMOORGIAN and LeVINE, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

We previously affirmed the summary denial of this untimely postconviction motion. Sipsis v. State, 38 Fla. L. Weekly D81 (Fla. 4th DCA 2012) (citing Hernandez v. State, 37 Fla. L. Weekly S730 (Fla. Nov. 21, 2012)). Appellant’s motion sought to challenge a 1998 plea based on counsel’s alleged deficient performance in failing to advise the defendant about deportation consequences.

Appellant moved for rehearing, and this court granted appellant’s motion to stay pending a ruling in Chaidez v. United States, No. 11-820, 2013 WL 610201 (U.S. Feb.20, 2013). In Chaidez, the' Court ruled that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to convictions that became final prior to the decision in Padilla. Accordingly, the motion for rehearing is denied.

MAY, C.J., DAMOORGIAN and LEVINE, JJ., concur.


text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Katie M. Swango, Appellees.
    No. 1D12-1060.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2012.
    Jonathan H. Alden, Senior Assistant General Counsel and Marshall G. Wiseh-eart, Senior Assistant General Counsel, Tallahassee, for Appellant.
    A. Robert Whaley, General Counsel, M. Elaine Howard, Deputy General Counsel, and Amanda L. Neff, Senior Attorney, Tallahassee, for Appellee Florida Reemployment Assistance Appeals Commission.
   PER CURIAM.

The Department of Environmental Protection (DEP) seeks review of an order of the Unemployment Appeals Commission, predecessor to the Florida Reemployment Assistance Appeals Commission. We directed the parties to show cause why this appeal should not be dismissed as moot. Having considered the responses to the order to show cause, we dismiss the appeal.

The Department of Economic Opportunity determined the claimant was eligible for benefits as of April 24, 2011, and that DEP must reimburse the Unemployment Compensation Trust Fund should any benefits be paid. DEP challenged the rede-termination. The appeals referee affirmed “[t]hat portion of the determination dated October 3, 2011, holding the claimant qualified for benefits,” but expressly concluded that the “separation of employment [wa]s not attributable to the employer [DEP]; therefore, the employer remains non-charged.” The Commission affirmed the decision of the appeals referee, concluding the “record adequately supported] the referee’s material findings and the referee’s conclusion [wa]s a reasonable application of the pertinent laws to the material facts of the case.”

We dismiss this appeal for lack of standing. “An appeal of a wholly favorable judgment must be dismissed.” Dep’t of Health v. Fresenius Med. Care Hold ings, Inc., 935 So.2d 636, 637 (Fla. 1st DCA 2006). See also Friends of Perdido Bay, Inc. v. Fla. Dep’t of Envtl. Prot., 44 So.3d 650, 651 (Fla. 1st DCA 2010) (dismissing cross-appeal, after appellants voluntarily dismissed appeal, because cross-appellants were the prevailing parties below and were neither adversely affected by any provision of the order under review nor faced any consequences by the application of the challenged statutory provision); Fla. Comm’n on Hurricane Loss Projection Methodology v. State, Dep’t of Ins., 716 So.2d 345, 346 (Fla. 1st DCA 1998) (declining to examine an administrative law judge’s rationale for a ruling at the behest of the party in whose favor the administrative law judge ruled); Gen. Dev. Utils., Inc. v. Fla. Pub. Serv. Comm’n, Div. of Admin. Hearings, 385 So.2d 1050, 1051 (Fla. 1st DCA 1980) (“It is a long standing rule that a judgment or decree wholly in favor of a party may not be appealed by him, for he is not aggrieved thereby.”).

DISMISSED.

BENTON, C.J., THOMAS, and ROWE, JJ., concur.

      . See ch.2012-30, § 2, Laws of Fla. (amending section 443.012(1), Florida Statutes, and renaming the commission).


text:
    Jay RAUBVOGEL, M. Raubvogel Co. Inc. Trust, and Seymour Raubvogel, Appellants, v. CREDIT SUISSE SECURITIES (USA) LLC, Appellee.
    No. 4D12-259.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    D. Patricia Wallace of Mathews Wallace LLP, Fort Lauderdale, and Christopher J. Gray of Law Office of Christopher J. Gray, P.C., New York, New York, for appellants.
    Charles L. Pickett, Jr. and Matthew N. Thibaut of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, Brian A. Burns and Allan N. Taffet of Duval & Stachenfeld LLP, New York, New York, for appellee.
   PER CURIAM.

