author:
THOMPSON, Presiding Judge.
      MOORE, Judge,

text:
    Samuel ROBLERO v. COX POOLS OF THE SOUTHEAST, INC.
    2120214.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Britt V. Bethea of Greene & Phillips, Mobile, for appellant.
    H. Dean Mooty, Jr., and Joe E. Searcy, Jr., of Mooty & Associates, P.C., Montgomery, for appellee.
   THOMPSON, Presiding Judge.

Samuel Roblero appeals from a summary judgment in favor of his employer, Cox Pools of the Southeast, Inc. (“Cox Pools”), on its subrogation claim and from the judgment dismissing Roblero’s workers’ compensation claim against Cox Pools. The judgment specifically held that uninsured-motorist settlement proceeds that Roblero had been paid after a work-related motor-vehicle accident were subject to the subrogation rights of Cox Pools.

The relevant facts in this case are not in dispute. The record indicates that on May 10, 2010, while working within the line and scope of his employment with Cox Pools, Roblero was injured in a motor-vehicle accident. While Roblero was recovering from the injuries he had suffered in the accident, Cox Pools paid him $20,608.83 in temporary-total-disability workers’ compensation benefits. Cox Pools also paid $47,038 for Roblero’s medical treatment.

The driver of the other vehicle was at fault in the accident, and that driver was uninsured. Cox Pools’ uninsured-motorist insurance carrier, Penn National Insurance (“Penn National”), insured the vehicle in which Roblero had been riding at the time of the accident. Roblero made a claim for uninsured-motorist benefits with Penn National; that claim was settled for $30,000. Cox Pools’ policy limit for uninsured coverage with Penn National was $3 million.

On January 30, 2012, after obtaining the uninsured-motorist settlement, Roblero filed a complaint seeking workers’ compensation benefits from Cox Pools. In the complaint, Roblero alleged that, as a result of his work-related accident, he had sustained a permanent disability to his right shoulder and to his body as a whole. On April 19, 2012, Cox Pools filed a motion for a summary judgment, asserting subrogation rights to the $30,000 that Roblero had received from Penn National; Cox Pools asserted those subrogation rights in its answer and counterclaim to Roblero’s complaint asserting his workers’ compensation claim. A hearing on the motion was continued several times, at least in part because Roblero speaks little or no English, and the trial court determined that a Spanish-speaking interpreter should be provided for him at the hearing. The hearing ultimately was held on October 26, 2012.

On October 9, 2012, Cox Pools filed an amended motion for a summary judgment. In the amended motion, Cox Pools argued that Roblero was attempting to recover twice for the same injury. In addition to subrogation rights, Cox Pools sought a determination from the trial court that Roblero was estopped from recovering workers’ compensation benefits for the same injuries for which he had received a settlement from Penn National.

On October 29, 2012, after a hearing, the trial court entered a summary judgment, holding that the money Roblero had received from Penn National was subject to the subrogation rights of Cox Pools. The trial court also held that Roblero had already recovered once for his work-related injuries and that, in settling the uninsured-motorist claim, Roblero had given up the opportunity “to be made whole up to the policy limits of $3,000,000.” Therefore, the trial court determined, Roblero was es-topped from seeking an additional recovery from Cox Pools through the Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975. Accordingly, the trial court dismissed Roblero’s workers’ compensation action with prejudice. Roblero appealed.

Generally, we review a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). Furthermore, the issues Roblero raises on appeal involve questions of law, for which our review is de novo. Cocina Superior, LLC v. Jefferson Cnty. Dep’t of Revenue, [Ms. 2110807, March 15, 2013] — So.3d -, - (Ala.Civ.App.2013) (citing Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010)).

Roblero contends that the trial court erred by dismissing his workers’ compensation claim without first determining whether he was entitled to permanent-disability benefits as a result of his work-related injury and, if he is entitled to such benefits, whether the amount of those benefits exceeds the amount of the settlement proceeds he received from Penn National. In its appellate brief, Cox Pools appears to assert that this court cannot consider the issue whether the trial court improperly dismissed Roblero’s workers’ compensation claim because, it says, Roblero never presented the issue to the trial court. Cox Pools states that there were “multiple hearings” on its motion for a summary judgment and that Roblero “had every opportunity” to make and develop arguments other than whether the settlement proceeds relating to his uninsured-motorist claim were subject to subrogation, which, according to Cox Pools, was the only argument he made to the trial court in opposition to its motion.

Roblero filed a postjudgment motion in which he challenged, among other things, the propriety of the dismissal of his workers’ compensation claim; however, that motion was untimely filed. Nonetheless, we note that in its initial motion for a summary judgment, the only issue Cox Pools raised was whether it had a right of subrogation to the uninsured-motorist settlement proceeds. It made no assertion that Roblero should be precluded from bringing the workers’ compensation claim altogether; thus, there was no reason for Roblero to argue against the dismissal, of his workers’ compensation claim. Not until October 9, 2012, when it filed its amended motion for a summary judgment, did Cox Pools assert that Roblero should be “estopped from recovering for [his] injuries [through Cox Pools’ uninsured-motorist coverage] with Penn National and then attempting to obtain an additional remedy for the same injuries from Cox Pools, since [the Act] does not allow double recovery.” Cox Pools still did not explicitly seek a dismissal of Roblero’s workers’ compensation claim. Moreover, contrary to Cox Pools’ assertion, the record indicates that the only hearing on the merits of the motions for a summary judgment was the October 26, 2012, hearing.

Even though Roblero’s postjudgment motion was untimely, our de novo standard of review requires us determine whether, as a matter of law, the trial court properly dismissed Roblero’s workers’ compensation claim. Therefore, we reject Cox Pools’ contention that this court cannot consider Roblero’s challenge to the dismissal of his workers’ compensation claim.

In discussing whether an employee is required to elect between a workers’ compensation action and a third-party action after suffering a work-related injury, our supreme court has noted:

“In 1947, the Legislature removed the requirement that the injured employee elect between a common-law action against an allegedly negligent third party and compensation available from his employer under the Alabama Workmen’s Compensation Act. Act 635, Acts of Alabama 1947. The third party was defined as a ‘party other than the employer.’ ”

Reed v. Brunson, 527 So.2d 102, 108 (Ala.1988). What is now commonly called the “third-party statute” was first codified at Title 26, § 312, Code of Alabama 1940. As Judge Terry Moore has pointed out in his treatise on workers’ compensation law,

“[t]he statute has remained in substantially th[e] same form ever since. It allows an employee, or his or her dependents in case of death, to bring simultaneous or successive actions for the work-related injury or death, one for compensation and the other for civil damages under the third-party statute.”

2 Terry A. Moore, Alabama Workers’ Compensation § 21:56 (1998)(footnotes omitted).

The third-party statute now reads, in pertinent part:

“If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter [i.e., the Act] was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not the party is subject to this chapter, the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death, and the amount of the damages shall be ascertained and determined without regard to this chapter.”

§ 25-5-ll(a), Ala.Code 1975 (emphasis added).

In Baggett v. Webb, 46 Ala.App. 666, 674, 248 So.2d 275, 282 (Civ.1971), this court wrote of" Title 26, § 312, now codified at § 12-5-11(a):

“It is not intended that suit or settlement against the employer must precede or coincide with a third-party action. It is merely made clear that it is permissible and proper for an employee or his dependents to pursue two rights of action at the same time. An election to pursue one and not the other, or one prior to the other, is of itself, no defense to the action brought.”

In his treatise on workers’ compensation law, Judge Moore explained that,

“[s]ince Baggett, the third-party statute has been consistently read to authorize an employee with a work-related injury or occupational disease, or his or her dependents in case of death, to bring an action for damages for the injuries, in addition to any recovery available under the [Act]. In the normal case, the employee, or dependents, recover[s] compensation first and then proceeds against the third party, but the third party statute also envisions the reverse scenario, where the employee or dependents first pursue the third party and then institute a workers’ compensation action. In either case, the employer remains entitled to credit its compensation liability by the amount of the third party recovery in accordance with the provisions of the statute.”

2 Moore, Alabama Workers’ Compensation § 21:56 (footnotes omitted).

Under the Act, then, there is no prohibition against an employee’s bringing simultaneous or successive actions against an employer for workers’ compensation benefits and against a third party for damages. In fact, “[t]he only prohibition [in the Act is] against retaining double recovery by requiring credit against sums owed by the employer or reimbursement to the employer from damages recovered.” Baggett, 46 Ala.App. at 673, 248 So.2d at 281. The issue of Cox Pools’ right to subrogation in this case is discussed below. Nonetheless, under the facts of this case, Cox Pools contends, dismissal of Roblero’s workers’ compensation claim was proper because, it says, the Act does not allow for double recovery. Cox Pools admits that, “[i]n Alabama, an employee does not have to provide notice of a Third Party Action or settlement thereof nor does the employee have to obtain consent from the employer prior to the settlement of a Third Party Action.” However, Cox Pools says, the trial court had the “equitable authority” to “exercise” estoppel to protect Cox Pools’ subrogation rights.

Cox Pools cited no cases granting the trial court such “equitable authority,” and our research has revealed no authority allowing the trial court to “equitably” prevent Roblero from pursuing his workers’ compensation claim despite his settlement with Penn National. As Cox Pools acknowledges, Roblero had a legal right to settle his uninsured-motorist claim without notifying Cox Pools of the settlement. Under Alabama law, Roblero also had a legal right to pursue his workers’ compensation claim separately from his uninsured-motorist claim. Thus, under the facts of this case, Cox Pools was not entitled, as a matter of law, to a judgment dismissing Roblero’s workers’ compensation claim.

