source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Juan Carlos CHAVEZ, Appellant, v. STATE of Florida, Appellee.
    No. SC14-35.
    Supreme Court of Florida.
    Jan. 31, 2014.

      Robert A. Norgard and Andrea M. Nor-gard of Norgard and Norgard, Bartow, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Scott A. Browne, Senior Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Juan Carlos Chavez, a prisoner under sentence of death, appeals from the denial of his second successive motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Art. V, § 8(b)(1), Fla. Const. Chavez filed the action after Governor Rick Scott signed a death warrant on January 2, 2014. For the reasons discussed below, we affirm.

BACKGROUND

Chavez was convicted of the first-degree murder, kidnapping, and sexual battery of nine-year-old Samuel James (“Jimmy”) Ryce and was sentenced to death in accordance with a unanimous jury recommendation. Chavez v. State, 12 So.3d 199, 203 (Fla.), cert. denied, 558 U.S. 996, 130 S.Ct. 501, 175 L.Ed.2d 356 (2009). Chavez confessed that on the afternoon of September 11,1995, he abducted the child at gunpoint from a school bus stop in rural Miami-Dade County and sexually assaulted the child before fatally shooting him. Id. In 2002, this Court upheld the convictions and sentences on direct appeal. Id. Chavez subsequently filed an initial postconviction motion pursuant to rule 3.851. After relief was denied by the circuit court, Chavez appealed the denial and filed a petition for writ of habeas corpus with this Court. Id. This Court upheld the denial of postconviction relief and denied the habeas petition. Id. at 203.

Chavez next filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Florida. Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1059 (11th Cir.2011), cert. denied, _ U.S. _, 132 S.Ct. 1018, 181 L.Ed.2d 752 (2012). Chavez recognized that the petition was filed outside of the one-year statute of limitations period provided by 28 U.S.C. § 2244(d) for seeking federal habeas relief, but sought equitable tolling of the statute of limitations. Id. The federal district court dismissed Chavez’s habeas petition, concluding that even if all allegations in the petition were true, Chavez would still not be entitled to enough equitable tolling to bring the filing within the statute of limitations period. Id. The United States Court of Appeals for the Eleventh Circuit affirmed the dismissal. Id. at 1073.

On April 16, 2012, Chavez filed a successive motion for postconviction relief. Chavez first asserted that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in light of the decision of the federal district court in Evans v. McNeil, 2011 WL 9717450 (S.D.Fla. June 20, 2011), aff'd in part and rev’d in part, 699 F.3d 1249 (11th Cir.2012), cert. denied, _ U.S. _, 133 S.Ct. 2393, 185 L.Ed.2d 1105 (2013). Second, Chavez contended that he was entitled to relief in state court pursuant to Martinez v. Ryan, _ U.S. _, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The circuit court denied relief, and this Court affirmed the denial in a brief order. See Chavez v. State, 2013 WL 5629607 (Fla. Oct. 11, 2013) (table).

After Governor Scott signed the warrant in this case, Chavez filed numerous public records requests. On January 9, 2014, Chavez filed a second successive motion for postconviction relief, which presented three claims. First, Chavez requested that the circuit court stay the execution while he pursues his claims in federal court pursuant to Martinez. Second, Chavez challenged the constitutionality of lethal injection in Florida. Lastly, Chavez contended that he was denied due process during the clemency proceedings. Chavez requested an evidentiary hearing on the lethal injection and clemency claims.

After a Huff hearing, the circuit court entered an order that summarily denied all claims and rejected Chavez’s request for a stay. The circuit court also entered orders denying Chavez’s requests for public records filed pursuant to Florida Rule of Criminal Procedure 3.852(i) from the Florida Department of Corrections (DOC), the Florida Department of Law Enforcement (FDLE), the Office of the Medical Examiner for the Eighth District, and the Florida Parole Commission and its Office of Executive Clemency.

This appeal followed.

ANALYSIS

We have reviewed each of Chavez’s claims in detail. With the exception of the request for a stay, the claims are virtually identical to those presented in Muhammad v. State, 132 So.3d 176, 2013 WL 6869010 (Fla.2013), cert. denied, _ U.S. _, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014). Accordingly, our analysis with regard to the public records, lethal injection, and clemency claims is controlled by Muhammad.

Public Records Requests

This Court reviews denials of public records requests under the abuse of discretion standard. Pardo v. State, 108 So.3d 558, 565 (Fla.), cert. denied, _ U.S. _, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012). A circuit court may order the production of public records under Florida Rule of Criminal Procedure 3.852(i) only upon finding that:

(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional records request is not overly broad or unduly burdensome.

Fla. R.Crim. P. 3.852(i)(2). Further, a defendant bears the burden of demonstrating that the records sought relate to a color-able claim for postconviction relief. Mann v. State, 112 So.3d 1158, 1163 (Fla.2013).

DOC and FDLE — Chavez requested that the FDLE produce execution logs and notes created by the FDLE agents who observed eleven prior executions. He requested that the DOC produce: (1) records relating to the decision to use midazo-lam hydrochloride in executions and the decision to retain the three-drug protocol; (2) records relating to consultations with experts about midazolam hydrochloride before the current lethal injection protocol was issued; (3) records identifying the manufacturer and distributor of the drugs used in the lethal injection protocol; (4) checklists and notes prepared by DOC personnel with regard to the executions of twelve inmates; and (5) a list of witnesses to the execution of one inmate.

With the exception of the execution witness list, the records sought by Chavez were previously requested by Askari Abdullah Muhammad during his warrant proceedings. We held that the rule 3.852(i) records requests were not related to a colorable claim. See Muhammad, 132 So.3d at 203; see also Walton v. State, 3 So.3d 1000, 1014 (Fla.2009) (holding that the “production of [records related to lethal injection] is unlikely to lead to a color-able claim for relief because the challenge to the constitutionality of lethal injection as currently administered in Florida has been fully considered and rejected by the Court”). Because we previously held in Muhammad that the circuit court did not abuse its discretion when it denied the DOC and FDLE records requests, we hold that no abuse of discretion occurred here.

Medical Examiner—Chavez sought from the Office of the Medical Examiner for the Eighth District the autopsy records of William Happ and Darius Kimbrough. In Muhammad, the defendant sought only the autopsy records for William Happ; however, the requests are otherwise the same. We held that the circuit court did not abuse its discretion in denying the rule 3.852(i) records requests because “Muhammad has not explained how autopsy photographs and reports concerning Happ could disclose at what point Happ was rendered unconscious or whether he experienced pain by virtue of the alleged inefficacy of midazolam hydrochloride.” 132 So.3d at 203. The bases for which Chavez seeks the autopsy records similarly would not establish when the inmates became unconscious or whether they experienced pain during their executions. Therefore, we conclude pursuant to Muhammad that the circuit court properly denied these records requests.

Florida Parole Commission/Office of Executive Clemency — Finally, Chavez relies upon section 14.28, Florida Statutes, to contend that he is entitled to “non-investigatory” clemency documents from the Florida Parole Commission and its Office of Executive Clemency. That statute provides: “All records developed or received by any state entity pursuant to a Board of Executive Clemency investigation shall be confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” § 14.28, Fla. Stat. (2013) (emphasis supplied). However, Rule 16 of the Florida Rules of Executive Clemency provides:

Due to the nature of the information presented to the Clemency Board, all records and documents generated and gathered in the clemency process as set forth in the Rules of Executive Clemency are confidential and shall not be made available for inspection to any person except members of the Clemency Board and their staff. Only the Governor, and no other member of the Clemency Board, nor any other state entity that may be in the possession of Clemency Board materials, has the discretion to allow such records and documents to be inspected or copied. Access to such materials, as approved by the Governor, does not constitute a waiver of confidentiality.

(Emphasis supplied.) This Court has stated that “[n]o aspect of clemency powers exist[s] by virtue of a legislative enactment, and none could. These powers are ‘derived’ solely from the Constitution.” Parole Comm’n v. Lockett, 620 So.2d 153, 157 (Fla.1993) (quoting In re Advisory Op. to the Governor, In re Admin. Procedure Act, Exec. Clemency, 334 So.2d 561, 562 (Fla.1976) (footnote omitted)). Thus, to the extent section 14.28 could be read to exclude certain clemency materials from confidentiality, Rule of Executive Clemency 16, which provides that all records in the clemency process are confidential, controls pursuant to Lockett.

Therefore, as in Muhammad, the circuit court properly denied the records requests to the Florida Parole Commission and its Office of Executive Clemency.

Lethal Injection

In Muhammad, we held that the use of midazolam hydrochloride as the first drug in the lethal injection protocol did not violate the Eighth Amendment. Muhammad, 132 So.3d at 188, 197. We also considered and rejected the contentions that: (1) movements by Happ during his execution establish that Happ was conscious and experienced pain; (2) FDLE agent Felt-gen failed to fulfill his role as a monitor pursuant to the lethal injection protocol; and (3) Florida is constitutionally required to change its three-drug protocol to a one-drug protocol. See id. at 196-97.