The appellants challenge the trial court’s denial of their petition to confirm arbitration award and to award prevailing party-attorneys’ fees. The trial court denied the petition after finding the appellants waived their right to have the court determine the fees issue. Because the parties did not stipulate to the arbitration panel deciding the issue of attorneys’ fees, and there was no competent, substantial evidence supporting the trial court’s determination that the appellants expressly waived their right to have the trial court decide the issue, we reverse and remand for further proceedings.

The appellants sought attorneys’ fees pursuant to section 517.211(6), Florida Statutes (2009), which provides for prevailing party attorneys’ fees in cases involving unlawful securities sales, unless the court finds such an award would be unjust. The court did not make a finding that the appellants were not the prevailing party or that the award of fees would be unjust. Rather, it found that the appellants expressly waived their right to have the court determine the issue of attorneys’ fees. The standard of review is a mixed one, “whereby findings of fact are reviewed under a competent and substantial evidence standard and legal questions are reviewed de novo.” Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. 4th DCA 1997) (citation omitted).

“Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” § 682.11, Fla. Stat. (2009). The language “not including counsel fees” has been interpreted to mean that a court, not an arbitrator, determines the issue of attorney’s fees. See Turnberry Assocs. v. Serv. Station Aid, Inc., 651 So.2d 1173, 1175 (Fla.1995). However, our courts have recognized that parties may agree to put the issue of attorneys’ fees before the arbitrator. See id. (“[T]he parties by agreement may waive their entitlement to have the circuit court decide the issue of attorney’s fees and by doing so may confer subject matter jurisdiction upon an arbitrator to award attorney’s fees,” and “[t]he arbitrator has no authority to award fees absent an express waiver of this statutory right.”); D.H. Blair & Co., Inc. v. Johnson, 697 So.2d 912, 913-14 (Fla. 4th DCA 1997) (recognizing Tumberry’s rule requiring an express waiver).

This court has explained what constitutes an express waiver:

In Tumberry, we believe that the supreme court used the term “express” as it is used in the field of contracts; a waiver or agreement is “express” when it “is arrived at by words, oral or written .... ” Commerce P’ship. 8098 Ltd. P’ship. v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997). This means that under Tumberry there can be no waiver implied in fact; a court cannot “examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Id. As the third district has observed, for there to be an “express waiver” under Tumberry, “there must be either a stipulation dur-mg the course of arbitration or a specific finding based on substantial, competent evidence that the parties agreed to submit the attorney’s fees issue to the arbitrator.” GCA, Inc. v. 90 S.W. 8th St. Enters., Inc., 696 So.2d 1230, 1233 (Fla. 3d DCA 1997). Of course, evidence of the parties’ agreement may well be, as Judge Klein’s concurring opinion points out, that the arbitrator took evidence from the parties and awarded or denied fees.

Appelbaum v. Fayerman, 937 So.2d 282, 284 (Fla. 4th DCA 2006).

In this case, the appellee does not rely on an on-the-record oral or written stipulation. Instead, it argues that the record contains competent, substantial evidence supporting the trial court’s finding of an express waiver. We disagree. In finding that the parties agreed to submit the issue of attorneys’ fees to the arbitrator, the trial court relied in part on the appellants’ request for attorneys’ fees in their initial arbitration pleadings and amended pleadings. As discussed in Ap-pelbaum, requests for attorneys’ fees in arbitration pleadings are not sufficient evidence of express waiver. Id. at 284. The trial court also relied on the uniform submission agreements entered into by the parties. However, the language of these agreements does not provide evidence of express waiver. See D.H. Blair & Co., 697 So.2d at 914 (language in parties’ arbitration submission agreement that they agreed to submit all controversies or disputes of any kind to arbitration did not amount to express waiver). The trial court also relied on a brief the appellants filed with the arbitrators after the arbitration hearing, but before the award, an affidavit filed by the appellee’s attorney, and the arbitration award. None of these items make it clear that the appellants did anything more than make references to their entitlement to attorneys’ fees. The language used by the arbitrators in the arbitration award does not make it clear that the arbitrators determined the attorneys’ fees issue on the merits. Because there was no oral or written stipulation, and the trial court’s finding of express waiver was not supported by competent, substantial evidence, we reverse and remand for the trial court to entertain the merits of the attorneys’ fees request.