On appeal, Roblero does not argue that the trial court erred in determining that the uninsured-motorist settlement proceeds were subject to Cox Pools’ subrogation rights. Instead, he asserts, the trial court “improperly grouped the ‘credit’ which § 25-5-ll(a) provides for compensation benefits with the ‘subrogation’ allowed against medical expenses.”

In the third-party statute contained in the Act, § 25-5-11, the legislature has set forth the manner in which an employer is to receive credit for the compensation it has paid to an employee when the employee receives proceeds from a third party. The statute reads, in pertinent part:

“If the injured employee, or in case of death, his or her dependents, recovers damages against the other party, the amount of the damages recovered and collected shall be credited upon the liability of the employer for compensation. If the damages recovered and collected are in excess of the compensation payable under this chapter, there shall be no further liability on the employer to pay compensation on account of the injury or death. To the extent of the recovery of damages, against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death. If the employee who recovers damages is receiving or entitled to receive compensation for permanent total disability, then the employer shall be entitled to reimbursement for the amount of compensation theretofore paid, and the employer’s obligation to pay further compensation for permanent total disability shall be suspended for the number of weeks which equals the quotient of the total damage recovery, less the amount of any reimbursement for compensation already paid, divided by the amount of the weekly benefit for permanent total disability which the employee was receiving or to which the employee was entitled. For purposes of this amendatory act, the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee; however, if a judgment in an action brought pursuant to this section is un-collectible in part, the employer’s entitlement to subrogation for such medical and vocational benefits shall be in proportion to the ratio the amount of the judgment collected bears to the total amount of the judgment.”

§ 25-5-ll(a).

In this case, Cox Pools has already paid $47,038 toward Roblero’s medical expenses. Roblero received $30,000 in uninsured-motorist benefits from Penn National. Because the amount Cox Pools has expended on medical benefits on behalf of Roblero already exceeds the total amount Roblero received as a result of his third-party claim, Cox Pools is entitled to subro-gation of the entire amount of those proceeds, as the trial court ordered. See § 25-5-11(a).

Roblero contends that the trial court erred in dismissing his workers’ compensation claim without first ordering Cox Pools to pay its share of the attorney fee Roblero incurred in obtaining the uninsured-motorist settlement, as authorized by § 25 — 5—11(e). Roblero did not assert that argument before the trial court, however; thus, it cannot be raised for the first time on appeal. Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (“Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.”).

We note that, in his response to Cox Pools’ motion for a summary judgment, Roblero asserted that Cox Pools was not entitled to a summary judgment on the issue of subrogation because, he said, “the subrogation and credit provisions of § 25-5-11 [which set forth the circumstances pursuant to which an employer is entitled to credit its compensation liability by the amount of the third-party recovery] do not apply to proceeds paid out under the uninsured-motorist provisions of an insurance policy.” Roblero cited Bunkley v. Bunkley Air Conditioning, Inc., 688 So.2d 827, 830-32 (Ala.Civ.App.1996), in support of his assertion. Roblero has not presented that argument to this court on appeal; therefore, it is waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

In its appellate brief, Cox Pools asks this court to overrule Bunkley, supra. In Bunkley, this court held that the trial court had erred in crediting the amount of uninsured-motorist benefits the employee had received against the future workers’ compensation benefits owed to that employee because the uninsured-motorist benefits were derived from a contract with the employer’s uninsured-motorist carrier and not from third-party wrongdoer. Bunkley, 688 So.2d at 830. The trial court in this case agreed with Cox Pools, stating that it disagreed with the holding in Bunkley and refusing to apply that holding when it determined that Cox Pools was entitled to subrogation of the money Ro-blero had received from Penn National. Because Cox Pools did not receive an adverse ruling, it cannot seek to have Bunkley overruled by this court. Holloway v. Robertson, 500 So.2d 1056, 1059 (Ala.1986). Moreover, we note that, in deciding Bunk-ley, this court applied our supreme court’s holding in State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971). This court and the trial court are bound by the decisions of our supreme court. TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala.Civ.App.2003); and § 12-3-16, Ala.Code 1975. We are not at liberty to overrule or modify those decisions. Thompson v. Wasdin, 655 So.2d 1058 (Ala.Civ.App.1995). Thus, this court declines Cox Pools’ invitation to overrule Bunkley.

For the reasons set forth above, that portion of the judgment dismissing Roble-ro’s workers’ compensation claim is reversed, and the cause is remanded for further proceedings consistent with this opinion. That portion of the judgment determining that the uninsured-motorist settlement proceeds Roblero received were subject to Cox Pools’ subrogation rights is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I concur in the result.

The record indicates that Cox Pools of the Southeast, Inc. (“the employer”), filed a motion for a summary judgment on April 19, 2012, and amended that motion on October 9, 2012. In support of those motions, the employer presented evidence indicating that Samuel Roblero (“the employee”) had received compensable injuries resulting from a May 10, 2010, motor-vehicle accident involving an uninsured motorist, for which the employee had received temporary-total-disability benefits and medical payments from the employer. The employer further presented evidence indicating that the employee was covered by the uninsured-motorist provisions of an insurance policy issued by Penn National Insurance that had been procured by the employer with policy limits of $3,000,000. The employer proved that the employee had settled his uninsured-motorist claim against Penn National for $30,000.

Based on those facts, the employer argued in its original motion for a summary judgment that, under § 25-5-ll(a), Ala. Code 1975, a part of the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975, it was entitled to a “subrogation” credit against its workers’ compensation liability for the money the employee had received from Penn National. In its amended motion, the employer further argued that the employee should not be allowed to recover workers’ compensation benefits because he had received uninsured-motorist benefits from Penn National, its uninsured-motorist insurance carrier, and, thus, any award of workers’ compensation benefits would amount to a double recovery, which, it said, is prohibited by § 25-5-11, Ala.Code 1975.

On October 19, 2012, the employee responded to the motions. The employee did not specifically address the employer’s argument that he should be prevented from recovering workers’ compensation benefits based on his receipt of the uninsured-motorist settlement proceeds. He did, however, maintain that the employer did not have the right to a “subrogation” credit against its workers’ compensation liability for the amount of the uninsured-motorist settlement proceeds, citing Bunkley v. Bunkley Air Conditioning, Inc., 688 So.2d 827 (Ala.Civ.App.1996).

The Mobile Circuit Court (“the trial court”) entered a summary judgment for the employer on October 29, 2012. In that judgment, the trial court found that the employer was entitled to “subrogation rights” as to the uninsured-motorist benefits paid to the employee by Penn National. The trial court further found that the employee

“had an opportunity to be made whole up to the policy limits of $3,000,000. [The employee] accepted $30,000 from the [Penn National] policy as satisfaction for his compensatory and punitive damages. The Workers’ Compensation Act is not intended to allow for double recovery from the same injury by an employee. [The employee] is estopped from obtaining benefits for compensatory and punitive damages from the uninsured motorist policy sponsored by [the employer] and now seeking an additional recovery from [the employer] through the Workers’ Compensation Act.”

The trial court further ordered the clerk of the trial court to dismiss the case with prejudice on October 29, 2012. The employee filed a postjudgment motion on December 7, 2012, and a notice of appeal on December 10, 2012.

Based on our de novo standard of review, see Sartin v. Madden, 955 So.2d 1024 (Ala.Civ.App.2006), we must ascertain whether the employer proved that it was entitled to a dismissal of the employee’s workers’ compensation claim as a matter of law.

In its amended motion for a summary judgment, the employer asserted that the claim should be dismissed because the employee had already recovered uninsured-motorist benefits through a settlement with Penn National. The employer argued that § 25-5-11 is intended to prevent double recovery. See Nuss Lumber Co. v. Estate of Monghan, 91 So.3d 90, 93 (Ala.Civ.App.2012) (“The primary goal of workers’ compensation legislation is to aid the injured employee, not to allow a double recovery.”). The employer contended that the policy behind § 25-5-11 required the trial court to dismiss the workers’ compensation claim in order to prevent the employee from receiving monetary benefits for his injury from two different sources, thereby securing a double recovery.

The employer did not establish its right to a judgment as a matter of law. Section 25-5-11 does not prohibit an employee from recovering monetary benefits for the same injury from two or more different sources. In fact, the plain language of § 25-5-ll(a) specifically affords to employees the right to recover from third parties any and all amounts to which they are legally entitled while “at the same time” recovering workers’ compensation benefits from their employers. Thus, the mere fact that the employee recovered uninsured-motorist benefits in no way prevents the employee from maintaining a claim for workers’ compensation benefits, as the employer contended in its amended summary-judgment motion.

In its judgment, the trial court concluded that the employee should be estopped to claim workers’ compensation. benefits based on his recovery of uninsured-motorist benefits. On appeal, the employer maintains that it would be unfair to allow the employee to settle his claim for uninsured-motorist benefits, without notice to the employer, for $30,000, which equals 1% of the uninsured-motorist-insurance policy limits, thereby impairing its right to avoid the costs of the injury. The employer asserts that we should adopt the estoppel theory used by the trial court in order to avoid that inequity. Although there may be some merit in the contention that employers should be notified and allowed to participate in, or consent to, third-party settlements, see 2 Terry A. Moore, Alabama Workers’ Compensation § 21:87 (1998), the Act does not contain any provision to that effect, and we are not at liberty to judicially engraft one, see generally Ex parte Shelby Cnty. Health Care Auth., 850 So.2d 332 (Ala.2002), particularly a provision that would require forfeiture of workers’ compensation benefits in those circumstances.