Chavez contends that despite our detailed ruling in Muhammad, we should remand for an evidentiary hearing so that he may offer additional evidence to that which was presented in Muhammad. We reject this claim. Summary denial of a lethal injection challenge is proper where the asserted reasons for holding an eviden-tiary hearing are based upon conjecture or speculation. See generally Foster v. State, 132 So.3d 40 (Fla.2013). Chavez has failed to proffer any witnesses or evidence that he would present during an evidentiary hearing. Thus, the assertion by Chavez that he could establish the unconstitutionality of Florida’s lethal injection protocol is completely speculative. We conclude that his request for an evidentiary hearing was properly denied, and we affirm the denial of this claim pursuant to Muhammad.

Clemency

Chavez next challenges the sufficiency of the clemency proceedings that were held. This claim is without merit. The warrant signed by Governor Scott provides that “executive clemency for JUAN CARLOS CHAVEZ, as authorized by Article IV, Section 8(a), Florida Constitution, was considered pursuant to the Rules of Executive Clemency and it has been determined that executive clemency is not appropriate.” This Court has repeatedly held in denying challenges to clemency that such proceedings are within the exclusive purview of the executive branch and will not be second-guessed by the judicial branch. See, e.g., Carroll v. State, 114 So.3d 883, 888-89 (Fla.), cert. denied, _ U.S. _, 133 S.Ct. 2762, 186 L.Ed.2d 213 (2013) (rejecting a challenge where the defendant admitted “a clemency proceeding was held, and challenge[d] only the sufficiency of it”); Marek v. State, 8 So.3d 1123, 1129-30 (Fla.2009) (rejecting claim that Florida’s clemency process “is one-sided, arbitrary, and standardless”).

Chavez does not dispute that a clemency proceeding was held. Instead, he expresses displeasure with the sufficiency of the proceeding. In Muhammad, this Court rejected a similar claim by an inmate that the clemency process was flawed and amounted to a denial of due process. 132 So.3d at 199 (“Muhammad’s allegations do not support a claim that the circumstances surrounding his clemency denied him minimal due process”). We conclude that Chavez’s allegations also do not support a claim that he was denied minimal due process during the clemency proceedings, or that in his case clemency was merely a formality. See generally Johnston v. State, 27 So.3d 11, 25 (Fla.2010) (noting that “no specific procedures are mandated in the clemency process”).

We affirm the summary denial of this claim in accordance with Muhammad.

Motion for Stay

Finally, Chavez requests a stay of execution to allow him to pursue relief in the federal courts pursuant to Martinez. The Supreme Court in Martinez held

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”

132 S.Ct. at 1320. Chavez contends that a stay is warranted because Martinez entitles him to consideration of his claims in federal court, even though the district court previously dismissed his habeas petition as untimely and the Eleventh Circuit affirmed that dismissal.

A stay of execution pending the disposition of a successive motion for post-conviction relief is warranted only when there are “substantial grounds upon which relief might be granted.” Buenoano v. State, 708 So.2d 941, 951 (Fla.1998) (citing Bowersox v. Williams, 517 U.S. 345, 116 S.Ct. 1312, 134 L.Ed.2d 494 (1996)). Based upon this precedent, and the fact that the Eleventh Circuit recently held that Martinez is inapplicable to the situation where a federal habeas petition was not filed within the time limit mandated by 28 U.S.C. § 2244(d), we conclude that a stay is not warranted. See Arthur v. Thomas, 739 F.3d 611, 627-28 (11th Cir. 2014). Further, to the extent Chavez claims that he is not challenging the prior dismissal of his initial federal habeas petition as time-barred, but instead is seeking to initiate a new petition alleging ineffective assistance, we conclude that he has not justified the issuance of a stay. Accordingly, we deny the request for a stay and hold that the trial court properly denied a stay of execution as well.

CONCLUSION

For the reasons expressed above, we affirm the order of the circuit court summarily denying the second successive post-conviction motion and the circuit court orders denying the records requests. The request for a stay of execution is denied. No rehearing will be entertained by this Court, and the mandate shall issue immediately.

It is so ordered.

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

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . We further conclude that disclosure of the witness list from a prior execution would not lead to a colorable claim and, therefore, the circuit court properly denied this portion of the records request as well.

      . Chavez also requested the autopsy records for Askari Abdullah Muhammad, but an autopsy was not performed on the body.

      . Further, we note that participation in the clemency process by individuals, as required by the Florida Constitution and the law, does not waive the confidentiality of clemency documents. See art. IV, § 8(a), Fla. Const.


author: WRIGHT, WILLIAM L., Associate Judge.

text:
    Wendy G. SMITH, Appellant, v. TIME CUSTOMER SERVICES and Travelers, Appellees.
    No. 1D12-2398.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.

      Bradley Guy Smith of Smith, Feddeler, Smith, P.A., Lakeland, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    David K. Beach and Nicolette E. Tsam-bis of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.
   WRIGHT, WILLIAM L., Associate Judge.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred by entering summary final judgment in favor of the Employer/Carrier (E/C) because a genuine issue of material fact remained unresolved as to Claimant’s petition for benefits (PFB) of March 7, 2012, and the JCC erred in denying Claimant’s claims for penalties, interest, costs, and attorney’s fees. Because we reverse and remand the order on appeal based upon Claimant’s first issue alone, we reverse and remand the associated denial of penalties, interest, costs, and attorney’s fees.

Background

Claimant worked as a printer operator for the Employer; this job required repetitive lifting of boxes in and out of a printing machine, which, over time, resulted in injury to Claimant’s lumbar spine. Claimant’s accident and injury were accepted by the E/C as compensable, and the E/C authorized medical care for Claimant’s injuries. On October 19, 2010, Dr. George Sidhom, Claimant’s authorized physician, prescribed an “orthopedic mattress” for Claimant’s lumbar spine condition. Dr. Sidhom issued a second prescription on the same date for a “sleep number ilO mattress and base,” also for Claimant’s lumbar spine condition.

On January 26, 2011, Claimant filed a PFB seeking authorization of the “orthopedic mattress” as prescribed by Dr. Si-dhom in October 2010. On March 8, 2011, the parties entered into a mediation settlement agreement wherein the E/C agreed to provide an “orthopedic mattress” per Dr. Sidhom’s prescription.

On April 18, 2011, Claimant filed a PFB seeking the “sleep number ilO mattress and base” as prescribed by Dr. Sidhom in October 2010. A final merit hearing was held on May 25, 2011, relative to a claim for permanent total disability (PTD) benefits. At this hearing, Claimant requested that the JCC reserve adjudication on the petition for the “sleep number ilO mattress and base,” asserting that, because no mediation had been held on the petition, it was not procedurally ripe at that time. In June 2011, the JCC entered an order awarding PTD benefits and reserving adjudication on the claim for the “sleep number ilO mattress and base.” This order was appealed by the E/C. See Travelers Ins. v. Smith, 79 So.3d 26 (Fla. 1st DCA 2012) (1D11-3394). Because none of the issues relating to Claimant’s April 2011 petition were resolved in mediation (held July 12, 2011), final hearing was scheduled for November 2, 2011.

On November 1, 2011, Claimant filed a Notice of Voluntary Dismissal as to her April 18, 2011, claim for the “sleep number ilO mattress and base” on the basis that the E/C had again agreed to authorize an orthopedic mattress recommended by Dr. Sidhom. As a result of the dismissal of the April 2011 PFB, the November 2, 2011, hearing was cancelled. On February 13, 2012, this court affirmed the June 2011 order, which awarded PTD benefits and reserved adjudication on the April 2011 PFB for a sleep number mattress and base. See Smith, 79 So.3d at 26.

On February 21, 2012, Dr. Sidhom again prescribed a “sleep number ilO mattress and base” for Claimant’s lumbar spine condition. On March 7, 2012, Claimant filed another PFB, seeking the “sleep number ilO mattress and base” prescribed by Dr. Sidhom in February 2012.

On March 22, 2012, the E/C filed a Motion for Summary Final Order seeking dismissal with prejudice of Claimant’s March 7, 2012, PFB requesting authorization of a “sleep number ilO mattress and base,” alleging that it was barred by the res judicata doctrine because Claimant had filed several petitions seeking the same orthopedic mattress.

In her objection to the E/C’s Motion for Summary Final Order, Claimant stated that summary final order was not appropriate because the case involved issues of fact regarding both medical testimony and the specific type of mattress sought, and Claimant now sought authorization of a new benefit based on a new prescription. On April 9, 2012, the JCC entered an order granting summary final order, dismissing with prejudice Claimant’s March 7, 2012, petition, from which Claimant appeals.

Analysis

A ruling on a motion for summary judgment is reviewed de novo. Thomas v. Eckerd Drugs, 987 So.2d 1262, 1263 (Fla. 1st DCA 2008) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). It is well settled that, when reviewing a lower court’s summary judgment ruling, an appellate court must draw all reasonable inferences in favor of the party opposing summary judgment. See, e.g., Auto-Owners Ins. Co. v. Young, 978 So.2d 850 (Fla. 1st DCA 2008). Summary judgment should not be granted unless, all reasonable inferences in favor of the non-moving party having been drawn, the facts are so crystallized that nothing remains but questions of law. See Spears v. Albertson’s, Inc., 848 So.2d 1176 (Fla. 1st DCA 2003). If, in contrast, the evidence is conflicting, and will permit different reasonable inferences, or tends to prove the issues, it should be submitted to the trier of fact. See Aberdeen at Ormond Beach, L.P., 760 So.2d at 130; Schneider v. City of Jacksonville, 933 So.2d 601, 602 (Fla. 1st DCA 2006).