Reversed and remanded for further proceedings.

POLEN, GROSS, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur.

      . The petition is purely a vehicle to obtain attorneys’ fees, as the defendant already paid the amount awarded in arbitration.

      . The arbitration agreement in the instant case does not provide for arbitration of the attorneys' fees issue.


text:
    Barbara Angela MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2408.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

STEVENSON, CIKLIN and LEVTNE, JJ., concur.


text:
    Hector ROMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2156.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Hector Roman, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See § 775.084(2), Fla. Stat. (2006); Clark v. State, 54 So.3d 1033 (Fla. 4th DCA 2011).

WARNER, DAMOORGIAN and GERBER, JJ., concur.


text:
    Charles Nehemiah NELEMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1682.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

GROSS, DAMOORGIAN, JJ., and STONE, BARRY J., Senior Judge, concur.


text:
    Merita JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1589.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    James Sellers ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-504.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

STEVENSON, GROSS and CIKLIN, JJ., concur.


text:
    Terrance B. PEOPLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-302.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Brandin LAWLESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-115.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

STEVENSON, CIKLIN and CONNER, JJ., concur.


text:
    Alex R. REID, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4904.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Milan SEARS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4066.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Milan Sears, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(a)(Z); Baker v. State, 878 So.2d 1236, 1241 (Fla.2004). Appellant’s claim that the trial court lacked jurisdiction because the probable cause affidavit allegedly lacked an official seal is frivolous. Collins v. State, 97 So.3d 305 (Fla. 4th DCA 2012); Parks v. State, 101 So.3d 1265 (Fla. 4th DCA 2012); Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009).

The clerk is directed to send a certified copy of this opinion to the appropriate institution for disciplinary proceedings. § 944.279(1), Fla. Stat. (2012). Appellant is cautioned that any further frivolous or malicious filing may result in this court imposing the sanction of no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999).

WARNER, GROSS and CIKLIN, JJ„ concur.


text:
    Deron Javoris BURROUGHS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2629.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Epps v. State, 55 So.3d 710 (Fla. 1st DCA 2011).

STEVENSON, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Clyde ROLAX, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-619.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

GROSS, DAMOORGIAN, JJ, and STONE, BARRY J., Senior Judge, concur.


text:
    ALLSTATE INSURANCE COMPANY, an Illinois corporation, Allstate Indemnity Company, an Illinois corporation, Deerbrook Insurance Company, an Illinois corporation, and Northbrook Indemnity Company, an Illinois corporation, Petitioners, v. TOTAL REHAB AND MEDICAL CENTERS, INC., Prosper Diagnostic Centers, Inc., and Family Medical and Rehab Centers, Inc., Respondents.
    No. 4D12-3095.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Frank S. Goldstein of Goldstein Law Group, P.A., Fort Lauderdale, John J. Wilke of The Law Office of John J. Wilke, P.A., Boca Raton, and Jacqueline G. Emanuel of Knoerr <& Emanuel, P.A., Fort Lauderdale, for petitioners.
    Stephen A. Marino, Jr., and Mallory L. Gold of Ver Ploeg & Lumpkin, P.A., Miami, for respondents.
   PER CURIAM.