Even if we could apply an equitable-estoppel theory, this case does not come to this court in the proper posture to enforce that defense against the employee. In its amended summary-judgment motion, the employer did not argue that the employee should be estopped to recover workers’ compensation benefits based on his decision to accept less than the full policy limits of the uninsured-motorist policy without notifying the employer. The employer presented no evidence regarding the accident, contending only that “the driver of the other vehicle was apparently at fault.” The employer presented no evidence regarding the reasons for the amount of the settlement. The record contains nothing to substantiate the trial court’s finding that the employee “had an opportunity to be made whole up to the policy limits of $8,000,000.” The employer further presented no evidence indicating that it was not notified of the settlement before it was consummated, that it was denied any right to participate in that settlement, or that any of its workers’ compensation credit and subrogation rights were thereby impaired. The employer merely argued that the employee could not recover workers’ compensation benefits because the employee had already recovered uninsured-motorist benefits, which is not legally correct.

Although it is true that the employee did not directly respond to the employer’s argument that the workers’ compensation claim should be dismissed based on the employee’s receipt of uninsured-motorist benefits, that failure does not require affir-mance. A motion for a summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (citing Bass v. SouthTrust Bank of Baldwin Cnty., 538 So.2d 794, 797-98 (Ala.1989)) (emphasis added). The employer may have established certain facts that were undisputed, but the employer never established a prima facie right to a judgment as a matter of law based on those facts; thus, the burden never shifted to the employee to rebut the employer’s showing. Therefore, this court may reverse the summary judgment to the extent that it dismisses the employee’s workers’ compensation claim.

On the other hand, this court must affirm the summary judgment in regard to the trial court’s conclusion that the employer’s § 25-5-11 subrogation and credit rights apply to the uninsured-motorist settlement proceeds. Our supreme court has generally held that an employer cannot credit uninsured-motorist benefits against its workers’ compensation liability, see State Farm Mut. Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971), but some dicta indicates that the general rule may not apply to the proceeds of an uninsured-motorist policy funded by the employer. Watts v. Sentry Ins., 876 So.2d 440, 442 (Ala.2003) (noting, in an aside, that any recovery of uninsured-motorist benefits from an employer’s automobile liability insurer would be “subject to the employer’s right to reimbursement for the compensation paid on account of the employee’s injury”). We need not decide whether Cahoon or Watts applies in the present context, however, because the employee does not argue that the trial court erred in concluding that the employer’s subrogation and credit rights apply to the uninsured-motorist settlement proceeds. Therefore, that legal conclusion, whether right or wrong, is now the law of the case. See Alabama Dep’t of Revenue v. National Peanut Festival Ass’n, 51 So.3d 353, 356 (Ala.Civ.App.2010). As such, any concern that the employee will retain a double recovery should be allayed because, on remand, the employer will be entitled to reduce its workers’ compensation liability by the amount of the uninsured-motorist benefits, subject, of course, to payment of its fair portion of the employee’s attorney’s fees. See § 25-5-ll(e), Ala.Code 1975.

      . Pursuant to Rule 59, Ala. R. Civ. P., the employee had 30 days from the entry of the judgment in which to file his postjudgment motion. The employee filed his postjudgment motion 39 days after entry of the summary judgment; thus, his postjudgment motion came too late and could not be considered by the trial court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James ROSE, Petitioner, v. NORTH AMERICAN VAN LINES, et al., Respondents.
    No. SC07-2432.
    Supreme Court of Florida.
    May 14, 2009.
    Jay M. Levy of Jay M. Levy, P.A., Miami, FL, for Petitioner.
    Jerry K. McKim of Walton, Lantaff, Schroeder, and Carson, LLP, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Rose v. North American Van Lines, 969 So.2d 1165 (Fla. 1st DCA 2007), in which the First District Court of Appeal cited as authority its decision in Flamily v. City of Orlando, 924 So.2d 78 (Fla. 1st DCA 2006), quashed sub nom. Sanders v. City of Orlando, 997 So.2d 1089 (Fla.2008). At the time the First District issued its Rose decision, Flamily was pending review in this Court (having been restyled Sanders v. City of Orlando due to petitioner’s death and the substitution of the personal representative of his estate). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in . this case pending our disposition of Sanders, in which we ultimately quashed the First District’s underlying Flamily decision. See Sanders v. City of Orlando, 997 So.2d 1089 (Fla.2008). We then issued an order directing respondents in the present case to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our Sanders decision. Respondents concede in their response that they have no reason to contest such action by this Court.

We thus grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the First District for reconsideration upon application of this Court’s decision in Sanders.

It is so ordered.

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


author: PARIENTE, J.

text:
    Carlos A. Alejandro ULLOA, et al., Petitioners, v. CMI, INC., Respondent.
    No. SC11-2291.
    Supreme Court of Florida.
    Nov. 7, 2013.
    Rehearing Denied Feb. 25, 2014.

      William R. Ponall of Snure & Ponall, P.A., Winter Park, FL; Andrew L. Cameron of Law Office of Andrew L. Cameron, Orlando, FL; and Jay Rooth of Moses & Rooth, Orlando, FL, for Petitioners.
    Edward G. Guedes and John J. Quick of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, FL, for Respondent.
    Robert Neal Harrison of Robert N. Harrison, P.A., Venice, FL, for Amicus Curiae Florida Association of Criminal Defense Lawyers.
   PARIENTE, J.

The certified conflict presented in this case requires us to consider whether, in a criminal case, subpoenas can be served on an out-of-state corporation’s registered agent in Florida to require that out-of-state, nonparty corporation to produce documents or materials located out-of-state, without utilizing the provisions of chapter 942, Florida Statutes. Chapter 942, the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Uniform Law), provides a statutory process by which parties can subpoena out-of-state, nonparty witnesses. See § 942.06, Fla. Stat. (2010). In this case, after certain Florida criminal defendants were charged with driving under the influence (DUI), they sought the computer source codes of the breathalyzer equipment manufactured by CMI, Inc., a Kentucky-based corporation, by serving CMI’s registered agent in Florida, even though this source code material was not located in Florida.

In CMI, Inc. v. Ulloa, 73 So.3d 787, 791 (Fla. 5th DCA 2011), the Fifth District Court of Appeal held that criminal defendants must follow the procedures set forth in the Uniform Law when requesting this material from out-of-state, nonparty witnesses and that service on CMI’s registered agent was insufficient to compel CMI to produce the source codes. The court then certified conflict between its decision and decisions of the Second District Court of Appeal in CMI, Inc. v. Landrum, 64 So.3d 693 (Fla. 2d DCA 2010), and the Third District Court of Appeal in General Motors Corp. v. State, 357 So.2d 1045 (Fla. 3d DCA 1978).

For the reasons that follow, we conclude that in criminal cases, in order to subpoena documents located in another state that are in the possession of an out-of-state nonparty, the party requesting the documents must utilize the procedures of the Uniform Law, as set forth in chapter 942. While the designation by an out-of-state corporation of a registered agent in Florida has many legal ramifications, as set forth in chapter 607 of the Florida Statutes, that designation does not allow for service of subpoenas on a registered agent to compel production in this state of out-of-state documents belonging to an out-of-state, nonparty corporation in connection with a criminal case, beyond that set forth in the Uniform Law. We reach this conclusion based on our determination that the subpoena power to compel the production of out-of-state documents belonging to out-of-state nonparty witnesses in a criminal case derives from the same source as the power to compel the attendance of out-of-state, nonparty witnesses — the Uniform Law. Accordingly, we disapprove the conflict cases of General Motors and Landrum to the extent that they conflict with our decision, and we approve the Fifth District’s decision below.

FACTS

This case stems from numerous county court cases involving defendants being prosecuted for DUI. Ulloa, 73 So.3d at 788. In each case, the police administered breathalyzer tests to each of the DUI defendants using the Intoxilyzer 8000, a machine manufactured by CMI, a Kentucky-based corporation. Id. The defendants sought to suppress the results of the breathalyzer tests, and to this end, they served a subpoena duces tecum on CMI’s registered agent in Florida, seeking the computer source codes for the software version used in the current Intoxilyzer 8000 instruments. The defendants alleged that the computer source codes would provide information on the accuracy of the machine’s readings. Most of the defendants also sought to have out-of-state CMI employees testify in the Florida criminal proceedings, in addition to requiring CMI to produce the source codes. However, three of the defendants (Alejandro Ulloa, Eric Jackson, and Bradley Leonard) sought only the source codes and did not seek the testimony of out-of-state CMI employees.

As to these three defendants, the subpoena that was issued in Jackson’s DUI case commanded CMI’s custodian of records, in care of NRAI Services, Inc. (CMI’s designated registered agent), to appear at the offices of issuing counsel and to bring with him all source codes for the Intoxilyzer 8000 software, version 8100.27. The second subpoena, issued in Leonard’s DUI case, also commanded CMI’s custodian of records, under penalty of contempt, to produce the source codes. The third subpoena, issued in Ulloa’s DUI case, commanded CMI’s records custodian to appear at the offices of the issuing attorney with the source codes or alternatively to mail or deliver the copies in lieu of appearance. All three subpoenas contained a statement that threatened the records custodian for CMI with contempt of court for failing to produce the materials or failing to appear at the issuing attorneys’ offices with the requested materials.