This court has explained that summary final orders are permitted where res judicata bars the claim:

Florida Administrative Code Rule 60Q-6.120(1) permits a JCC to enter a summary final order when the order would be dispositive of the issues raised by the petition, and there are no genuine issues of material fact. See id.; Begley’s Cleaning Serv. v. Costa, 913 So.2d 1244, 1245 (Fla. 1st DCA 2005). A JCC shall review the pleadings and depositions, together with affidavits, if any, to determine whether there are any genuine issues of material fact. See Fla. Admin. Code R. 60Q-6.120(2); Costa, 913 So.2d at 1245. Issues considered dispositive, in relevant part, include whether the claim is barred by res judicata. See Fla. Admin. Code R. 60Q-6.120(1); Costa, 913 So.2d at 1245.

Thomas, 987 So.2d at 1263. “The general principle behind the doctrine of res judica-ta is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable, as well as every actually litigated, issue.” Gordon v. Gordon, 59 So.2d 40 (Fla.1952). The piecemeal nature of workers’ compensation does not preclude application of res judicata. Boynton Landscape v. Dickinson, 752 So.2d 1236, 1237 (Fla. 1st DCA 2000) (“As a general rule, piecemeal litigation of mature claims is no more permissible in workers’ compensation cases than in civil litigation. If a merits hearing occurs and mature claims are not litigated, the claims are considered waived, and later litigation is precluded by application of the doctrine of res judicata.”). However, this principle only applies when the elements of res judi-cata are present and the doctrine properly applied. Caron v. Systematic Air Servs., 576 So.2d 372, 375 (Fla. 1st DCA 1991) (quoting Albrecht v. State, 444 So.2d 8 (Fla.1984)).

Several conditions must occur simultaneously if a matter is to be made res judicata: identity of the thing sued for; identity of the cause of action; identity of parties; and identity of the quality in the person for or against whom the claim is made. Gordon, 59 So.2d at 40. Thus, where the second suit is upon the same cause of action and between the same parties as the first, res judicata applies. Id. The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions. Id. Where several claims due at different times arise out of the same transaction, a judgment as to one or more of such claims will not bar a subsequent action on claims becoming due thereafter. Id.

Here, because there was no adjudication of Claimant’s entitlement to a “sleep number ilO mattress and base,” much less an adjudication regarding her entitlement to whatever benefit was prescribed by Dr. Sidhom in February 2012, the doctrine of res judicata should not have been applied in a summary manner. This case involves a 2012 claim for a medical benefit based upon Dr. Sidhom’s February 21, 2012, prescription, a new claim based on a new prescription, issued after the 2011 voluntary dismissal. Further, although the E/C alleged it timely provided the requested “orthopedic mattress” sought in Claimant’s first PFB, what is now at issue was Claimant’s entitlement to a “sleep number ilO mattress and base,” potentially a different benefit from the one agreed to by the E/C. Viewing this evidence in a light most favorable to Claimant, the benefit was in fact different, and given the E/C’s contention that the benefit was the same, the facts were not so crystallized as to present only an issue of law; entry of a summary final order is thus precluded. Accordingly, the JCC erred as a matter of law by granting summary judgment on this issue. The JCC’s order dismissing the claim with prejudice should be reversed, and the case remanded for the JCC to conduct additional evidentiary proceedings.

REVERSED and REMANDED.

BENTON, C.J., and ROBERTS, J„ concur.


author: WALLACE, Judge.

text:
    Francisco RANGEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-835.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2013.
    Rehearing Denied Jan. 30, 2014.

      Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Upon consideration of the Appellant’s motion for rehearing filed April 15, 2013, it is

ORDERED that the Appellant’s motion for rehearing is granted. This court’s opinion dated April 3, 2013, is withdrawn, and the attached opinion is substituted therefor.

Francisco Rangel was charged in the court below in a fourteen-count indictment. The trial court severed counts one and two for trial. A jury found Mr. Rangel guilty on count one of the indictment for the second-degree murder of Michael Longo-ria while possessing and discharging a firearm. The jury also found Mr. Rangel guilty on count two of the indictment for the attempted second-degree murder of Vidal Quijada while possessing and discharging a firearm. The trial court adjudged Mr. Rangel to be guilty of both offenses and sentenced him to life imprisonment on count one with a twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year minimum. The sentences were designated to run consecutively. Mr. Rangel has appealed his judgment and sentences on counts one and two of the indictment.

Mr. Rangel argues that the trial court committed fundamental error in three of the instructions given to the jury. We find merit only in Mr. Rangel’s argument concerning the jury instruction on the lesser-included offense of attempted manslaughter on count two relating to the victim, Vidal Quijada.

I. THE INSTRUCTION ON MANSLAUGHTER BY ACT

With regard to count one involving the victim, Michael Longoria, Mr. Rangel argues that the lesser-included offense instruction on manslaughter by act was fundamentally erroneous because it instructed the jury that it could find Mr. Rangel guilty of the lesser-included offense of manslaughter if the State proved that

1. Michael Longoria is dead.
2. Francisco Rangel committed an act, which was intended to cause the death of Michael Longoria.

We find no error, fundamental or otherwise, because the instruction did not contain the language Mr. Rangel describes. Instead, paragraph 2 of the instruction informed the jury that it had to find that “Francisco Rangel’s act(s) caused the death of Michael Longoria.” The instruction further informed the jury that “[i]n order to convict .of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death.” This instruction was not erroneous. See State v. Montgomery, 39 So.3d 252, 259-60 (Fla.2010) (“[T]he intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of the -victim.”). We also note that the -written instructions provided to the jury were identical to the oral instructions issued by the trial judge. Accordingly, we affirm Mr. Rangel’s judgment and sentence for the second-degree murder of Michael Longoria.

II. THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT

With regard to count two relating to Vidal Quijada, the trial court instructed the jury that to find Mr. Rangel guilty of the lesser-included offense of attempted manslaughter, the State was required to prove that “Francisco Rangel committed an act, which was intended to cause the death of Vidal Quijada and would have resulted in the death of Vidal Quijada except that someone prevented Francisco Rangel from killing Vidal Quijada or he failed to do so.” The Supreme Court of Florida has declared that the issuance of an almost identical instruction constituted fundamental error in Williams v. State, 123 So.3d 23, 27 (Fla.2013) (“[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.”). Accordingly, we reverse Mr. Rangel’s judgment and sentence for the attempted murder of Vidal Quijada and remand for a new trial on this count only.

III. THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE

Mr. Rangel argues that the jury instruction on justifiable use of deadly force was fundamentally erroneous. The trial court’s instruction to the jury on this issue included the following language:

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery.

(Emphasis added.) However section 776.013, Florida Statutes (2010), provides:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(Emphasis added.) Although the standard jury instruction follows the statutory language, it sets off the phrase “including deadly force” with an additional comma. This court found the use of this language to constitute fundamental error under the circumstances presented in Talley v. State, 106 So.3d 1015 (Fla. 2d DCA 2013). The Talley court explained its reasoning as follows:

[T]he erroneous comma eliminated Talley’s sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mul-lendore threatened him with deadly force. Even if Mullendore attacked Talley with nondeadly force, Talley would have the duty to retreat according to this erroneous instruction.

Id. at 1017. However, the instruction at issue in Talley was Florida Standard Jury Instruction (Criminal) 3.6(g), “Justifiable Use of Non-Deadly Force,” which is the standard self-defense instruction. Id. “Talley’s only defense was that the alleged victim, John Mullendore, had attacked him with nondeadly force and thus Talley was justified in using nondeadly force in self defense.” Id. at 1016. Accordingly, the Talley court held that the instruction given in that case was erroneous because “the justifiable use of nondeadly force was Talley’s only defense and any confusion caused by the instruction may have deprived Talley of a fair trial because his defense was plausible.” Id. at 1018 (emphasis added). The Talley court also noted that the State’s reliance on the erroneous instruction in its closing argument supported the conclusion that the error was fundamental. Id. at 1017.

Although the jury instruction on justifiable use of deadly force, Florida Standard Jury Instruction (Criminal) 3.6(f), also contains the errant comma that caused the problem in Talley, none of the conditions leading to the conclusion that the instruction was fundamentally erroneous in Talley are present here. The first and most obvious difference is that, unlike in Talley, Mr. Rangel requested, and the trial court instructed the jury on, the justifiable use of deadly force, not “nondeadly” force. The facts in this case did not warrant an instruction on nondeadly force because Mr. Rangel unquestionably used deadly force — he shot both victims with a firearm. Therefore, the Talley court’s concern that the erroneous placement of the comma had the potential to vitiate Talley’s sole defense by causing the jury to think that Talley had no right to defend himself with any force at all unless he was being threatened with deadly force is not present here. Furthermore, because Mr. Rangel’s sole defense was the justifiable use of deadly force, the prosecutor’s comment in closing that “the evidence ... did not support a finding that when Mr. Rangel fired those shots, he was in imminent danger of death or great bodily harm,” was a proper comment on the evidence. See Merck v. State, 975 So.2d 1054, 1061 (Fla.2007) (“Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.”).

For these reasons, we conclude that even though Florida Jury Instruction (Criminal) 3.6(f) contains the same errant comma found in Instruction 3.6(g), the error in this instruction is neither fundamental nor harmful where, as in this case, the defendant’s sole defense at trial is the justifiable use of deadly force.