Petitioners, Allstate Insurance Company, Allstate Indemnity Company, Deer-brook Insurance Company, and North-brook Indemnity Company (hereinafter “Petitioners”), filed suit in Palm Beach circuit court seeking monetary damages from Total Rehab and Medical Centers, Inc., Prosper Diagnostic Center, Inc., and Family Medical and Rehab Centers, Inc. (hereinafter “Respondents”). During the pretrial stage, two attorneys working for Petitioners created a master summary chart (“MSC”) to be used as a trial exhibit. The MSC consisted of a combination of personal injury protection files generated by Petitioners, and medical and billing charts generated by Respondents. Over Respondents’ objection, MSC was introduced into evidence as a summary based on section 90.956, Florida Statutes (2004). However, the trial was terminated before judgment when a mistrial was declared by the trial court.

Prior to retrial, Respondents filed a motion to take the depositions of Petitioners’ attorneys who created the MSC. After conducting a hearing, the trial court granted the motion, finding that because the attorneys were “interject[ed] into this case by [their] creation of a critical trial exhibit,” Respondents were “permitted to question the accuracy and methodology used for creation of the [MSC].” From this order, Petitioners seek certiorari review, contending that the trial court’s order departed from the essential requirements of the law to the irreparable material detriment of Petitioners because deposing an opposing party’s attorney interferes with the attorney-client and work product privileges. We deny the petition on the merits.

To be entitled to a writ of certio-rari, a party must demonstrate both irreparable harm, further defined as a material injury that cannot be remedied on plenary review, and a departure from the essential requirements of the law. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012). We believe Petitioners have shown irreparable harm not correctable on direct appeal as the result of the trial court’s order, as the order allows for discovery potentially protected by attorney-client or work-product privileges due to questioning of the two named attorneys who created the MSC trial exhibit. See generally 1620 Health Partners, L.C., d/b/a NHC Healthcare v. Fluitt, 830 So.2d 935, 937 (Fla. 4th DCA 2002); see also The Haskell Co. v. Georgia Pac. Corp., 684 So.2d 297, 298 (Fla. 5th DCA 1996).

However, Petitioners have failed to show that the trial court’s order departed from the essential requirements of the law. While it is true that the attempt to depose a party’s attorney during ongoing litigation has been rejected when irrelevant or privileged information was sought from the attorney, attorneys are not per se exempt from the reach of Florida Rule of Civil Procedure 1.810(a), which allows the taking of the deposition of any person. See Marbulk Shipping, Inc. v. Bhagat, 948 So.2d 931, 932 (Fla. 3d DCA 2007); Somarriba v. Ali, 941 So.2d 526, 528, n. 1 (Fla. 3d DCA 2006); Young, Stern, & Tannenbaum, P.A. v. Smith, 416 So.2d 4, 5 (Fla. 3d DCA 1982). As the trial court retains authority under Rule 1.310(c)(d) to prohibit inquiry of genuinely privileged materials, we cannot say the order appealed from departs from the essential requirements of the law, a prerequisite to certiorari relief. See Marbulk Shipping, 948 So.2d at 932. Compare Northup v. Acken, 865 So.2d 1267, 1270-72 (Fla.2004) (evidence reasonably expected to be introduced at trial not protected by work product privilege).

While we recognize the potential for abuse of the process of deposing the opposing party’s attorney during ongoing litigation, we are confident trial courts in this district will use their powers of supervision over discovery to prevent privileged information from being disclosed.

Petition Denied.

WARNER, POLEN and DAMOORGIAN, JJ„ concur.


author: LEVINE, J.

text:
    Ashley WALDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4579.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issues presented for our consideration are whether the trial court committed fundamental error by answering a juror’s question in a manner which could have been interpreted as a comment on the evidence and by taking into consideration appellant’s perjury during trial in sentencing appellant. Appellant raises two other issues that we find without merit. However, we find the first two issues to be fundamental error, and as such, we reverse and remand.

Appellant was charged with burglary of a structure while armed, aggravated assault with a deadly weapon, false imprisonment, and grand theft of an automobile. At trial, the victim testified to working at a massage business operating out of a converted house. The victim saw appellant walking around the building, which was strange because customers normally rang the bell. The victim and her friend went to . the victim’s car and drove around the block. When the victim returned, she saw appellant and a.woman trying to open the door to the business. Appellant and the woman got into a car and left with the victim following behind and writing down appellant’s tag number. When the victim lost appellant, she drove back to the business.