CMI subsequently filed motions to quash the subpoenas duces tecum, including both those subpoenas that sought to have out-of-state CMI employees testify in the Florida proceedings and produce the source codes and those subpoenas that required CMI only to produce the source codes. In support of its motion, CMI argued that because CMI had no offices, employees, or documents in Florida, the DUI defendants should have been required to follow the procedures of the Uniform Law in order to compel the production of this material. In its motions to quash, CMI raised the following legal arguments: (1) a Florida trial court lacks subpoena power over nonparty witnesses located outside of Florida; (2) in the absence of this subpoena power, a criminal defendant must use the mechanisms afforded by the Uniform Law, a law that was enacted specifically to address a trial court’s lack of extra-territorial subpoena power; (8) Florida’s service of process statutes in chapter 48, Florida Statutes, do not provide for service of a nonparty, out-of-state witness subpoena on an out-of-state corporation’s registered agent; (4) the Legislature intended for the Uniform Law to be interpreted in accordance with jurisprudence from other enacting jurisdictions so as to maintain uniformity in the law; and (5) the Florida Rules of Criminal Procedure do not contemplate the issuance of a discovery subpoena solely for production of documents. The county court denied CMI’s motions to quash.

CMI filed a petition for a writ of certio-rari with the circuit court, challenging the denials of the motions to quash. The circuit court consolidated all of the cases for purposes of appeal, as the cases raised similar legal issues. The court then reviewed the Second District’s decision in Landrum, 64 So.3d at 694-95, which held that the Uniform Law applies to subpoenas that request testimony or that request both testimony and the production of documents, but does not apply to subpoenas served on a registered agent in Florida that request only the production of documents. Accordingly, the circuit court held that, with regard to those cases in' which the DUI defendants requested both the testimony of a witness and the production of documents, the Uniform Law was applicable and the essential requirements of law had not been observed by issding the subpoena duces tecum without following the procedures of the Uniform Law. However, with regard to Ulloa, Jackson, and Leonard, who requested only the production of the source codes, the circuit court held that the Uniform Law did not apply and that the county court correctly applied the law in denying CMI’s motions to quash.

CMI then sought second-tier certiorari review pertaining to the portion of the order that required CMI to produce the source codes in Florida. The Fifth District, after reviewing the applicable statutory law and case law, concluded that the “only way to secure ... out-of-state witnesses or documents in a criminal case is to follow the procedures of the Uniform Law.” Ulloa, 73 So.3d at 790-91. Accordingly, the Fifth District quashed the portion of the circuit court’s order that denied the petition for a writ of certiorari with respect to Ulloa, Jackson, and Leonard, and certified that its decision conflicts with the decisions in Landrum and General Motors. Ulloa, 73 So.3d at 791.

ANALYSIS

At the outset, we note that the defendants have not asserted that they are unable to obtain the materials requested by following the procedures in the Uniform Law. Therefore, we do not address any purported constitutional argument that our interpretation of the Uniform Law in this case in any way interferes with the defendants’ Sixth Amendment right to compulsory process for obtaining witnesses in their defense. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (“[Criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.”). Nor is it necessary for us to determine whether the materials sought in this case would be admissible.

The petitioners also do not claim that the source codes are actually in the possession of the registered agent or otherwise located in Florida. Similarly, CMI does not dispute the petitioners’ right to subpoena evidence from CMI, if the proper procedure is followed. Rather, the issue, distilled to its basics, is the legal validity of a subpoena served on an out-of-state corporation’s registered agent in Florida to obtain documents or materials from a non-party where those items are located out-of-state. The certified conflict presented in this ease, therefore, requires us to determine whether the designation of a registered agent in Florida expands the court’s subpoena power in criminal cases so as to require an out-of-state, nonparty corporation to produce documents or materials in this state that are located outside of the state.

In Landrum, 64 So.3d at 695, the Second District held that because the Uniform Law does not apply to a subpoena duces tecum seeking only the production of documents from the registered agent of an out-of-state, nonparty corporation, the circuit court in that case properly found that CMI was subject to the court’s subpoena power. In Ulloa, 73 So.3d at 790, the Fifth District expressly disagreed, holding that “the subpoena power of a Florida court over a person or legal entity which is not a party in a lawsuit does not extend beyond state lines.”

In order to resolve this conflict, we first address the difference between service of process, personal jurisdiction, and a court’s subpoena power — concepts that are necessary to distinguish and understand before resolving the question before us. Next, we review the provisions of Florida’s Uniform Law and determine whether the procedures of the Uniform Law apply when the subpoena involved is a subpoena duces tecum seeking to have a witness only produce documents, as opposed to one also compelling testimony. Finally, we review the decisions of other states that have adopted the Uniform Law to ensure that our interpretation is consistent with those of other states. After analyzing the above, we conclude that the procedures of the Uniform Law apply even when the subpoena involved is a subpoena duces tecum seeking to have a witness only produce documents.

I. Difference Between Service of Process, Personal Jurisdiction, and Subpoena Power

In Landrum, the Second District held that the defendant could serve a subpoena duces tecum seeking only the production of documents on an out-of-state, nonparty corporation because that corporation “has a registered agent in Florida and ... does business in Florida by selling its In-toxilyzer 8000 to law enforcement agencies.” Landrum, 64 So.3d at 694. CMI contends that the reasoning of the Second District conflates the concepts of personal jurisdiction and a court’s subpoena power. Further, CMI argues that at the heart of this matter is a question relating to fundamental principles of federalism and comity: “[W]hether a Florida trial court may lawfully, through use of a litigant’s witness subpoena duces tecum, reach into a sister state and command that a corporate resident of that state deliver ... valuable corporate assets into Florida for use in ongoing criminal proceedings to which the corporate witness is not a party.”

We begin by first reviewing service of process and the various statutes that the defendants assert authorize the issuance of a subpoena duces tecum for documents located outside of this state by serving the subpoena on the out-of-state corporation’s registered agent. Section 48.091(1), Florida Statutes (2010), requires that every foreign corporation that transacts business in Florida “shall designate a registered agent and registered office in accordance with chapter 607.” In addition, section 48.081(3)(a) permits that “process may be served on the agent designated by the corporation under s. 48.091.” § 48.081(3)(a), Fla. Stat. (2010); see also § 48.181(2), Fla. Stat. (2010) (“If a foreign corporation has a resident agent or officer in the state, process shall be served on the resident agent or officer.”). Pursuant to section 607.15101(1), Florida Statutes (2010), “[t]he registered agent of a foreign corporation authorized to transact business in this state is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation.”

These provisions, however, are directed only to service of process, simply requiring an out-of-state corporation doing business in this state to have a designated person or entity authorized to accept the delivery of a summons, complaint, subpoena, notice, or other legal notification on behalf of the corporation. This case does not involve a defect in service of process.

Service of process is a different but related legal concept from personal jurisdiction. In Borden v. East-European Insurance Co., 921 So.2d 587 (Fla.2006), this Court articulated the differences between service of process and personal jurisdiction as follows:

Under Florida law, service of process and personal jurisdiction are two distinct but related concepts. Both are necessary before a defendant, either an individual or business entity, may be compelled to answer a claim brought in a court of law. Personal jurisdiction refers to whether the actions of an individual or business entity as set forth in the applicable statutes permit the court to exercise jurisdiction in a lawsuit brought against the individual or business entity in this state. See generally § 48.193; White v. Pepsico, Inc., 568 So.2d 886 (Fla.1990); Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989) (stating that in order to subject a defendant to personal jurisdiction, “due process requires that the defendant have certain minimum contacts with the forum”). Service of process is the means of notifying a party of a legal claim and, when accomplished, enables the court to exercise jurisdiction over the defendant and proceed to judgment. See Shurman v. Atlantic Mortg. & Inv. Corp., 795 So.2d 952, 953 (Fla.2001) (“It is well settled that the fundamental purpose of service [of process] is ‘to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy.’ ”) (quoting State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940)). Personal jurisdiction over a nonresident of the state is circumscribed by constitutional considerations of minimum contacts as stated in the seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny.

Id. at 591-92 (footnote omitted).

This case clearly does not involve personal jurisdiction because CMI is not a party to the action. Moreover, the provisions of chapter 48, related to service of process, do not address the limitations of a court’s subpoena power and whether the subpoena itself is valid.

We agree with the Fifth District’s reasoning on this point:

Designating an agent for service of process subjects a foreign corporation to the jurisdiction of the Florida court to adjudicate its rights and obligations in a legal dispute. See generally § 48.091, Fla. Stat. (2010). The registered agent has a limited role, and is not a corporate employee or custodian of corporate records. CMI is not involved in a legal dispute. Even if CMI is subject to the personal jurisdiction of Florida courts under the long-arm statute, this does not mean that CMI is required to respond to a subpoena to appear and/or to produce documents in a Florida court in a criminal case in which it is not a party. Unlike personal jurisdiction over a foreign corporation registered and doing business within the State of Florida, the subpoena power of a Florida court over a person or legal entity which is not a party in a lawsuit does not extend beyond state lines. See § 914.001(1), Fla. Stat. (2010). The long-arm statute does not extend the subpoena power of a Florida court to command the in-state attendance of a non-resident, non-party person or entity, or compel that person or entity to produce documents.

Ulloa, 73 So.3d at 790 (footnote omitted). As the Fifth District further observed, “even if CMI is doing business in another state and has a registered agent, it does not mean that it is located within that state and subject to a criminal court’s contempt power for failing to respond to a subpoena duces tecum from that state.” Id. at 791. We conclude that, standing alone, chapter 48 does not address or extend the court’s subpoena power in a criminal proceeding to require an out-of-state, nonparty corporation to produce documents that are also located out-of-state. Thus, we must turn to the statutory authority that addresses the issuance of subpoenas for witnesses and documents in criminal cases.