IV. CONCLUSION

There was no error with respect to the jury instruction on manslaughter or the jury instruction on justifiable use of deadly force. However, because the lesser-included offense of attempted manslaughter was one step removed from the primary charge upon which the jury found Mr. Rangel guilty, the instruction on that charge constituted fundamental error. Williams, 123 So.3d at 27. Accordingly, we reverse Mr. Rangel’s judgment and sentence on count two of the indictment for the attempted second-degree murder of Vidal Quijada and remand for a new trial on that count only. In all other respects, we affirm Mr. Rangel’s judgments and sentences.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, JJ., Concur.

      . After Mr. Rangel was sentenced on counts one and two, he entered negotiated pleas to counts three through fourteen of the indictment. The trial court sentenced him to life in prison on six of the counts, fifteen years on five of the counts, and five years on the remaining counts. The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts. All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two. The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal.

      . On April 3, 2013, this court affirmed Mr. Rangel's judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion. In a motion for rehearing, Mr. Rangel’s appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief. Generally, we will not consider new arguments made on rehearing that a party has not advanced initially. However, we exercise our discretion to consider Mr. Rangel's new arguments on rehearing to avoid further appellate filings and to limit the waste of judicial resources. If we simply denied Mr. Rangel’s motion for rehearing, then a petition for ineffective assistance of appellate counsel would inevitably follow, and the clerk would assign another panel to review the matter. See Banek v. State, 75 So.3d 762, 765 (Fla. 2d DCA 2011) (concluding that Banek’s appellate counsel rendered ineffective assistance by failing "to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction”); Pierce v. State, 121 So.3d 1091 (Fla. 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jury instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim).

      . Again, the trial court’s oral instruction was identical to the written instruction.


text:
    Natalie GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2694.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We grant appellate counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Review of the entire record on appeal and this brief demonstrates the absence of any issues of arguable merit which could be advanced in good conscience on appellant’s behalf. However, we note that the record on appeal does not include a written order revoking Green’s probation in the 2008 case and stating which conditions she violated. A written order is required. See Amador v. State, 80 So.3d 1130 (Fla. 4th DCA 2012).

Accordingly, we affirm the revocation of probation and sentence in the 2008 prosecution in this case, but remand for entry of the required written order revoking probation. We affirm the adjudication and sentence in the 2012 case.

Affirmed and Remanded.

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


author: FORST, J.

text:
    Hector RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2877.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Hector Ramirez (“Defendant”) appeals his convictions and sixty-year sentence for sexual battery on a person older than twelve but less than eighteen years of age by a person in familial or custodial authority. The victim in this case was Defendant’s step-daughter. Defendant argues that four rulings of the trial court constitute error. We conclude that none of the challenged rulings constitute an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (“[T]he appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion.”). Accordingly, we affirm.

First, Defendant contends that the trial court erred by denying the defense’s request to give a jury instruction on a permissive lesser-included offense. We review this decision for an abuse of discretion. See Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001) (“This Court has explained that a trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.”) (quoting James v. State, 695 So.2d 1229, 1236 (Fla.1997)); State v. Espinosa, 686 So.2d 1345, 1347 (Fla.1996) (stating the trial court has discretion to determine whether there is support for the giving of an instruction on a permissive lesser-included offense); Ward v. State, 40 So.3d 854, 856 (Fla. 4th DCA 2010). Here, no abuse of discretion occurred. The trial court’s ruling on the jury instruction was in accord with the Florida Supreme Court’s opinion in Khianthalat v. State, 974 So.2d 359, 360-63 (Fla.2008), as the Information in this case does not allege that the sexual acts were done against the step-daughter’s will or with an intent to cause bodily harm, allegations necessary for a charge of battery.

Second, Defendant contends that the trial court erred by overruling defense counsel’s objection that certain comments made by the prosecutor during rebuttal argument were not based on the facts in evidence. We review this ruling for an abuse of discretion. See Peterson v. State, 874 So.2d 14, 15 (Fla. 4th DCA 2004) (applying the abuse of discretion standard to review the trial court’s ruling on an objection based on facts not in evidence). Again, no abuse of discretion occurred. During closing arguments, litigants are allowed wide latitude in arguing to the jury. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982); Linic v. State, 80 So.3d 382, 392 (Fla. 4th DCA 2012). “Logical inferences may be drawn and prosecutors are allowed to advance all legitimate arguments with the limits of their forensic talents in order to effectuate their enforcement of the criminal laws.” Linic, 80 So.3d at 392 (citation omitted). Although “a prosecutor must confíne closing arguments to evidence in the record,” Jones v. State, 730 So.2d 346, 347 (Fla. 4th DCA 1999), the prosecution may make comments as an “invited response” to defense counsel’s preceding arguments. Walls v. State, 926 So.2d 1156, 1166 (Fla.2006). Here, the comments made by the prosecution in its rebuttal argument appear to be permitted replies to arguments made during defense counsel’s closing. See id. at 1166; Linic, 80 So.3d at 392.

Third, Defendant contends the trial court erred by sustaining the State’s objection to the defense’s placing a diagram of Defendant’s house into evidence and providing it to the jury during deliberations. This diagram was prepared by Defendant during his testimony at trial. We review this ruling for an abuse of discretion. San Martin v. State, 717 So.2d 462, 470-71 (Fla.1998) (finding a trial court has wide discretion to determine the admissibility of evidence). Defendant correctly points to case law finding that a diagram by a witness in aid of his testimony may be admissible. Patterson v. State, 128 Fla. 539, 175 So. 730, 731 (1937) (holding that the rule requiring a map or diagram to first be verified as a correct representation before being admitted into evidence “does not apply to a sketch made by a witness in the presence of the jury for the purpose of explaining and clarifying his own testimony”); Landrum v. State, 79 Fla. 189, 84 So. 535, 538 (1920).

However, “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2012). In the instant case, the trial court did not elaborate as to the reason(s) for not admitting the diagram into evidence. The trial court could have erroneously concluded the drawing was inadmissible since it was prepared during testimony. Alternatively, the trial court could have concluded the diagram constituted a “needless presentation of cumulative evidence” or was poorly drawn and therefore confusing or misleading. See, e.g., Bates v. State, 750 So.2d 6, 12 (Fla.1999) (finding a photograph of the defendant in his military uniform would have been merely cumulative if offered into evidence where two fellow National Guard soldiers testified about his dedication to his country); Johnson v. Fla. Farm Bureau Cas. Ins. Co., 542 So.2d 367, 370 (Fla. 4th DCA 1988) (holding that exclusion of a picture of the accident scene that was particularly gruesome was not an abuse of discretion where the picture was “merely cumulative evidence in light of the other testimony and exhibits introduced concerning the accident scene”); Pensacola Inn Ltd. v. Tuthill, 404 So.2d 1173, 1174-75 (Fla. 1st DCA 1981) (finding reversible error where the probative value of photographs offered into evidence of the defendant’s premises after the injury did not outweigh “the danger of unfair prejudice and their tendency to mislead the jury”); Delano Hotel, Inc. v. Gold, 126 So.2d 301, 302 (Fla. 3d DCA 1961) (holding that, where the evidence which rejected records would have shown was presented otherwise through testimony of party seeking its entry, error if any was not harmful).

Even if the exclusion of the diagram was error, we conclude that any error was harmless beyond a reasonable doubt in light of the other testimony and exhibits introduced regarding the layout of the house. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (explaining that the “harmless error” test places the burden on the State to show, beyond a reasonable doubt, that “the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction”). We note that the defense was permitted to use the diagram as an exhibit at trial and during closing argument, and there is no indication in the récord that the inability of the defense to have this drawing placed into evidence hindered its case. There was no witness testimony, nor prosecution argument, which challenged the description of the home’s layout as presented by Defendant’s diagram. The jury was made fully aware of the living arrangement and no argument was presented to make the jury think that Defendant testified inaccurately. Moreover, the evidence presented at trial was sufficient to allow the jury to find each element for the charged offense. There is no basis to conclude that the exclusion of this evidence during jury deliberations contributed to the jury finding an element satisfied.

Fourth, Defendant contends that the trial court erred by denying defense counsel a sidebar conference following the State’s successful challenges to defense counsel’s questioning of the State’s expert witness. We first note that there is some question as to whether Defendant properly preserved this issue for review. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (concluding that preservation requires a contemporaneous objection and a specific legal argument stated). To the extent Defendant may have preserved this issue, we review the court’s decision for an abuse of discretion. See Holley v. State, 48 So.3d 916, 920 (Fla. 4th DCA 2010) (“The trial court has broad discretion in determining the relevance of evidence[.]”). Again, no abuse of discretion occurred. The questions of the witness that defense counsel was precluded from posing would do no more than show that, twenty years ago, the Sexual Assault Treatment Center used a doctor to treat alleged victims, whereas the State’s witness in the instant case was a nurse practitioner. There is no basis for finding that the trial court’s sustaining the State’s challenge to the relevance of the defense’s questions is an abuse of discretion.

Having heard the testimony of the victim and her mother and having examined an incriminating note, the jury found Defendant guilty of two counts of sexual battery on a person older than twelve but less than eighteen years of age by a person in familial or custodial authority. Based on the foregoing, we find no basis to reverse this conviction.

Affirmed.