Upon entering the building, the victim encountered appellant with two knives. Appellant put the larger knife to the victim’s neck and demanded money. The victim offered to go to the bank with appellant to get money. Appellant accused the victim of lying and directed her to a bedroom with a knife and then tied her up with tape, closed the door, and left the building. Subsequently, the victim untied herself and flagged down a motorist who contacted the police. The victim later identified appellant from a photo lineup. A detective was able to locate appellant from the tag number given by the victim. Appellant was questioned by the detective, and his videotaped confession was published to the jury but not transcribed. The detective testified that appellant admitted going into the house through a screen. Two of appellant’s fingerprints were found on tape recovered from the entrance of the bedroom.

Appellant testified to a different version of events. According to appellant, he had permission to enter the establishment, which he referred to as a “whorehouse.” During his sexual encounter with one of the women, he used tape on her. He paid the woman some money and told her he would pay the balance later. The woman and the owner of the establishment got mad at him. Appellant claimed he did not mention his tryst when he spoke with law enforcement because he did not want to tell the police he paid for sex.

During deliberations, the jury submitted the following question to the trial court: “Does the State have to prove he was armed within the structure?” The trial court, after discussions with counsel, referred the jury to the burglary instruction. The trial court stated, “In the burglary, the last paragraph is if you find [appellant] guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether in the course of committing the burglary, [appellant] was armed or armed himself within the structure with a dangerous weapon.”

A juror then asked in open court, “Is it fair to say that Ashley Walden [appellant] was armed within a structure with a dangerous weapon?” The trial court responded, “He was armed or armed himself, yes.”

The jury found appellant guilty of burglary of a structure while armed, the lesser-included offense of assault, false imprisonment, and grand theft of an automobile.

At sentencing, the trial court stated the following in regard to appellant’s prior record: “Okay. That was nolle prossed. I am not taking that into consideration. I am taking into consideration is [sic] the trial and your trial testimony where you got up and made some kind of story up on the stand.” The trial court sentenced appellant, and this appeal ensues.

Absent a contemporaneous objection, an appellate court reviews a judge’s improper comment for fundamental error. Jones v. State, 612 So.2d 1370, 1373 (Fla.1992); Ross v. State, 386 So.2d 1191, 1195 (Fla.1980). Fundamental error is error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Mathew v. State, 837 So.2d 1167, 1170 (Fla. 4th DCA 2003) (quoting Rimmer v. State, 825 So.2d 304, 323 (Fla.2002)).

We note that “[a] judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” § 90.106, Fla. Stat. (2011).

While a judge may take some initiative to clear up uncertainties in the issues in a case, it is error for the judge to make any remark in front of the jury that might be interpreted as conveying the judge’s view of the case or an opinion on the weight, character, or credibility of the evidence.
Regardless of the proper intention of the court in making such remarks, in determining their effect on the jury we must consider that the high position which a judge holds in the scheme of the trial magnifies, in the minds of the jurors, the meaning of comments by the judge, to which he himself may not attach particular importance.

Jacques v. State, 883 So.2d 902, 905-06 (Fla. 4th DCA 2004) (citation omitted). “Where any doubt is raised that an accused was prejudiced by a judge’s remark, a new trial is warranted.” Rutledge v. State, 1 So.3d 1122, 1132 (Fla. 1st DCA 2009); see also Thomas v. State, 838 So.2d 1192 (Fla. 2d DCA 2003).

In Jacques, this court found fundamental error occurred where, during defense counsel’s closing argument, the judge commented, “That’s not what she said and that’s not what the record shows.” 883 So.2d at 905. Similarly, in the present case, the trial court, albeit inadvertently, made a comment that could have been construed by the jury as a comment on the evidence or appellant’s guilt. The trial court correctly reread the burglary instruction after the jury asked whether the state had to prove appellant was armed within the structure. A juror then orally asked, “Is it fair to say that [appellant] was armed within a structure with a dangerous weapon?” Because the juror appeared to be asking about the facts of the case, the court’s response could have been construed by the jury as a comment on the evidence or appellant’s guilt, thus warranting a new trial.