II. Florida’s Uniform Law and the Authority to Subpoena Out-of-State, Nonparty Witnesses in Criminal Proceedings

We next address various statutory provisions pertaining to the issuance of subpoenas and the limits on a trial court’s subpoena power over documents and materials belonging to an out-of-state, non-party witness that are located outside of the state. Pursuant to section 914.001(1), Florida Statutes (2010), a subpoena for a witness in a criminal case “shall run throughout the state and be directed to all of the sheriffs of the state.” (Emphasis added.) Nothing within this provision extends a court’s subpoena power beyond the state boundaries. See Harrell v. State, 709 So.2d 1364, 1369 (Fla.1998) (recognizing the limits of the subpoena power of Florida courts).

For the issuance of subpoenas to witnesses located outside of the state, Florida’s Uniform Law sets forth the requirements for obtaining the testimony of an out-of-state witness in a criminal case. The Uniform Law provides a mechanism by which states can provide for reciprocal agreements, whereby the sister state courts will act cooperatively to ensure that materials and necessary witnesses in criminal proceedings can be compelled to testify in another state.

The purpose of the Uniform Law was explained by the Ünited States Supreme Court in a case involving Florida’s Uniform Law as follows:

The primary purpose of this Act is not eleemosynary. It serves a self-protective function for each of the enacting States. By enacting this law the Florida Legislature authorized and enabled Florida courts to employ the procedures of other jurisdictions for the obtaining of witnesses needed in criminal proceedings in Florida. Today forty-two States and Puerto Rico may facilitate criminal proceedings, otherwise impeded by the unavailability of material witnesses, by utilizing the machinery of this reciprocal legislation to obtain such witnesses from without their boundaries. This is not a merely altruistic, disinterested enactment.

New York v. O’Neill, 359 U.S. 1, 9, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). The Uniform Law has now been adopted by all fifty states. See Harrell, 709 So.2d at 1369 n. 5. As recently explained by the Georgia Supreme Court:

The Uniform Act to Secure the Attendance of Witnesses from Without the State in- Criminal Proceedings, approved by the National Conference of Commissioners on Uniform State Laws in 1931 and amended in 1936, “is intended to provide a means for state courts to compel the attendance of out-of-state witnesses at criminal proceedings.” Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena Duces Tecum, 7 A.L.R.4th 836, § 1. Relying on the principles of comity in the absence of unilateral power to compel the appearance of a witness located out of state, the Uniform Act has been enacted by all fifty states. Stud-nicki and Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law, 76 St. John’s L.Rev. 483, 532 (2002); Wasserman, The Subpoena Power: Pennoyer's Last Vestige, 74 Minn. L.Rev. 37, 88 (1989).

Yeary v. State, 289 Ga. 394, 711 S.E.2d 694, 696 (2011).

Specifically, section 942.03 of Florida’s Uniform Law provides the authority for a witness from another state to be summoned to testify in this state. Pursuant to section 942.03(1), in order to summon an out-of-state witness to appear and testify in a criminal prosecution or grand jury proceeding in this state, the Florida judge must issue a certificate under the seal of the court and assert that the out-of-state individual is a “material witness” in a pending Florida prosecution. § 942.03(1), Fla. Stat. (2010). The judge must also specify the number of days that the witness will be required to appear in Florida. Id. This certificate then must be presented to a judge in the county and state in which the witness is found. Id.

As this is a reciprocal law, section 942.02 provides the procedures for a Florida court to follow if it receives a certifícate from a sister state that an individual located in Florida is needed to testify in another state and, likewise, what a sister state would do if it receives a certificate from a Florida court. If a Florida judge receives a certificate from a sister state court asserting that a person in Florida is a material witness in that state, the Florida judge must set a time and place for a hearing in Florida and direct the witness to appear for such a hearing. § 942.02(1), Fla. Stat. (2010). The witness is entitled to counsel for this hearing. Id. The Florida judge will then determine whether the witness is indeed material and necessary in that sister state and will also determine whether the witness will suffer undue hardship if compelled to appear and testify in the sister state. § 942.02(2), Fla. Stat. (2010). If the Florida judge determines that the witness is material and necessary and that no hardship would occur by requiring the witness to travel to another state to testify, the Florida judge will issue a summons to the Florida witness, directing the witness to appear and testify in that sister state court. Id. Further, the Florida judge can recommend that the witness be taken into custody and delivered to an officer of the requesting state to ensure the witness’s attendance. See § 942.02(3), Fla. Stat. (2010). If the witness fails to attend as ordered, the Florida court is authorized to sanction the witness. § -942.02(4), Fla. Stat. (2010).

A review of the Uniform Law as a whole shows that in order for a Florida court to require the attendance of an out-of-state witness to appear to testify in a Florida criminal proceeding, the Florida court cannot actually compel the out-of-state witness to take any action and cannot impose sanctions against the out-of-state witness for failing to obey. Instead, under section 942.03(1), the Florida court merely issues a certificate to the sister state court where the witness is located, so that the sister state can make certain findings and issue a summons to the witness who is appearing before that court. The sister state court then has the authority to impose sanctions if the witness does not comply. In other words, the same process that takes place in Florida when a Florida court receives a certificate from a sister state would then take place in that other state.

Accordingly, this process requires two courts to work together, with both courts finding that the witness in question is material and necessary. The witness also has an opportunity to be heard, and the sister state can ensure that the witness endures no undue hardship. This process guarantees that both sovereign states are coordinating their efforts, that the witness has the opportunity to be heard by his or her own state court, and that the witness does not need to travel to another state unless his or her own state’s court has also determined that he or she is material and necessary to the case.

Finally, section 942.05 provides as follows:

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law-of the states which enact it, and shall be only applicable to such state as shall enact reciprocal powers to this state relative to the matter of securing attendance of witnesses as herein provided.

§ 942.05, Fla. Stat. (2010). In other words, the very concept of the Uniform Law is that it requires states to act cooperatively in securing the attendance of out-of-state witnesses. A complete understanding of this statutory scheme further supports the conclusion that the Legislature intended parties to use only the Uniform Law to subpoena witnesses that are located out-of-state, rather than permitting litigants to circumvent the law by utilizing the registered agent for service of process.

While the Uniform Law clearly applies to subpoenas requiring an out-of-state witness to testify, the legal question in this case is specifically whether the procedures of the Uniform Law apply when the subpoena involved is a subpoena duces tecum seeking to compel a witness to only produce documents or materials, as opposed to also compelling testimony. Black’s Law Dictionary defines the verb “subpoena” as “[t]o order the production of (documents or other things) by subpoena duces tecum” and defines a “subpoena duces tecum” as a “subpoena ordering the witness to appear in court and to bring specified documents, records, or things.” Black’s Law Dictionary 1568 (9th ed. 2009). In other words, requiring the presence of a witness to produce the documents is part of the issuance of a subpoena. The subpoena is therefore the mechanism that authorizes the production of witnesses or documents from nonparties.

Determining that the Uniform Law applies to both witnesses and documents is consistent with the way that the majority of other states interpret the Uniform Law. This Court has recognized that in interpreting “a statute modeled after a uniform law, ‘it is pertinent to resort to the holdings in other jurisdictions where the act is in force.’ ” State v. Mancuso, 652 So.2d 370, 371 (Fla.1995) (quoting Valentine v. Hayes, 102 Fla. 157, 135 So. 538, 540 (1931)).

The majority of courts have held that under the Uniform Law, a court can request the issuance of a subpoena duces tecum in conjunction with the appearance of a person and can require the person to produce documents or materials. See, e.g., Ex parte Simmons, 668 So.2d 901, 903 (Ala.Crim.App.1995); Application of Grand Jury of State of New York, 8 Mass.App.Ct. 760, 397 N.E.2d 686, 691 (1979); In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842, 846 (App.Div.1954); In re Bick, 82 Misc.2d 1043, 372 N.Y.S.2d 447, 449 (N.Y.Sup.Ct.1975); State v. Harman, 165 W.Va. 494, 270 S.E.2d 146, 153-54 (1980). As thoroughly explained by the Nevada Supreme Court:

The issue arises because the Uniform Act speaks in terms of an out-of-state witness receiving a “summons”.... A minority of courts have read the reference to “requiring the appearance of a witness” as limiting “subpoena” to subpoenas for testimony not documents, reasoning that, had the Legislature intended to include subpoenas duces te-cum, it would have drafted the statute to include them....
On the other hand, courts that construe the Uniform Act liberally, which represent the majority view, have concluded that it is reasonable to afford protection to reach documents as well as witnesses, reasoning that the term “subpoena” can include documents. See, e.g., Application of Grand Jury of State of N.Y., 8 Mass.App.Ct. 760, 397 N.E.2d 686, 689 (1979) (reasoning that the meaning of the term “ ‘subpoena’ ... certainly ha[s] no relation whatever to process [but that] [c]ustom and tradition have, however, made the words synonymous with process of a certain kind” and that it would be irrational to conclude that the term excludes either subpoena duces tecum or subpoena ad testifican-dum); In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842, 846 (App.Div.1954) (“In view of ... the fact that the uniform act was enacted in aid of comity between states to assist the orderly and effectual administration of justice and prosecution of criminal conduct, we conclude that the Legislature ... was aware of the case law holding the term ‘subpoena’ to embrace ‘subpoena duces tecum’ ” and had it intended to exclude such subpoenas' from the act, it would have done so.)
Remaining in line with the majority of jurisdictions, we reiterate that Nevada’s Uniform Act extends to subpoenas duces tecum. Like the appeals court of Massachusetts, we are convinced that the term “subpoena,” as used in NRS 174.405(2), includes subpoenas duces tecum. While NRS 174.425 sets forth the procedures by which a citizen of Nevada can “summon” a witness from another jurisdiction to testify in a criminal proceeding, NRS 174.405(2) defines “summons” as including a “subpoena, order or other notice requiring the appearance of a witness.” (Emphasis added.) Because the ordinary meaning of “subpoena” includes both a subpoena ad testificandum and a subpoena duces tecum, see Black’s Law Dictionary 1467 (8th ed. 2004), we determine, as indicated in [Atlantic Commercial v. Boyles, 103 Nev. 35, 732 P.2d 1360 (1987), abrogated on other grounds by Executive Management v. Ticor Title Insurance Co., 118 Nev. 46, 38 P.3d 872 (2002)] that it is reasonable to extend NRS 174.425(1) to requests for material out-of-state books and records that have an ancillary request for the appearance of a witness.

