author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Arthur Lee HUNT, a/k/a Arthur Lee Hunt, Jr., Appellee.
    No. 2D08-2834.
    District Court of Appeal of Florida, Second District.
    May 22, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   WALLACE, Judge.

The State appeals the circuit court’s order suppressing statements made by the defendant, Arthur Lee Hunt, in response to a custodial interrogation conducted after Mr. Hunt had reinitiated dialogue with detectives following his initial invocation of his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because the circuit court applied the incorrect law in determining whether the statements should be suppressed, we reverse and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On October 31, 2007, Mr. Hunt, who had recently been released from prison, was arrested for an alleged violation of his probation. Following the arrest, Detective William Waldron and Detective Sam Levi-ta of the Manatee County Sheriff’s Office interviewed Mr. Hunt concerning a pending homicide investigation. The interview was interrupted and then reinitiated. Both the. first and the second portions of the interview were recorded on videotape.

Before the interview began, Detective Levita advised Mr. Hunt of his Miranda rights, and Mr. Hunt executed a written waiver of those rights. The detectives then offered Mr. Hunt “water or coffee or anything.” Mr. Hunt responded that he wanted a cigarette. Detective Levita told Mr. Hunt that they would go outside later and allow him to smoke then.

During the first portion of the interview, Mr. Hunt admitted to smoking “a little marijuana” between the date of his release from prison and the date of his arrest. After speaking with the detectives for approximately thirty minutes, Mr. Hunt declared, “I’m through talking, man.” At this, the detectives stopped asking questions about the homicide investigation.

Immediately following Mr. Hunt’s invocation of his right to remain silent, Detective Waldron asked Mr. Hunt: “You want to go have that cigarette now?” Mr. Hunt responded affirmatively. Detective Wal-dron then escorted Mr. Hunt downstairs to the outside of the building. Detective Levita — who was the lead detective on the pending homicide investigation — did not-accompany them. While outside, Detective Waldron and Mr. Hunt each smoked two cigarettes. Detective Waldron estimated that he and Mr. Hunt were out of the building for approximately twenty minutes.

At the hearing on the motion to suppress, Detective Waldron testified that Mr. Hunt reinitiated the conversation concerning the pending homicide investigation while the two men were outside. Detective Waldron provided the only testimony concerning what occurred outside the building as follows:

Mr. Hunt initiated the conversation, kept telling me that, you know, he had nothing to do with this, you know; he was, being just recently getting out of state custody, he was worried that this was going to affect his status; and kept asking questions about the case. Said, you know, [the victim] was family and he would never do anything like this.
He was just asking me questions about the case, telling me this was family, he would never do anything like this, he didn’t know why he was being accused, kept talking about the case, asking me questions. I knew very little about the homicide investigation itself, since I had no active participation in it up until the point of this interview. And I explained to Mr. Hunt, I said if there’s things that you want to talk to Detective Levita about that might assist in the homicide investigation, you know, might be in your best interest to talk to him.
And he kept asking more questions, I had reminded him a couple of times, you know, I said, Arthur, you asked for an attorney, you said you didn’t want to talk any more, said, but you’re asking me these questions. And he says, Well, I got to know, you know, I need to know what’s going on here. And I said, When we get back upstairs, if you want to talk about this case and ask Detective Levita questions, you need to make that clear to Detective Levita, who’s the lead investigator. And we can go back, but any questions you may ask or we may ask -will have to be back on tape.

According to Detective Waldron, Mr. Hunt agreed to speak further with the detectives about the subject of the investigation.

After Detective Waldron and Mr. Hunt returned to the room where the interview had been taking place, Detective Waldron informed Detective Levita about what had occurred outside the building. Mr. Hunt confirmed that he wished to speak to the detectives further, and the interview resumed. The detectives did not repeat the Miranda warnings that they had previously given. During the course of the second portion of the interview, Mr. Hunt said that he had been in possession of a gun three days before the homicide occurred. After additional conversation, Mr. Hunt once again invoked his right to remain silent, and the detectives terminated the interview.

The State subsequently charged Mr. Hunt with possession of a firearm by a convicted felon, section 790.23, Florida Statutes (2007). He filed motions to suppress his statements in both the case for which he was on probation and in the firearm possession case. After a hearing, the trial court denied the motion as to the first portion of the statement and granted the motion as to the second portion of the statement. On appeal, the State challenges the order to the extent that it suppressed the second portion of the statement.