The trial court also committed fundamental error by considering appellant’s perjury during trial in sentencing appellant. Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012). In Josephs, during the sentencing hearing, the court stated to the defendant, “When you did testify during defense of this case, you blatantly lied.” Id. at 1271. The court then imposed his sentence. Because “a defendant’s perjury committed while under oath during trial is not a proper sentencing factor,” “[t]he trial court committed fundamental error in relying on the defendant’s untruthfulness in imposing his sentence.” Id. at 1272 (citation omitted).

Similarly, in the instant case, during the sentencing hearing, the trial court stated that it was “taking into consideration” appellant’s “trial testimony where [he] got up and made some kind of story up on the stand.” The court then imposed appellant’s sentence. Like in Josephs, this statement clearly reveals the trial court’s improper reliance on the defendant’s untruthfulness on the stand. Resentencing before a different judge is the resulting appropriate remedy. See id. However, because we also reverse and remand for a new trial, in the interest of judicial economy a different judge should preside over both the new trial and if necessary, the ensuing sentencing.

Reversed and remanded.

WARNER and CIKLIN, JJ„ concur.


author: GROSS, J.

text:
    Christopher HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3111.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Lisa Viseóme and Michael Salnick of Law Offices of Salnick, Fuchs & Bertisch, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Christopher Henry was charged with one count of second-degree sexual battery for raping his cellmate at the Palm Beach County Jail. His first jury trial in this case ended with a hung jury. At his second trial, which is the subject of this appeal, Henry’s primary defense was that he and the victim engaged in consensual sexual relations. We reverse the conviction because the trial court erroneously curtailed cross-examination of the victim about the details of a plea bargain in his case that was pending at the time of the alleged attack.

On direct examination of the victim, the prosecutor engaged in anticipatory rehabilitation by having the victim discuss the outcome of the criminal case that led him to be in the same cell as Henry:

[Prosecutor]: Now, [victim,] you were in the Palm Beach County Jail on some unrelated issues?
[Victim]: Yes.
[Prosecutor]: Did you plea to those issues?
[Victim]: Yes.
[Prosecutor]: Were you offered any type of deal or preferential treatment to testify in this ease?
[Victim]: No.
[Prosecutor]: Were you offered any type [of] leniency to testify in this case?
[Victim]: No.
[Prosecutor]: Did you receive any benefit whatsoever from law enforcement or the State’s Attorney Office to testify in this case?
[Victim]: No.

The prosecutor’s direct examination omitted the identity of the victim’s criminal charges, the degree of the felony charged, the potential sentence the victim faced, and the sentence the victim actually received as a result of his plea bargain.

In a proffer, the defense sought to cross-examine the victim to establish that (1) he was charged with aggravated stalking; (2) the charge was a third-degree felony; (3) the maximum penalty for a third-degree felony is five years in prison; (4) the victim received 18 months on probation pursuant to his plea bargain; (5) the victim was arrested on December 6, 2005; and (6) the victim remained in jail from the time of his arrest until he entered his plea in mid-January of 2006. The prosecutor objected to the proposed cross-examination on the grounds that it was “improper impeachment,” and that the victim’s crime was “not a conviction” or a “crime of dishonesty.” The trial court sustained the objection and prohibited the testimony.

The prosecutor’s objections appear to have assumed that the defense was seeking to impeach the victim by a prior conviction under section 90.610, Florida Statutes (2010); however, the facts surrounding the plea bargain in the victim’s pending case were admissible to show bias under section 90.608(2), Florida Statutes (2010).