Wyman v. State, 125 Nev. 592, 217 P.3d 572, 580-81 (2009) (footnote omitted). The Georgia Supreme Court more recently reached the same conclusion, holding that its Uniform Act applied to both witnesses and documents in the possession of witnesses. See Yeary, 711 S.E.2d at 696.

In turning to Florida and its enactment of the Uniform Law, chapter 942 does not limit a subpoena to only a subpoena ad testificandum requiring a witness to testify. In fact, it defines “summons” as including “a subpoena, order, or other notice requiring the appearance of a witness.” § 942.01(3), Fla. Stat. (2010). As Black’s Law Dictionary makes clear, the ordinary meaning of the noun “subpoena” includes both a subpoena ad testificandum and a subpoena duces tecum and applies to any “writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black’s Law Dictionary 1563 (9th ed. 2009).

Based on the above, we hold that the procedures of the Uniform Law apply even when the subpoena involved is a subpoena duces tecum seeking a witness to only produce documents. This holding is consistent with the common usage of the term “subpoena” and with the interpretation of other states, which this Court considers when interpreting a statute modeled after a uniform law. It is also consistent with the meaning of the terms provided, in chapter 942.

Accordingly, we conclude that parties must follow the procedures of the Uniform Law when seeking to obtain documents located out-of-state from an out-of-state, nonparty witness through a subpoena duces tecum, as well when seeking testimony or seeking both testimony and documents. Further, we note that if this Court were to hold that the Uniform Law did not apply to subpoenas directed to out-of-state witnesses possessing requested documents, there would be no other statutory or legal authority for a trial court to compel the production of documents from an out-of-state, nonparty witness. Our interpretation is thus consistent with the purpose of the Uniform Law to “facilitate criminal proceedings ... by utilizing the machinery of this reciprocal legislation to obtain” witnesses outside of the state’s boundaries. O’Neill, 359 U.S. at 9, 79 S.Ct. 564.

III. Application of the Uniform Law to This Case

In this case, the three subpoenas at issue were served on CMI’s registered agent in Florida and were directed to CMI’s records custodian, a person not located within the state of Florida, commanding the records custodian to appear personally in Florida at the attorneys’ offices or to produce all the source codes for the Intoxilyzer 8000 software, version 8100.27. The subpoenas also threatened the records custodian with contempt of court for that out-of-state witness’s failure to comply.

By limiting the subpoenas to apply solely to the production of these out-of-state materials belonging to an out-of-state, non-party corporate witness, the defendants attempted to circumvent the application of the Uniform Law and its threshold requirement of materiality by serving the subpoena on the corporate nonparty’s registered agent. Yet, the subpoena undeniably required the nonparty corporation to produce documents and materials that were located out-of-state through its records custodian, who was also located out-of-state. In other words, neither the documents nor the records custodian are located in Florida, and the defendants do not contend otherwise. Thus, as subpoenas issued in this state run only throughout the state, see § 914.001(1), Fla. Stat. (2010), the Fifth District properly quashed the portion of the circuit court’s order that denied CMI’s petition for a writ of certio-rari, since there was no authority for the subpoenas without utilizing the procedures of the Uniform Law.

CONCLUSION

In sum, we conclude that the issuance of the three subpoenas at issue in this case lacked any statutory authority to require the out-of-state records custodian to comply because the criminal defendants did not first follow the procedures required by the Uniform Law. As explained herein, the provisions of chapter 607 governing registered agents cannot be invoked to obtain documents from a nonparty corporation, where the corporation and the requested documents or materials are located out-of-state. Further, pursuant to section 914.001(1), the authority to issue subpoenas to nonparty witnesses extends only to witnesses or documents located in this state. Lastly, the protections of the Uniform Law cannot be circumvented by the issuance of a subpoena duces tecum. Rather, the requirements of that law apply with equal force to subpoenas directed to witnesses required to testify, as well as witnesses required to only produce documents.

Accordingly, we approve the Fifth District’s decision in Ulloa and disapprove the cases of General Motors and Landrum to the extent that they are inconsistent with our decision.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . Nothing in the record shows that CMI has offices, employees, or documents in Florida. CMI admits in its brief filed in this Court that if it did have an employee in Florida, that employee could be personally served in Florida. Of course, this acknowledgment does not answer the question before us regarding how a criminal defendant can obtain out-of-state documents and materials from an out-of-state, nonparty corporation. Likewise, such a statement does not impact whether a subpoena properly served on an employee of a corporation would provide proper authority to require that corporation to produce out-of-state documents or material that has never been located in this state, which is not an issue before this Court.

      . In addition, we stress that there is absolutely no indication in the record that CMI ever possessed the materials in Florida or that CMI was trying to evade the proper exercise of jurisdiction by the Florida courts.

      . We disagree, however, with the Georgia Supreme Court’s apparent approval of the reasoning in the Second District's decision in Landrum that the presence of a registered agent would allow the documents to be produced by service on the registered agent. See Yeary, 711 S.E.2d at 697-98.

      . For that reason, we do not address the constitutional implications raised by CMI if this Court were to have held that the subpoena power of the trial courts extends to compel corporate witnesses not located in Florida to testify or produce documents or materials in criminal cases where those witnesses are not a party.

      . In General Motors, it is unclear whether General Motors was actually the subject of the investigation, which raises concerns not present in this case. The Third District stated, "A subpoena duces tecum issued by a Court, consequently, reaches all documents under the control of the party required to produce them, even if those documents are located outside the territorial jurisdiction of the court." Gen. Motors Corp., 357 So.2d at 1047 (emphasis added). To the extent that the facts of General Motors could be materially different if General Motors were the subject of a criminal investigation, the same considerations may not apply.


text:
    Annamarie RIETHMILLER, Petitioner, v. William RIETHMILLER, Respondent.
    No. SC12-1183.
    Supreme Court of Florida.
    Dec. 5, 2013.
    Rehearing Denied Feb. 21, 2014.
    Annamarie Riethmiller, pro se, Braden-ton, FL, for Petitioner.
   PER CURIAM.

This case is before the Court on the petition of Annamarie Riethmiller for a writ of mandamus. We previously denied the petition and retained jurisdiction to pursue sanctions against Riethmiller. Due to her numerous meritless and inappropriate filings in this Court pertaining to her dissolution of marriage proceedings in the Circuit Court of the Twelfth Judicial Circuit, in and for Manatee County, Riethmil-ler was directed to show cause why she should not be barred from filing in this Court any future pro se pleadings, motions, or other requests for relief. Rieth-miller has filed a response to the order to show cause.

After considering Riethmiller’s response, we conclude that it fails to show cause why she should not be sanctioned. Riethmiller has compiled a history of pro se filings in this Court that were devoid of merit or inappropriate for review. Her filings, in part, also reveal a pattern of instituting proceedings and then failing to properly pursue them.

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Annamarie Riethmiller pertaining to her dissolution of marriage proceedings in the Circuit Court of the Twelfth Judicial Circuit, in and for Manatee County (case number 2009-DR-10430), unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Riethmiller’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . Since 2010, Petitioner Riethmiller has initiated numerous proceedings in this Court pertaining to her divorce proceedings in the Circuit Court of the Twelfth Judicial Circuit, in and for Manatee County, Florida. See Riethmiller v. Riethmiller, 2012 WL 1859725 (Fla. May 15, 2012) (table) (mandamus petition dismissed); Riethmiller v. Riethmiller, 77 So.3d 1255 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 69 So.3d 278 (Fla.2011) (table) (prohibition petition denied); Riethmiller v. Riethmiller, 67 So.3d 200 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 67 So.3d 200 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 67 So.3d 200 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 67 So.3d 200 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 67 So.3d 200 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 67 So.3d 200 (Fla.2011) (table) (mandamus petition denied); Riethmiller v. Fabisiak, 64 So.3d 118 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 60 So.3d 388 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 60 So.3d 388 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 57 So.3d 847 (Fla.2011) (table) (review dismissed); Riethmiller v. Riethmiller, 48 So.3d 837 (Fla.2010) (table) (review dismissed).

        . See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (stating that a court must first provide notice and an opportunity to respond before sanctioning a litigant and prohibiting litigant from future pro se filings).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing the scarce judicial resources of this Court. See, e.g., McCutcheon v. State, 117 So.3d 769 (Fla.2013); James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008).


text:
    In re AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.110.
    No. SC13-2386.
    Supreme Court of Florida.
    Feb. 20, 2014.
    Eduardo I. Sanchez, Chair, Appellate Court Rules Committee, Miami, FL; John F. Harkness, Jr., Executive Director, and Heather S. Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Appellate Court Rules Committee (Committee) has filed an out-of-cycle report asking the Court to clarify the language of Florida Rule of Appellate Procedure 9.110(n) (Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases; Exception; Appeal of Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction, see art. V, § 2(a), Fla. Const., and clarify the language of the rule, as reflected in the appendix to this opinion.