LEVINE and CONNER, JJ„ concur.


text:
    Andres RIGUEIRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1248.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.

      Andres Rigueiro, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Andres Rigueiro was convicted of four counts of sexual battery (great force not used) and sentenced to forty years in prison on each count, to run currently and be followed by five years of sex offender probation. We affirmed the judgment on appeal. Rigueiro v. State, 919 So.2d 688 (Fla. 4th DCA 2006).

In a revised motion for post-conviction relief, Rigueiro raised nine separate claims. We affirm the trial court’s summary denial of all of them, except for his claims relating to the legality of his sentences, as discussed below. In particular, Rigueiro has demonstrated that his Criminal Punishment Code (CPC) scoresheet totaled 506 points and provided that his lowest permissible prison sentence was calculated to be 358.5 months in prison, or 29.875 years. The trial court sentenced Rigueiro to forty years in prison on each of the counts, to run concurrently, followed by five years of sex offender probation.

Section 921.0024(2), Florida Statutes (2001), provides in part:

If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed. If the total sentence points are greater than or equal to 368, the court may sentence the offender to life imprisonment. An offender sentenced to life imprisonment under this section is not eligible for any form of discretionary early release, except executive clemency or conditional medical release under s. 947.149.

Here, the lowest permissible sentence did exceed the statutory maximum of fifteen years for each of the second degree felonies in this case. As well, the total sentencing points were greater than 363. This left the sentencing court with the option of life sentences or sentences of 358.5 months (29.875 years) in prison, the lowest permissible CPC sentence.

However, the trial court actually sentenced Rigueiro to forty-year concurrent prison terms, followed by five years of sex offender probation. This was an illegal sentence, as the State has conceded in its response filed in this court. See Cliatt v. State, 970 So.2d 902 (Fla. 5th DCA 2007). We recognize, as the court did in Cliatt, that on remand the court may restructure its sentence to accomplish its intended goals at the original sentencing, so long as the new sentence is not deemed to be more severe than the one originally imposed, absent some intervening event. Id. at 902-03 (citing Blackshear v. State, 531 So.2d 956 (Fla.1988)).

In light of the above, we need not separately address the claim of ineffective assistance of counsel for failure to object to sentencing as illegal on the same grounds as discussed here.

Affirmed in part, Reversed in part, and Remanded.

DAMOORGIAN, C.J., TAYLOR and CONNER, JJ., concur.


text:
    SOVEREIGN HEALTHCARE OF PORT ST. LUCIE, LLC, owner, current licensee and a Delaware corporation, d/b/a Tiffany Hall Nursing And Rehab Center, Southern Healthcare Management, LLC, a Delaware corporation, Sovereign Healthcare Holdings, LLC, a Delaware corporation, and Ernande Ann Fortune Lewis, A Florida resident and Administrator of Tiffany Hall Nursing and Rehab Center, Petitioners, v. Natalie FERNANDES, as wife and personal representative of the estate of Joseph Fernandes, deceased, Respondent.
    No. 4D13-1254.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Rehearing Denied Feb. 11, 2014.

      Thomas A. Valdez of Quintarnos, Prieto Wood & Boyer, P.A., Tampa, and Robin N. Khanal of Quintarnos, Prieto Wood & Boyer, P.A., Orlando, for petitioners.
    Stanford R. Solomon and Gabriel D. Pi-nilla of The Solomon Law Group, P.A. Tampa, for respondent.
   PER CURIAM.

Petitioner Sovereign Healthcare of Port St. Lucie, LLC, d/b/a Tiffany Hall Nursing and Rehab Center filed a petition for writ of certiorari to quash a discovery order issued by the trial court in this negligence and wrongful death action filed by respondent, Natalie Fernandes, on behalf of her husband, Joseph Fernandes. Joseph died on March 22, 2009, while in the care and custody of petitioner. Sovereign Healthcare was licensed as a “skilled nursing facility” under Chapter 400, Florida Statutes (2010). Respondent filed interrogatories seeking, among other things, the names and contact information of all of petitioner’s residents at the time of Mr. Fernandes’s death, in order to “identify all individuals who either witnessed [or] had the opportunity to witness the circumstances ... relevant to the facts and issues in the instant case.” Petitioner’s answer objected to the request on the grounds that it was “overbroad, unduly burdensome, [and] irrelevant,” and that it “ask[ed] for the disclosure of residents’ protected health information.”

After an unreported hearing on respondent’s motion to compel, the trial court issued an order granting the motion as to the identity of residents at the time Mr. Fernandes resided with petitioner, but further stated “the disclosure ordered herein is here[by] protected and shall remain confidential for any purpose other than preparation and prosecution of the present lawsuit.”

Petitioner argues that the trial court’s order would cause irreparable harm not remediable on direct appeal due to the disclosure of identifying personal information of residents in violation of both their Florida Constitutional right to privacy, embodied in Art. I, section 23, as well as § 400.022(l)(m), Fla. Stat. (2010), which states that the personal and medical records of residents of nursing facilities such as petitioner are confidential. Petitioner contends that as non-parties to this litigation, the residents of petitioner should not suffer disclosure of their personal identification and contact information unless a “compelling need” was demonstrated by respondent. After considering respondent’s response, as well as petitioner’s reply, we deny the petition.

To be entitled to a writ of certio-rari, a party must demonstrate both material injury that cannot be remedied on plenary appeal (irreparable harm) and a departure from the essential requirements of law. See Allstate Ins. Co. v. Total Rehab. & Med. Ctrs., 123 So.3d 1162, 1163 (Fla. 4th DCA 2013). Irreparable harm has been found where, as here, a discovery order potentially requires the disclosure of personal information subject to privacy restrictions on dissemination, including names and addresses of non-parties to a lawsuit, see Columbia Hosp. Corp. of S. Broward v. Fain, 16 So.3d 236, 239 (Fla. 4th DCA 2009). Accordingly, petitioner has established the jurisdictional basis for this court to assess its entitlement to cer-tiorari relief in this case.

However, petitioner is not entitled to issuance of a writ of certiorari in this ease for two reasons.

First, petitioner failed to show that it raised the privacy of non-parties argument presented here in the trial court, as the answer to the objected-to interrogatory proffered by petitioner does not reference state constitutional or statutory authority on the privacy question. See Natural Solutions Corp. v. Terrabind Int’l, Inc., 840 So.2d 387, 388 n. 2 (Fla. 4th DCA 2003).

Second, the trial court’s order did not depart from the essential requirements of law. Florida Rule of Civil Procedure 1.280(b)(1) defines the general scope of discovery as including the “identity and location of persons having knowledge of any discoverable matter.” See Dist. Bd. of Trs. of Miami-Dade Cmty. Coll. v. Chao, 739 So.2d 105, 108 (Fla. 3d DCA 1999) (identities of witnesses having knowledge of the facts of case are discoverable); Amente v. Newman, 653 So.2d 1030, 1032 (Fla.1995) (“[T]he concept of relevancy is broader in the discovery context than in the trial context.” (citation omitted)). Here, the interrogatory at issue sought “to identify all individuals who either witnessed [or] had the opportunity to witness” the events out of which this case arose, specifically the care of Mr. Fer-nandes by petitioner nursing facility prior to his death. Under similar circumstances, both this court in Miller v. Savanna Maintenance Ass’n, 979 So.2d 1235, 1237-38 (Fla. 4th DCA 2008), and the first district in Delta Health Group, Inc. v. Estate of Collins, 36 So.3d 711, 712 (Fla. 1st DCA 2010), denied certiorari where those petitioners sought to quash discovery orders requiring disclosure of personal identification information such as names, addresses, and/or telephone numbers of non-party fact witnesses. Given the facts of this case, the same result is appropriate here.

Petition for writ of certiorari is denied.

DAMOORGIAN, C.J., GROSS and CIKLIN, JJ., concur.


text:
    Richard BEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2719.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Rehearing Denied Feb. 11, 2014.

      Andrew C. Rose, Deerfield Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s untimely motion for postconviction relief. On appeal, appellant argues that he should have been afforded an evidentiary hearing on his allegations that counsel was asked to file the motion within two years of discovery of the alleged misadvice about the immigration consequences of the plea. We reject this argument.

The two-year time limit for filing a post-conviction motion runs from the date the conviction and sentence become final, not from when a defendant discovers misad-vice. Mortimer v. State, 96 So.3d 1060, 1063 (Fla. 4th DCA 2012); State v. Green, 944 So.2d 208 (Fla.2006). The motion is untimely and no valid exception was alleged.

Affirmed.

TAYLOR, CIKLIN and CONNER, JJ., concur.


text:
    Frank PIACETILLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3326.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Frank Piacetilli, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Coke v. State, 955 So.2d 1216, 1217 (Fla. 4th DCA 2007).

MAY, CIKLIN and KLINGENSMITH, JJ., concur.


author: MAY, J.

text:
    PALM BEACH POLO HOLDINGS, INC., a Florida corporation, Appellant, v. STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellee.
    No. 4D12-2640.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellant.
    Kristie Hatcher-Bolin and Monterey Campbell of GrayRobinson, P.A., Lake-land, and Neil P. Linden and David B. Levin of GrayRobinson, P.A., Miami, for appellee.
   MAY, J.