II. THE STANDARD OF REVIEW

A lower court’s ruling on a motion to suppress is presumptively correct and will be upheld if supported by the record. Cuervo v. State, 967 So.2d 155, 160 (Fla.2007); State v. Shuttleworth, 927 So.2d 975, 978 (Fla. 2d DCA 2006). The reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. Doorbal v. State, 837 So.2d 940, 952 (Fla.2003) (quoting Terry v. State, 668 So.2d 954, 958 (Fla.1996)). An appellate court is bound by the lower court’s factual findings if they are supported by competent, substantial evidence. Cuervo, 967 So.2d at 160. However, the lower court’s application of the law to the facts is reviewed de novo. Id.

III. THE APPLICABLE LAW

After a suspect invokes his or her right to remain silent during a custodial interrogation, “ ‘the interrogation must cease.’ ” Michigan v. Mosley, 423 U.S. 96, 100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602). It follows that after a suspect invokes his or her right to remain silent, the police must refrain from “any words or actions ... (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted). Any statements obtained thereafter are admissible only if the suspect’s right was “scrupulously honored.” Mosley, 423 U.S. at 104, 96 S.Ct. 321.

Where, as here, a suspect has made statements to the police after invoking his right to remain silent, the correct approach to determining whether the police have scrupulously honored the suspect’s right to remain silent may require a two-step analysis. In the first step, courts must decide whether the police continued to interrogate the suspect despite his or her invocation of the right to remain silent. If the police continued the interrogation, then they failed to scrupulously honor the right to remain silent and the resulting statements are inadmissible. Cuervo, 967 So.2d at 166-67; Martin v. State, 987 So.2d 1240, 1241 (Fla. 2d DCA 2008). Under these circumstances, the court need not proceed to the second step.

On the other hand, if the interrogation ceased, the court must proceed to the second step of the analysis. In the second step, the court must determine who reiniti-ated the dialogue. The answer to this question determines what factors the court must examine in resolving the issue.

In cases where the police reinitiat-ed the dialogue, courts must examine the following factors: (1) whether the suspect was informed of his or her Miranda rights at the outset of each interrogation, (2) whether the police immediately ceased questioning after the suspect invoked the right, (3) whether there was a sufficient lapse of time between the invocation of the right and the resumption of questioning, (4) whether questioning resumed at a different location, and (5) whether the two rounds of questioning concerned different crimes. See Mosley, 423 U.S. at 106, 96 S.Ct. 321; Globe v. State, 877 So.2d 663, 670 (Fla.2004), abrogation recognized on other grounds in State v. Hernandez, 875 So.2d 1271, 1273 (Fla. 3d DCA 2004); State v. Belcher, 520 So.2d 303, 304 (Fla. 3d DCA 1988); State v. Taylor, 838 So.2d 729, 739 (La.2003).

However, where it was the suspect who reinitiated the dialogue with the authorities, the inquiry is different. Under these circumstances, the courts consider whether the suspect’s decision to change his or her mind and to waive his or her rights by speaking with the authorities was voluntary, knowing, and intelligent. See Welch v. State, 992 So.2d 206, 214-15 (Fla.2008) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)); People v. Bell, 217 Ill.App.3d 985, 160 Ill.Dec. 657, 577 N.E.2d 1228, 1237-38 (1991); Taylor, 838 So.2d at 739-40.

[W]here the defendant initiates further communications, the passage of time after the invocation of Miranda rights is not a critical element. What is important is the fact that further communications were initiated by the defendant. This distinction was recognized in Mosley, where the Court characterized as “absurd” a-reading of Miranda which would exclude from evidence statements made after the cessation of an interrogation even if those statements “were volunteered by the person in custody without further interrogation whatever.” Mosley, 423 U.S. at 102, 96 S.Ct. 321....

Bell, 577 N.E.2d at 1238.