This clarification is necessary because amendments to rule 9.110(n) that were made in In re Amendments to Florida Rule of Appellate Procedure 9.110, 84 So.3d 224, 225 (Fla.2012) (No. SC11-2372), were inadvertently omitted from the rule as amended in our opinion in case number SC11-399. See In re Amends. to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro. & Fla. Family Law Rules of Pro.-Electronic Filing, 102 So.3d 451, 481 (Fla.2012).

Accordingly, we clarify Florida Rule of Appellate Procedure 9.110(n), as reflected in the appendix to this opinion. Language that was inadvertently omitted from the rule in Case No. SC11-399 is underscored. Language that was inadvertently included in the rule is struck through. The clarified language is effective, nunc pro tunc, March 1, 2012, the date the amendments in Case No. SC11-2372 became effective.

It is so ordered.

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

APPENDIX

RULE 9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES

(a)-(m) [No Change]

(n) Exception; Appeal of Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy. If an unmarried minor or another person on her behalf appeals an order dismissing a petition for judicial waiver of parental notice of termination of pregnancy, the clerk of the lower tribunal shall prepare and electronically transmit the record as described in rule 9.200(d) within 2 days from the filing of the notice of appeal. The district court of appeal shall render its decision on the appeal as expeditiously as possible and no later than 10 days from the filing- of the notice -of appea!7 days from the transmittal of the record. Briefs or oral argument may be ordered at the discretion of the district court of appeal. The minor may move for leave to file a brief and may request oral argument. If no decision is rendered within the foregoing time period, the order shall be deemed reversed, the petition shall be deemed granted, and the clerk shall place a certificate to this effect in the file and provide the minor with a certified copy of the certificate. The appeal and all proceedings thereon shall be confidential so that the minor shall remain anonymous. The file shall remain sealed unless otherwise ordered by the court. Should the dismissal of the petition be reversed on appeal, the clerk shall furnish the petitioner with a certified copy of the decision or the clerk’s certificate for delivery to the minor’s physician. No filing fee shall be required for any part of an appeal of the dismissal of a petition for a waiver of parental notice of termination of pregnancy-

Committee Notes

[No Change]

Court Commentary

[No Change]


text:
    In re AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.470.
    No. SC13-2231.
    Supreme Court of Florida.
    Feb. 20, 2014.

      Thomas H. Bateman, III, Chair, Civil Procedure Rules Committee, Tallahassee, FL; John F. Harkness, Jr., Executive Director and Ellen H. Sloyer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

Before the Court are out-of-cycle amendments to Florida Rule of Civil Procedure 1.470 (Exceptions Unnecessary; Jury Instructions). The Board of Governors of The Florida Bar approved the proposed amendments by a vote of thirty-four to zero. We have jurisdiction, see art. V, § 2(a), Fla. Const., and amend the rule as proposed.

The Civil Procedure Rules Committee (Committee) proposed the amendments to rule 1.470 in response to the Court’s direction in In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d 284, 288 (Fla.2013), that “[a]ll references to the Florida Standard Jury Instructions and Standard Jury Instructions as set forth in Rule 1.470(b), Florida Rules of Civil Procedure, shall also include these Standard Jury Instructions — Contract and Business Cases.” The amendments correct the Court’s web address for the Standard Jury Instructions contained in subdivision (b) of the rule and add a new committee note to reference the new Standard Jury Instructions for Contract and Business Cases.

Accordingly, we amend the Florida Rules of Civil Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee note is offered for explanation only and is not adopted as an official part of the rules. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

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

APPENDIX

RULE 1.470. EXCEPTIONS UNNECESSARY; JURY INSTRUCTIONS

(a) [No Change]

(b) Instructions to Jury. The Florida Standard Jury Instructions appearing on the court’s website at www.floridasupreme court.org/jury_instructions/instructions.

shtml shall be used by the trial judges of this state in instructing the jury in civil actions to the extent that the Standard Jury Instructions are applicable, unless the trial judge determines that an applicable Standard Jury Instruction is erroneous or inadequate. If the trial judge modifies a Standard Jury Instruction or gives such other instruction as the judge determines necessary to accurately and sufficiently instruct the jury, upon timely objection to the instruction, the trial judge shall state on the record or in a separate order the legal basis for varying from the Standard Jury Instruction. Similarly, in all circumstances in which the notes accompanying the Florida Standard Jury Instructions contain a recommendation that a certain type of instruction not be given, the trial judge shall follow the recommendation unless the judge determines that the giving of such an instruction is necessary to accurately and sufficiently instruct the jury, in which event the judge shall give such instruction as the judge deems appropriate and necessary. If the trial judge does not follow such a recommendation of the Florida Standard Jury Instructions, upon timely objection to the instruction, the trial judge shall state on the record or in a separate order the legal basis of the determination that such instruction is necessary. Not later than at the close of the evidence, the parties shall file written requests that the court instruct the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the instructions to be given. At such conference, all objections shall be made and ruled upon and the court shall inform counsel of such instructions as it will give. No party may assign as error the giving of any instruction unless that party objects thereto at such time, or the failure to give any instruction unless that party requested the same. The court shall orally instruct the jury before or after the arguments of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. The court shall provide each juror with a written set of the instructions for his or her use in deliberations. The court shall file a copy of such instructions.

(c) [No Change]

Committee Notes

1988 Amendment — 2010 Amendment. [No Change]

2014 Amendment. Florida Standard Jury Instructions include the Florida Standard Jury Instructions — Contract and Business Cases.

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


text:
    R.J. REYNOLDS TOBACCO COMPANY, Petitioner, v. Melba SHERMAN, etc., Respondent.
    No. SC12-437.
    Supreme Court of Florida.
    Feb. 27, 2014.
    Gordon James III and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale, FL; Gregory G. Katsas and Charles R.A. Morse of Jones Day, Washington, DC, for Petitioner.
    Robert S. Glazier of Law Office of Robert S. Glazier, Miami, Florida; Adam Trop of Trop <& Ameen, P.A., Hollywood, FL; Gary M. Paige of Law Office of Gary M. Paige, Coral Gables, FL; and Alex Alvarez of The Alvarez Law Firm, Coral Gables, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in R.J. Reynolds Tobacco Co. v. Sherman, 79 So.3d 887 (Fla. 4th DCA 2012), a per curiam affirmance citing to R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011), because we accepted jurisdiction in Brown based on express and direct conflict. We have since discharged jurisdiction in Brown. Therefore, there is no basis to exercise jurisdiction in this case. Accordingly, we hereby discharge jurisdiction and dismiss review.

No motion for rehearing will be entertained by the Court. See Fla. R.App. P. 9.330(d)(2).

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


text:
    R.J. REYNOLDS TOBACCO COMPANY, Petitioner, v. Jimmie Lee BROWN, etc., Respondent.
    No. SC11-2201.
    Supreme Court of Florida.
    Feb. 27, 2014.
    Gordon James III and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale, FL; Gregory G. Katsas of Jones Day, Washington, DC; Stephanie E. Parker and John M. Walker of Jones Day, Atlanta, GA; and Christine Davis Graves of Carlton Fields, Tallahassee, FL, for Petitioner.
    Philip M. Gerson and Edward Schwartz of Gerson & Schwartz, P.A., Miami, FL; and Edward Zebersky of Zebersky & Payne, LLP, Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss this review proceeding.

No motion for rehearing will be entertained by the Court. See Fla. R.App. P. 9.330(d)(2).

It is so ordered.

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


author: ROWE, J. CLARK, J.,

text:
    Chad Douglas RUSHING, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3709.
    District Court of Appeal of Florida, First District.
    June 21, 2010.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

Appellant was charged with attempted first-degree murder, but was found guilty by the jury of the lesser included offense of attempted second-degree murder. Appellant challenges his conviction due to the trial court’s use of Standard Jury Instruction (Criminal) 6.6 to instruct on the lesser included offense of attempted voluntary manslaughter. The instruction on attempted voluntary manslaughter was read to the jury without objection from either party. The appellant argues that the trial court’s use of this standard instruction was fundamental error requiring reversal of his conviction for attempted second degree murder. We agree and reverse.

In Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, State v. Montgomery, 39 So.3d 252 (Fla.2010), we held that the trial court’s instruction on the lesser included offense of manslaughter by act was fundamental, reversible error because Standard Jury Instruction 7.7 erroneously included the element of an intent to kill in the offense of manslaughter by act. In its approval of this court’s decision, the Florida Supreme Court concluded that the language of Standard Jury Instruction 7.7, which included the element of intent to kill for a lesser included offense of manslaughter, constituted fundamental error in Montgomery’s case.

This court has relied on our holding in Montgomery to reverse a number of convictions where the erroneous jury instruction on the lesser included offense of manslaughter was given. See, e.g., Stinson v. State, 69 So.3d 291 (Fla. 1st DCA 2009); Hardee v. State, 69 So.3d 292 (Fla. 1st DCA 2009); Ward v. State, 12 So.3d 920 (Fla. 1st DCA 2009). We have also held that the standard jury instruction for the lesser included offense of attempted manslaughter by act suffers from the same infirmities as the instruction in Montgomery. See Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009).