“[T]he Sixth Amendment guarantees the right of an accused to attack a witness’ credibility by means of cross-examination directed toward revealing possible biases or ulterior motives of the witness as they may relate to the case at hand.” Smith v. State, 38 So.3d 871, 872 (Fla. 4th DCA 2010) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). “For purposes of discrediting a witness, a wide range of cross-examination is permitted as this is the traditional and constitutionally guaranteed method of exposing possible biases, prejudices and ulterior motives of a witness as they may relate to the issue or personalities.... ” Strickland v. State, 498 So.2d 1350, 1352 (Fla. 1st DCA 1986) (citations omitted). “The vital importance of full and searching cross-examination is even clearer when, as here, the prosecution’s case stands or falls on the jury’s assessment of the credibility of the key witness[ ].” Id. (citing Wooten v. State, 464 So.2d 640 (Fla. 3d DCA 1985)). Under such circumstances, “[ojbviously, a defendant has a strong interest in discrediting a crucial state witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony.” Livingston v. State, 678 So.2d 895, 897 (Fla. 4th DCA 1996) (citing Phillips v. State, 572 So.2d 16 (Fla. 4th DCA 1990)).

“A well recognized area of cross examination is how pending criminal charges may have influenced a witness’ cooperation with the state and the content of in-court statements.” Id. (citing Blanco v. State, 353 So.2d 602, 604 (Fla. 3d DCA 1977); Garey v. State, 432 So.2d 796, 797 (Fla. 4th DCA 1983)). “Defendants have the right to introduce evidence of the conditions of a plea bargain entered into between the State and one of its witnesses so that the jury may properly pass upon the credibility of the witness.” Engram v. State, 405 So.2d 428, 429 (Fla. 1st DCA 1981) (citing Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976)); Oliver v. State, 442 So.2d 317, 319-20 (Fla. 2d DCA 1983). Such examination is not limited to the fact that charges were pending against the witness; inquiry may be made regarding the specific nature of those charges. See, e.g., Bell v. State, 614 So.2d 562, 564 (Fla. 3d DCA 1993) (holding that, for the purpose of establishing bias, defense counsel is “entitled to ask about the specific crimes with which [the State’s witness] was charged”); Wasko v. State, 505 So.2d 1314, 1316 (Fla.1987) (“If Pierson had been the state’s witness, the terms of the plea agreement might have been admissible to show bias or motive.”).

For example, in Powe v. State, 413 So.2d 1272, 1272 (Fla. 1st DCA 1982), the first district reversed a defendant’s conviction where the trial court refused defense counsel’s request to inquire as to whether the state’s witness was aware that the charge to which he eventually pleaded carried a five-year minimum mandatory sentence. Although the jury was apprised of the witness’s plea and its terms, the Powe court found it significant that the witness’s knowledge of the five year “minimum mandatory penalty for a conviction of trafficking in methaqualone may have impacted significantly on the plea-bargaining agreement and on [the witness’s] willingness to testify against” the defendant. Id. at 1273.

Here, the victim testified that he had pending, unrelated charges which were resolved without any deal to testify in this case. However, the jury was not required to accept the victim’s characterization of the resolution of his pending case. The defendant was entitled to ask the victim about the six areas of cross-examination identified above to evaluate the victim’s credibility. Because this case was a credibility battle between the defendant and the victim, we cannot say beyond a reasonable doubt that the error in excluding the cross-examination did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

For guidance to the court on retrial, we note that the holding in this case does not cover the special conditions of the victim’s probation; the trial court should analyze the admissibility of the special conditions under section 90.403, Florida Statutes (2010). In addition, we find no error in the trial court’s exclusion of evidence about the victim’s prior drug use, see Edwards v. State, 548 So.2d 656, 658 (Fla.1989), nor do we find reversible error in the court’s handling of objections during closing argument.

Reversed and remanded for a new trial.

DAMOORGIAN, J., and HANZMAN, MICHAEL, Associate Judge, concur.

      . The charging statute provides as follows:
      A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, ors. 794.0115.
      § 794.011(5), Fla. Stat. (2010).

      . See Brookings v. State, 495 So.2d 135, 140 (Fla.1986); Bell v. State, 491 So.2d 537, 538 (Fla.1986); Charles W. Ehrhardt, Florida Evidence § 608.2 (2012 ed.).