This is the third appeal in a trilogy of fee awards against the insured. The insured appeals an attorneys’ fees and costs award in favor of the insurer entered pursuant to the offer of judgment statute. The insured argues the court erred in granting the award because the insurer’s proposal for settlement was ambiguous, and because the trial court should not have included fees for travel time and for time spent in litigating the fees to be awarded. We affirm in all respects, except for the time awarded for litigating the amount of fees to be awarded.

After losing a property dispute, the insured filed a complaint against the insurer for breach of the insurance contract and bad faith based on the insurer’s refusal to finance the appeal of the unsuccessful property dispute. The insurer counterclaimed for reimbursement of the attorneys’ fees paid to finance the property dispute under a reservation of rights. The insurer also filed a motion seeking sanctions against the insured under section 57.105, Florida Statutes (2010), for filing the new litigation.

The insurer subsequently sent the insured a proposal for settlement pursuant to section 768.79, Florida Statutes (2010). The proposal offered to dismiss the counterclaim in exchange for $93,000 and a “stipulated notice of voluntary dismissal of the instant action.” The proposal expressly excepted the 57.105 sanctions award previously granted to the insurer. The insured did not respond within thirty days, constituting a rejection of the proposal.

The jury awarded the insurer $156,870 in attorneys’ fees and $15,963.20 in costs and expenses on its counterclaim. The trial court entered a final judgment in the amount of $255,219. The insurer then moved to tax attorneys’ fees pursuant to section 768.79.

At the hearing on the motion, the insured argued that the insurer was not entitled to fees because the proposal was ambiguous. The insurer responded that the proposal clearly offered to resolve the two-count complaint and the insurer’s counterclaim with a “carve-out” for the 57.105 sanctions in exchange for a payment to the insurer of $93,000.

As to the amount of fees sought, the insurer’s expert testified that $350 per hour for the shareholder and $185 per hour for the associate were reasonable, and that 311.6 hours had reasonably been expended since service of the proposal for a total of $88,216.50. He further testified that he had spent 47.9 hours on the case, and his hourly rate was $375 per hour, resulting in fees of $17,475. In calculating the total attorneys’ fees, the expert included travel time and fees incurred in litigating the entitlement and amount of attorneys’ fees to be awarded.

The trial court orally pronounced that it would not deduct travel time or fees-for-fees from the award, and entered a final order and judgment awarding the insurer $80,655 in fees and $33,548.76 in costs, for a total of $114,203.76. From this judgment, the insured now appeals.

The insured continues to argue the trial court erred in granting attorneys’ fees and costs because the proposal for settlement was ambiguous. The insurer responds that the proposal was not ambiguous because it clearly delineated which claims it intended to extinguish. We have de novo review. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 891 (Fla. 4th DCA 2010). We agree with the insurer on this point.

Rules 1.442(c)(2)(B) & (C) of the Florida Rules of Civil Procedure require that settlement proposals “identify the claim or claims the proposal is attempting to resolve” and “state with particularity any relevant conditions.” Our supreme court has held that “[t]he rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006); Pollinger, 42 So.3d at 891.

We see no ambiguity. When the insurer sent the proposal to the insured, the trial court had already dismissed the insured’s complaint and granted the insurer’s motion for judgment on the pleadings. All that remained were amounts owed to the insurer on its counterclaim and 57.105 sanctions. The proposal sought to avoid a jury trial on damages by having the insured pay $93,000 on the counterclaim. The only matter excepted was the sanctions award. We find no merit in the insured’s other two ambiguity arguments.

Proposals for settlement are governed by section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, which delineate the technical requirements for making such offers. Section 768.79 gave the insured 30 days to accept the settlement. The insured did not accept within the time frame. The insurer subsequently recovered “a judgment in an amount at least 25 percent greater than the offer ....” § 768.79(1), Fla. Stat. (2010). The insurer was therefore entitled to attorney’s fees and costs “incurred from the date of the filing of the demand.” Id. The trial court correctly awarded the insurer fees and costs pursuant to the statute and the rule.

The insured next argues that the court erred in awarding fees for travel time. The insurer responds that travel time is compensable under the offer of judgment statute because they are meant as a sanction. We again agree with the insurer.

“Entitlement to attorney’s fees based on the interpretation of a statute or contract is also reviewed de novo.” State Farm Fla. Ins. Co. v. Silber, 72 So.3d 286, 288 (Fla. 4th DCA 2011).

Although travel time is generally not compensable, travel time may be awarded as part of a sanction under certain circumstances, such as where a party was aware that his actions could result in unnecessary litigation. See Eve’s Garden, Inc. v. Upshaw & Upshaw, Inc., 801 So.2d 976, 979 (Fla. 2d DCA 2001). An award of fees under section 768.79, Florida Statutes, is a “sanction against a party who unreasonably rejects a settlement offer.” Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla.2010). We therefore find no error in awarding fees for travel time.

Lastly, the insured argues that the attorneys’ fee award should be reversed because it included fees for litigating the attorneys’ fee motion. The insurer again responds that fees-for-fees are allowed where the fees are being awarded as a sanction against the party paying them. On this issue, we agree with the insured.

Although fees incurred in litigating entitlement to attorneys’ fees under section 768.79 are authorized, fees incurred in litigating the amount of fees are not recoverable. See, e.g., Oruga Corp. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141 (Fla. 3d DCA 1998) (disallowing fees for litigating the amount).

We do not believe that an award of attorney’s fees for litigating the amount of attorney’s fees, comports with the purpose of this statute. Such work inures exclusively to the attorney’s benefit and does not serve to encourage the parties to expeditiously resolve their differences short of a trial. We therefore decline to construe section 768.79 as permitting such fees.

Id. at 1145 (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993)).

We therefore affirm the fee and cost award except to the extent it includes time expended in litigating the amount of fees to be awarded.

Reversed in part and remanded.

CIKLIN, J., and SCHIFF, LOUIS, Associate Judge, concur.

      . Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass'n, Inc., 949 So.2d 347 (Fla. 4th DCA 2007).

      . The appeal of the final judgment was assigned case number 4D11-4660. The appeal of the 57.105 sanctions was assigned case number 4D12-231. Those two cases were consolidated and addressed in the same opinion.

      . The award of fees under section 768.79 does not overlap with the award of fees under section 57.105. The 57.105 fees covered only the period of time between the filing of the insured's complaint and the order dismissing it (April 2007 to December 2007). The 768.79 fees covered the period of time between proposal for settlement and the fee award (June 2011 to June 2012).

      . The proposal for settlement included a condition that the insured agree to a stipulated notice of voluntary dismissal of his claims. Although the complaint had already been dismissed at the time the proposal was made, the insured attempted to keep his action alive by arguing that the court had only dismissed one of the two counts. Including a voluntary dismissal of both counts of the insured’s complaint would have clarified the record and prevented the insured from attempting to make that argument again.


text:
    Bernell HEGWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2360.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 11, 2014.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013).

GROSS, GERBER and LEVINE, JJ., concur.


author: PER CURIAM. LaROSE, Judge,

text:
    Lorninous ISOM, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3027.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

This appeal involves the denial of Lorni-nous Isom’s motion for postconviction relief. See Fla. R.Crim. P. 3.850. The post-conviction court properly denied relief and this court properly affirms the order on appeal. I write separately to address Mr. Isom’s claim that the postconviction court erred in allowing the assistant state attorney who prosecuted him for the underlying first-degree murder charge to testify as the State’s key witness and to act as the State’s advocate at the rule 3.850 eviden-tiary hearing.

I find it clear, and the State seemingly concedes, that the prosecutor should not have served as witness and counsel at the hearing. See R. Regulating Fla. Bar 4-3.7(a). I do not condone this dual role. However, the record before us fails to demonstrate that Mr. Isom suffered any undue prejudice as a result.


text:
    Anthony STEFFEN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D14-154.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2014.
    Kayo Morgan of Kayo E. Morgan, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Anthony Steffen petitions this court for a writ of habeas corpus seeking to strike the additional condition of “house arrest” as a condition of his pretrial release. This term was added in response to the State’s motion for pretrial detention filed two months after the initial pretrial release terms were set. We grant the petition and quash the pretrial detention order as the record presented does not establish that new evidence or a change of circumstances was demonstrated to the court to justify a modification of the bail order entered at the first hearing. Bush v. State, 74 So.3d 130 (Fla. 1st DCA 2011); Goelz v. Bradshaw, 906 So.2d 1234 (Fla. 4th DCA 2005); see also Saravia v. For Miami-Dade Cnty., 129 So.3d 1163 (Fla. 3d DCA 2014).

Petition granted; order quashed.

No motions for rehearing will be entertained. Mandate shall issue simultaneously with this opinion.

STEVENSON, CIKLIN and KLINGENSMITH, JJ„ concur.


author: SLEET, Judge.

text:
    FCCI COMMERCIAL INSURANCE COMPANY, INC., Petitioner, v. James A. ARMOUR; 4449 Holdings Co., LLC; Windemuller Technical Services, Inc.; and Horizon Construction Co., Inc., Respondents.
    No. 2D13-2649.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.

      Robert M. Darroch and Chad W. Biek-erton of Goodman McGuffey Lindsey & Johnson, LLP, Sarasota, for Petitioner.
    Edward E. Koester and David Kerem of Coleman, Yovanovich & Koester, P.A., Naples, for Respondents James A. Armour and 4449 Holdings, LLC.
    Patricia D. Crawels and Arthur S. Hardy of Matthews Eastmoore, Sarasota, for Respondent Windemuller Technical Services, Inc.
    No appearance for Respondent Horizon Construction Co., Inc.
   SLEET, Judge.