We have limited our consistent application of Montgomery in only two respects. In Rozzelle v. State, 29 So.3d 1141 (Fla. 1st DCA 2009), we held that Montgomery does not apply retroactively to cases that were final before the decision was issued. Here, Mr. Rushing’s case was not final before Montgomery was issued. We distinguished Montgomery in Rivera v. State, 29 So.3d 1139 (Fla. 1st DCA 2009), where the jury was given the erroneous jury instruction on the lesser included offense of manslaughter, but the defendant was actually convicted of the lesser included offense of manslaughter. There, we upheld the manslaughter conviction because even if the jury erroneously believed proof of intent to kill was an element of the offense, it nevertheless, returned a conviction for manslaughter.

The dissent asserts that the instruction in this case was either not fundamental error or it was waived because defense counsel failed to object to the jury instruction and read the instruction in his closing argument. Although the dissent properly cites Ray v. State, 403 So.2d 956, 960 (Fla.1981), for the proposition that “it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so,” the conditions required for finding no fundamental error and applying the two-part test set forth in that case are not present here.

A necessary prerequisite to applying Ray is a finding that the defendant was actually convicted of the erroneous lesser included charge. Here, Mr. Rushing was convicted of attempted second-degree murder, not the erroneous lesser included charge for attempted voluntary manslaughter. Because the jury may have incorrectly believed it was required to find the element of intent to kill in order to convict Mr. Rushing of attempted voluntary manslaughter, and instead convicted Mr. Rushing of attempted second-degree murder, which has no such element of intent, the jury instruction suffers from the very same infirmities as the instruction in Montgomery. Because the trial court gave the standard jury instruction for attempted voluntary manslaughter, Mr. Rushing’s conviction for attempted second-degree murder is reversed, and the case is remanded for new trial. State v. Montgomery, 39 So.3d 252 (Fla. 2010).

REVERSED AND REMANDED.

MARSTILLER, J., concurs; CLARK, J., dissents with opinion.

CLARK, J.,

dissenting.

I would affirm the appellant’s conviction because this case is distinguishable from State v. Montgomery, 39 So.3d 252 (Fla.2010) and so does not present fundamental error. While the Florida Supreme Court held that the trial court’s use of the standard jury instruction for the lesser-included offense of manslaughter constituted fundamental error in that case, the Montgomery opinion did not prohibit, or even discourage, case-by-case analysis for fundamental error where convictions are challenged on the basis of an erroneous jury instruction for a lesser included offense. Fundamental error is a rare exception to the contemporaneous objection requirement for jury instructions. Fla.R.Crim.P. 3.890(d). This court’s discretion concerning fundamental error is to be exercised “very guardedly” and “only in rare cases.” Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009). The Florida Supreme Court has not receded from the long-standing definition of fundamental error as “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.” Anderson v. State, 841 So.2d 390, 403 (Fla.2003).

In the case before us, the defendant not only agreed at the charging conference to the use of the standard instruction, but counsel took the additional affirmative step of reading the instruction into his closing argument. Thus, counsel used the instruction as part of his defense strategy in seeking an acquittal for his client, but now complains that the trial court’s reading of this instruction was fundamental error. Under these facts, the instruction was erroneous, but was not fundamental error. See Nesbitt v. State, 889 So.2d 801 (Fla.2004); Ray v. State, 403 So.2d 956 (Fla.1981).

In both Ray and Nesbitt, the convictions for erroneously instructed lesser included offenses were not obtained via any fundamental error in the trial court’s instruction to the jury. It follows that error in an instruction for a lesser included offense for which the defendant is not convicted is even less fundamental an error. If the jury finds that the elements of the main offense were not proved, and that the (erroneously described) elements of a lesser included offense were also not proved, the jury’s authority to find a defendant “not guilty’ is still fully in force. Even if a defendant is deprived of the dubious opportunity to be found guilty of the lesser included offense, the jury retains the power to find the defendant not guilty of the charges.

Counsel should not be encouraged to agree to a standard instruction at trial, even if such instruction was questionable, in order to preserve the opportunity to later assert fundamental error on appeal. See Calloway v. State, 37 So.3d 891 (Fla. 1st DCA 2010). Encouragement of such tactics is clearly not the purpose of the fundamental error exception, which is to be applied “only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Nesbitt v. State, 889 So.2d at 803.


author: ROWE, J.

text:
    Curtis W. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6346.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

The appellant, Curtis Bailey, was charged with five counts of attempted first-degree murder with a firearm. The jury was instructed, without objection, in accord with the standard jury instructions on attempted first-degree murder and the lesser-included offenses of attempted second-degree murder and attempted voluntary manslaughter. The jury found Bailey guilty on two counts of attempted first-degree murder, as charged, and guilty on three counts of the lesser-included offense of attempted second-degree murder. Mr. Bailey argues on appeal that his three convictions for attempted second-degree murder are fundamentally erroneous because the jury instruction on the lesser-included offense of attempted voluntary manslaughter included the same defect held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010). We agree and reverse Bailey’s three convictions for attempted second-degree murder. We, however, affirm without discussion the two convictions for attempted first-degree murder.

The trial court instructed the jury on the lesser-included offenses as follows:

To prove the crime of [attempted] second-degree murder, the State must prove the following two elements beyond a reasonable doubt:
Curtis William Bailey intentionally committed an act which would have resulted in the death of [the victims named in Counts I through V] except that someone prevented Curtis William Bailey from killing ... or he failed to do so.
To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt:
Curtis William Bailey committed an act which was intended to cause the death of [the victims named in Counts I through V]....

As instructed, if the jury found no intent to kill, it may have believed it was required to find Bailey guilty of the offense of attempted second-degree murder, as opposed to attempted voluntary manslaughter. Thus, the instruction here was fundamental error, as in Montgomery.

Under the authority of this court’s well-established precedent, we reverse Bailey’s convictions for attempted second-degree murder and remand for a new trial on those charges. See Herring v. State, 43 So.3d 823 (Fla. 1st DCA 2010); Rushing v. State, 133 So.3d 943 (Fla. 1st DCA 2010); Sharpe v. State, 39 So.3d 342 (Fla. 1st DCA 2010); Horne v. State, 23 So.3d 834 (Fla. 1st DCA 2009); Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009).

Affirmed in part and reversed in part.

WEBSTER and MARSTILLER, JJ„ concur.


author: SUAREZ, J. SUAREZ, J.

text:
    Otis J. McDUFFIE, Appellant/Petitioner, v. John W. URIBE, M.D., Appellee/Respondent.
    Nos. 3D10-2895, 3D12-1542, 3D12-1760.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.
    Rehearing Denied March 12, 2014.
    Russomanno & Borrello, and Herman J. Russomanno, Robert J. Borrello and Herman J. Russomanno, III, Miami; Ratzan Law Group and Stuart N. Ratzan, Miami; Podhurst Orseck and Joel D. Eaton, Miami; Howard S. Weinberg, for appellant/petitioner.
    Carlton Fields and Wendy F. Lumish and Alina Alonso Rodriguez, Cristina Alon-so and David L. Luck; Linda Kelly Kear-son, General Counsel, Eleventh Judicial Circuit Court, for appellee/respondent.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   SUAREZ, J.

Otis J. McDuffie appeals the grant of a motion for new trial and petitions for a writ of prohibition to restrain the trial judge from presiding on the case and to quash the order granting a new trial. We affirm the order below granting a new trial and deny the petition for writ of prohibition.

After a malpractice jury verdict in favor of the appellant, Otis J. McDuffie, the trial judge, granted a motion for new trial on grounds of improper use of a textbook during direct and cross examination at trial, improper inference concerning the use of steroids and improper comments in closing argument. An appeal was taken from the trial court’s order. This Court relinquished jurisdiction to the trial court for entry of an order specifying the particular grounds that served as a basis for the trial court’s order granting a new trial. See Fla. R. Civ. P. 1.530(f). In compliance, the trial court filed an order granting new trial and stated the court’s grounds supporting the grant of a new trial. McDuffie filed a petition for writ of prohibition to prohibit the trial judge from presiding over the case and to quash the new trial order filed in compliance with Florida Rule of Civil Procedure 1.530(f). The parties filed a second set of briefs, and oral argument was rescheduled.

After this Court’s consideration of all of the issues presented on appeal, we conclude the complained of errors cumulatively rose to the level where they permeated the entire trial and were fundamental so as to deprive the appellee, Dr. Uribe, of a fair trial. We therefore do not find that the trial judge abused his discretion by ordering a new trial. Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998). Accordingly, we affirm the order below and remand for a new trial. See § 90.706, Florida Statutes (2011); Linn v. Fossum, 946 So.2d 1032 (Fla.2006), and cases cited at 1039; Griffith v. Shamrock Vill., 94 So.2d 854 (Fla.1957); City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011); Phillip Morris, Inc. v. Janoff, 901 So.2d 141 (Fla. 3d DCA 2004); Cedars Med. Ctr., Inc. v. Ravelo, 738 So.2d 362 (Fla. 3d DCA 1999); Kaas v. Atlas Chem. Co., 623 So.2d 525 (Fla. 3d DCA 1993); Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981).

Affirmed; petition for writ of prohibition denied.

ON MOTION FOR REHEARING

Before SUAREZ, ROTHENBERG and EMAS, JJ.

SUAREZ, J.

The appellant’s motion for rehearing is denied without prejudice to raise the issue of prejudgment interest should an appeal be taken from the retrial of this matter.

      . Upon remand, a new trial shall be conducted on liability and damages. See InteliStaf Healthcare, Inc. v. Gervato, 91 So.3d 267 (Fla. 1st DCA 2012).