FCCI Commercial Insurance Company (FCCI) seeks a writ of certiorari to review the order staying its declaratory judgment action against its insured pending the resolution of an arbitration action and liability action between the insured and a third party. For the reasons explained below, we grant the petition.

Facts

The underlying arbitration and liability actions arise from James Armour and 4449 Holdings Company’s (collectively Armour) efforts to recover for the allegedly defective construction of a large personal residence in Sarasota. Armour initiated arbitration proceedings against the general contractor, the prior property owner, and the fourteen subcontractors used to complete the residence. After the subcontractors were dismissed from the arbitration proceedings, Armour filed a separate action against them in the circuit court. FCCI insures two of the subcontractors, Windemuller Technical Services, Inc. (Windemuller) and Horizon Construction Services, Inc. (Horizon). FCCI filed a separate declaratory action to resolve its duty to defend and indemnify Horizon and Windemuller under their insurance policies.

The circuit court granted Armour’s motion to stay the declaratory action after a hearing where Armour argued that consideration of the policy provisions regarding FCCI’s duty to defend and indemnify its clients would involve the same factual disputes and issues raised in the arbitration and liability actions in the circuit court. The court stayed both the declaratory judgment and liability actions pending the resolution of the arbitration action.

Analysis

FCCI argues, and we agree, that it will suffer irreparable injury if it is required to provide a defense for Windemul-ler and Horizon when it has no obligation to do so. This court has previously recognized that insurance providers are irreparably harmed when forced to defend their clients prior to a determination of their contractual obligation to do so. See Indent. Ins. Co. of N. Am. v. Ridenour, 629 So.2d 1053, 1054 (Fla. 2d DCA 1993) (explaining that determination of the duty to defend should be done expeditiously “since providing a defense where no obligation to do so exists has been recognized as ‘irreparable injury’ ” (quoting State Farm Fire & Cas. Co. v. Nail, 516 So.2d 1022, 1023 (Fla. 5th DCA 1987))); Int’l Surplus Lines Ins. Co. v. Markham, 580 So.2d 251, 254 (Fla. 2d DCA 1991) (“[P]roviding a defense where there is no legal obligation to do so constitutes an irreparable injury in and of itself.” (quoting Nail, 516 So.2d at 1023)).

In Higgins v. State Farm Fire & Casualty Co., 894 So.2d 5, 16 (Fla.2004), the supreme court announced several factors “which are of genuine concern in determining whether a declaratory judgment action as to insurance policy indemnity coverage should proceed ahead of the underlying tort actions.” In Progressive Express Insurance Co. v. Reed, 971 So.2d 176, 178 (Fla. 5th DCA 2007), the Fifth District succinctly restated the Higgins factors as follows:

(1) Whether the two actions are mutually exclusive;
(2) Whether proceeding to a decision on the indemnity issue will promote settlement and avoid the problem of collusive actions between the claimant and the insured in order to create coverage where there is none; and
(3) Whether the insured has resources independent of insurance, so that it would be immaterial to the claimant whether the insured’s conduct was covered or not covered by indemnity insurance.

Whether the actions involve common factual questions is not determinative of whether the declaratory action should be stayed pending the resolution of the arbitration and liability actions. See Century Sur. Co. v. de Moraes, 998 So.2d 662, 665 (Fla. 4th DCA 2009) (concluding that the circuit court departed from the essential requirements of law in staying the coverage issues in the declaratory judgment action pending the outcome of the underlying tort action even though the actions involved a common factual question). Because FCCI argues that all of Armour’s claims against its insured are outside the scope of its policy, the claims are mutually exclusive; Windemuller and Horizon are either covered by their FCCI policies or they are not. See Higgins, 894 So.2d at 16 (explaining that in a situation where some claims are covered and some are not, “the indemnity issue and the duty to defend issue are inextricable” (quoting Allstate Ins. Co. v. Conde, 595 So.2d 1005, 1006 (Fla. 5th DCA 1992))); Reed, 971 So.2d at 178 (holding that the claims were mutually exclusive because “[i]f [the insurance company] were to succeed in its declaratory judgment action, it would be relieved of the obligation to defend the tort action”).

According to FCCI, Horizon entered bankruptcy during the pendency of the arbitration and liability actions. Because the FCCI policy is the only means for recovery against insolvent Horizon, the coverage issue will be extremely important both to settlement negotiations and Armour’s decision to continue the pursuit of a judgment against Horizon. See Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So.2d 138, 141 (Fla. 4th DCA 1994). Therefore, all of the Higgins factors weigh in favor of allowing the declaratory action to proceed.

It appears that the trial court did not make any determination regarding FCCI’s duty to defend based on the allegations in Armour’s amended complaint. Insurers should be entitled to an expeditious ruling on coverage; a prompt determination of coverage is in the best interests of the insurer, the insured, and the injured party. Higgins, 894 So.2d at 15 (quoting Britamco, 632 So.2d at 141). The order staying the declaratory action pending resolution of the underlying arbitration and liability actions is a departure from the essential requirements of law that causes irreparable harm to FCCI by forcing it to defend its insured without resolution of the coverage dispute. Because we see no justifiable reason to delay resolution of the declaratory action, we grant the writ and quash the order granting the stay. This case is remanded to the circuit court for further proceedings consistent with this opinion.

NORTHCUTT and KHOUZAM, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Tonia ROOT, individually and on behalf of Gage Root, a minor, Petitioner, v. BALFOUR BEATTY CONSTRUCTION LLC, a Delaware limited liability corporation; Zep Construction, Inc.; C.W. Roberts Contracting, Inc. f/k/a Cougar Contracting Specialities, Inc., a wholly owned subsidiary of Construction Partner Inc.; DRMP, Inc.; Roadsafe Traffic Systems, Inc. f/k/a Nes Traffic Safety/Roadsafe Traffic, L.P. f/k/a Nes Traffic Safety, L.P.; Allied Engineering and Testing, Inc.; and City of Cape Coral, Respondents.
    No. 2D13-3205.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.

      Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa, and Todd R. Falzone of Kelley Uustal, PLC, Ft. Lauderdale, for Petitioner.
    Helen Ann Hauser, Peter Restani, and Eric Farmelant of Restani, Dittmar & Hauser, P.A., Coral Gables, for Respondents Balfour Beatty Construction, LLC and City of Cape Coral.
    Scott A. Cole, David Salazar, and Kathryn L. Smith of Cole, Scott & Kissane, P.A., Miami, for Respondent Zep Construction, Inc.
    No appearance for remaining Respondents.
   SILBERMAN, Judge.

Tonia Root, individually and on behalf of Gage Root, seeks certiorari review of the circuit court’s discovery order approving a magistrate’s recommendations and requiring Root to produce copies of postings on her Facebook account. Root argues that the order departs from the essential requirements of the law because it allows discovery that is overbroad and compels the production of personal information that is not relevant to her claims. We agree and grant the petition.

The underlying action is a negligence action filed by Root against the City of Cape Coral, a construction contractor, and subcontractors (Defendants) for damages Root’s three-year-old son Gage suffered when he was struck by an oncoming vehicle in front of a construction site. The accident occurred while Gage was under the care of his seventeen-year-old aunt. Root alleged that Defendants were negligent for failing to use reasonable care in keeping the construction site safe for pedestrians. Root also raised derivative claims for loss of parental consortium. Defendants raised affirmative defenses including negligent entrustment of Gage by Root, the aunt’s failure to supervise, and the driver’s negligence.

The discovery order at issue requires Root to produce copies of postings on her Facebook account which include the following:

(i.) Any counseling or psychological care obtained by Tonia Root before or after the accident;
(o.) Any and all postings, statuses, photos, “likes” or videos related to Tonia Root’s
i. Relationships with Gage or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;
v. Facebook account postings relating to any lawsuit filed after the accident by Tonia Root or others[.]

These categories are in addition to fifteen other categories of information which Root concedes is discoverable.

Root argues that the order departs from the essential requirements of the law because the above-listed categories are overbroad and the order requires the production of personal information that is irrelevant and not likely to lead to the discovery of admissible evidence. Defendants disagree and also argue that Root has not established certiorari jurisdiction in this court because she has not alleged irreparable harm arising from the discovery order.

We begin our analysis with Defendants’ jurisdictional argument. In order to confer certiorari jurisdiction, a petitioner is required to establish irreparable harm that is material and not remediable on postjudgment appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). An order compelling the production of discovery that implicates privacy rights demonstrates irreparable harm. Fla. First Fin. Group, Inc. v. De Castro, 815 So.2d 789, 791 (Fla. 4th DCA 2002) (citing Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 536-37 (Fla.1987)); see also Holland v. Barfield, 35 So.3d 953, 956 (Fla. 5th DCA 2010) (holding that a discovery order requiring disclosure of private information on a computer hard drive and cell phone SIM card demonstrated irreparable harm). Additionally, an order that entitles a party to carte blanche discovery of irrelevant material demonstrates the type of irreparable harm that may be remedied via petition for writ of certiorari. See Langston, 655 So.2d at 95. We conclude that Root has appropriately invoked our certiorari jurisdiction.

On the merits, trial courts around the country have repeatedly determined that social media evidence is discoverable. See Christopher B. Hopkins & Tracy T. Segal, Discovery of Facebook Content in Fla. Cases, 31 No. 2 Trial Advoc. Q. 14, 14 (Spring 2012). And the Florida Rules of Civil Procedure were amended in 2012 to provide guidelines regarding the production of electronically stored information. See Fla. R. Civ. P. 1.350 committee notes (2012 amend.). As one federal court has stated, discovery of information on social networking sites simply requires applying “basic discovery principles in a novel context.” E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D.Ind.2010).

Under the basic principles for evaluating discovery in Florida, the party seeking discovery must establish that it is (1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. Fla. R. Civ. P. 1.280(b)(1); Langston, 655 So.2d at 94. We agree with Root that at present, Defendants have not met this burden as to the requested discovery.

Root’s complaint contains claims on behalf of Gage for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of Gage by Root, the aunt’s failure to supervise, and the driver’s negligence. As to Gage’s claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to Root’s past and present personal relationships with all her children, other family members, and significant others; Root’s past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by Root or others after the accident.

The requested discovery also appears at this time to be irrelevant to Root’s claims for loss of consortium. Although Root’s deposition has been taken, Defendants do not point to anything claimed by her in support of their contention that the requested information is relevant and discoverable. Generally, any such discovery should have been limited to that related to the impact of Gage’s injury upon Root. See United States v. Dempsey, 635 So.2d 961, 965 (Fla.1994) (“[W]e define loss of ‘consortium’ to include the loss of companionship, society, love, affection, and solace of the injured child, as well as ordinary day-to-day services that the child would have rendered.”).

Moreover, the scope of the discovery compelled in categories (i) and (o )(i, ii, iii, v) regarding Root’s relationships with her entire family and significant others, her mental health history, her substance use history, and her litigation history appears to be the type of carte blanche discovery the supreme court sought to guard against in Langston. See Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 745 (Fla. 5th DCA 1997) (observing that while an individual’s health, life expectancy, and habits are at issue and broad discovery is allowed, a court must still determine which records would be relevant and the court should take protective measures, such as an in camera inspection, to prevent disclosure of irrelevant matters); see also Higgins v. Koch Dev. Corp., No. 3:11-cv-81-RLY-WGH, 2013 WL 3366278, at *3 (S.D.Ind. July 5, 2013) (holding that the defendant was entitled to discovery of the plaintiffs’ Facebook pages limited to the specific material that is relevant to the plaintiffs’ claims).

Significantly, one defendant’s argument to the magistrate who heard the discovery issues supports Root’s contention that the requested discovery constitutes a fishing expedition. The defendant’s attorney stated, “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Even the magistrate acknowledged that relevancy might be a problem, noting that “95 percent, or 99 percent of this may not be relevant.” The magistrate also expressed some misgivings at the possibility that large amounts of material might have to be reviewed in camera.

In summary, based on the current posture of the case we conclude that the portion of the order permitting the discovery of categories (i) and (o )(i, ii, iii, v) must be quashed. Should further developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 945-46 (Fla.2002); Russell, 690 So.2d at 745; see also Michael B. Pullano & Matthew G. Laver, Discovery Rulings Increasingly Unfriendly to Facebook Users’ Privacy Rights, 82 U.S.L.W. 867, 892-95 (Dec. 17, 2013) (discussing various approaches courts have taken to ensure that Facebook material requested in discovery is not overbroad). Accordingly, we grant Root’s petition for writ of certio-rari and quash the discovery order as it pertains to categories (i) and (o )(i, ii, iii, v).

Petition granted; order quashed in part.

NORTHCUTT and CASANUEVA, JJ„ Concur.


author: LaROSE, Judge.

text:
    W.D., Appellant, v. STATE of Florida, Appellee.
    Nos. 2D12-3453, 2D12-3454.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

In appeal case number 2D12-8453 (juvenile court case number ll-CJ-3113), W.D. appeals the withhold of adjudication and disposition order relating to charges of loitering and prowling, possession of cannabis, and possession of paraphernalia. He pleaded no contest to these misdemeanor offenses. He argues that the trial court should have granted his dispositive motion to suppress identity and evidence because the arresting officer had no basis to arrest him for loitering and prowling. We have jurisdiction, see Fla. R. App. P. 9.145, 9.140(b)(2)(A)(i), and reverse.

We are bound-by the trial court’s factual findings if supported by competent substantial evidence. We review de novo the application of the law to the facts. Simms v. State, 51 So.3d 1264, 1265 (Fla. 2d DCA 2011); P.R. v. State, 97 So.3d 980, 982 (Fla. 4th DCA 2012).

On a Friday afternoon in early June 2011, Deputy Venero saw W.D. and another boy on the back patio of a vacant house under renovation by Habitat for Humanity. He observed no wrongdoing. The deputy recalled, however, that a dispatch reported that children were behind the house.

Deputy Venero grew concerned about a possible burglary or truancy. Seeing the deputy approach, the boys fled. Deputy Venero eventually caught them. He brought them to his patrol car, searched them, handcuffed them, placed them under arrest, and seated them in the back of his car. He checked the house; he found no signs of a burglary, attempted burglary, or any other mischief. He arrested the boys solely “from the suspicion of a crime being committed.” Deputy Venero acknowledged that if he did not have a burglary, “I probably had a loitering and prowling.” We note that W.D. explained to the deputy that the boys had gone to a store, bought some sodas, and had stopped to drink the sodas on the back patio of the house. W.D. also advised the deputy that he had been suspended from school.

Denying the motion to suppress, the trial court found that the totality of the circumstances justified “a stop, a detention.” The trial court noted the following circumstances: (1) the deputy knew the house was vacant; (2) W.D. should have been in school at the time; (3) W.D. fled; and (4) W.D. hid. According to the trial court, “[t]he totality of those circumstances would lead a reasonable person to believe that a crime was either being committed or was about to be committed at the time the police officer arrived.” Although Deputy Venero probably had a basis to investigate further, see Terry v. Ohio, 392 U.S. 1, 15-16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a mere investigatory stop is not what happened. He arrested W.D. for loitering and prowling. See Simms, 51 So.3d at 1265; P.R., 97 So.3d at 982.

Section 856.021, Florida Statutes (2010), defines loitering and prowling. Case law is legion that

The crime of loitering and prowling has two elements: (1) the defendant loitered and prowled “in a place, at a time, or in a manner not usual for law-abiding individuals,” and (2) the loitering occurred under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. Because of its potential for abuse, the loitering statute must be applied with special care. It is not to be used as a “catch-all” provision when there is an insufficient basis for another charge.
To satisfy the first element, the state must prove that “the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved.” Such behavior comes close to, but falls short of, the actual commission or attempted commission of a substantive crime. A “vaguely suspicious presence” is insufficient. Rather, the defendant’s behavior must point “toward an imminent breach of the peace or threat to public safety.” Stated another way, there must be a “threat of immediate, future criminal activity.”
To satisfy the second element, the state must demonstrate that the loitering occurred under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” “Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object.”
If after being confronted by an officer, the defendant “produces credible and reliable identification and complies with the orders of the law enforcement officer necessary to remove the threat to the public safety ... the charge under this statute can no longer properly be made.” However, “[t]he failure to provide identification or a reasonable explanation for the questioned activity are not elements of the crime.”
“[T]he offense of loitering and prowling must be completed prior to any police action.” And because flight from police comes after the officer’s presence is made known, flight alone is insufficient to satisfy the elements of loitering and prowling.

P.R., 97 So.3d at 982-83 (internal citations omitted). See also Simms, 51 So.3d at 1267 (noting that the loitering and prowling statute requires special care in its application and cannot be used as a catchall where police may arrest persons when there is no other basis that justifies their detention; collecting cases); S.K.W. v. State, 112 So.3d 775, 777 (Fla. 2d DCA 2013) (explaining the elements of loitering and prowling and collecting cases); Mills v. State, 58 So.3d 936, 939-40 (Fla. 2d DCA 2011) (holding that officers did not have probable cause to arrest defendant for loitering and prowling; officers did not observe both elements of the crime where only vaguely suspicious presence was apparent and there was no showing of an imminent breach of the peace or threat to persons or property); Ferguson v. State, 39 So.3d 551, 553-54 (Fla. 2d DCA 2010) (holding that officer lacked probable cause necessary to arrest defendant on loitering and prowling; there was no evidence that conduct suggested that a breach of the peace was imminent or that the conduct was close to the commission or attempted commission of a substantive crime such as an imminent burglary, trespass, or other crime).

Deputy Venero had no basis to charge W.D. with burglary, truancy, or trespass. Assuming that W.D.’s presence was more than just vaguely suspicious, we do not find that the second element of loitering and prowling is satisfied in any way. There is no evidence suggesting that Deputy Venero observed conduct sufficient to raise an immediate concern for the safety of persons or property. Thus, the trial court erred in denying the motion to suppress.

Affirmed as to juvenile case number 12-CJ-774; reversed and remanded to vacate the dispositions in juvenile case number ll-CJ-3113.

ALTENBERND and KELLY, JJ., Concur.

      . Appeal case number 2D12-3454 (juvenile court case number 12-CJ-774), involves review of W.D.’s disposition and withhold of adjudication for battery on a school teacher. W.D. filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find no reversible error in the trial court's rulings and affirm without further discussion.