IV. THE CIRCUIT COURT’S ORDER

After the hearing on the motion to suppress, the circuit court entered a lengthy order with detailed findings of facts and conclusions of law. The pertinent portions of this order bear quoting at length:

G. In the case at bar the court finds the Detectives’ conduct somewhat troublesome in light of the critical factors established for determining whether Mr. Hunt’s invocation was “scrupulously honored[.”] The Court finds it clear that the Detectives initially read Miranda, and that they appeared on video to have ceased all questioning upon Mr. Httnt’s invocation. However, the Court also finds it is equally clear that the Detective’s conduct in removing a handcuffed Mr. Hunt for a smoke, staying in his constant company instead of proceeding with normal ■ arrest procedures could be interpreted as generally engaging in words or actions that they should have know[n] were reasonably likely to elicit an incriminating response. In fact, the court finds the Detectives’ actions did not embrace the spirit of “scrupulously honoring” Mr. Hunt’s invocation, but instead created an environment likely to entice Mr. Hunt into reinitiating contact. There was no evidence presented by the State that the Detectives complied with [several of the critical factors identified in Mosley]. Less than twenty minutes was not a significant passage of time, there was no rereading of Miranda, and the second period of questioning related to the exact same homicide. However, the court also finds that while the Detective may have set the stage, there is no evidence [that] Detective Waldron specifically initiated conversations referencfing] the homicide with Mr. Hunt, nor that Mr. Hunt was unwilling to take a smoke break with the officer. Instead,, the preponderance of the evidence is Mr. Hunt did in fact consent to go for a smoke and that he alone reinitiated contact reference the homicide.
J. In the case at bar Mr. Hunt made an unequivocal invocation followed by Mr. Hunt reinitiated [sic] contact with Detective Waldron during the smoke break. The Detectives never reread Mr. Hunt his Miranda rights. The failure to reread Miranda coupled with the Detectives[’] failure to “scrupulously honor” Mr. Hunt’s invocation mandate suppression of all [of] Mr. Hunt’s statements made in the [second] portion of his videotaped statement.

(Emphasis added.) Despite the obvious care and thought that went into the circuit court’s order, we agree with the State that the circuit court’s analysis of the issues went awry.

V. DISCUSSION

The correct resolution of the issues raised by Mr. Hunt’s motion to dismiss required the application of the two-step analysis discussed above. In the first step, the circuit court found that the interrogation of Mr. Hunt ceased after he initially invoked his right to remain silent at the conclusion of the first portion of the videotaped statement. According to the circuit court’s order, the detectives “appeared on video to have ceased all questioning upon Mr. Hunt’s invocation.” Indeed, there was no evidence to the contrary. The detectives did not continue the interrogation of Mr. Hunt following his initial invocation of the right to remain silent. Thus the circuit court properly proceeded to the second step of the analysis.

Under the second step of the analysis, the circuit court was required to determine who reinitiated the dialogue. The circuit court found that “there is no evidence [that] Detective Waldron specifically initiated conversations referencing] the homicide with Mr. Hunt.” In conjunction with that finding, the circuit court also made the critical finding that “the preponderance of the evidence is Mr. Hunt did in fact consent to go for a smoke and that he alone reinitiated contact reference the homicide.” There is competent, substantial evidence in the record to support both of these findings.

Once the circuit court found that it was Mr. Hunt who reinitiated the dialogue with the detectives, the circuit court was required to consider whether Mr. Hunt’s decision to change his mind and to once again waive his right to remain silent was voluntary, knowing, and intelligent. Instead, the circuit court relied heavily on Mosley to conclude that the detectives had not scrupulously honored Mr. Hunt’s right to remain silent. But because it was Mr. Hunt who reinitiated the dialogue with the detectives after he had invoked his right to remain silent, Mosley and similar eases relating to the admissibility of statements made after the interrogation is terminated and then restarted by the police are inapplicable.

VI. CONCLUSION

It follows that the circuit court applied an incorrect standard in determining whether the second portion of Mr. Hunt’s statement should be suppressed. Accordingly, we reverse the circuit court’s order to the extent that it suppressed the second portion of the statement and remand this case to the circuit court for further consideration of this issue in light of this opinion. Of course, the State has not challenged the portion of the circuit court’s order that denied the defendant’s motion to suppress the first portion of Mr. Hunt’s statement.

Since the circuit court must reconsider the issue of the admissibility of the second portion of Mr. Hunt’s statement, we offer the following additional comments for the circuit court’s guidance on remand. In reaching its ruling, the circuit court placed substantial weight on the detectives’ failure to reread the Miranda warnings to Mr. Hunt before beginning the second portion of the interview. However, the Supreme Court of Florida has refused to “adhere to an overly mechanical application of Miranda ” and has explained that “numerous state and federal courts have rejected the talismanic notion that a complete readvisement of Miranda warnings is necessary every time an accused undergoes additional custodial interrogation.” Davis v. State, 698 So.2d 1182, 1189 (Fla.1997) (citing Brown v. State, 661 P.2d 1024 (Wyo.1983)). Thus the failure to readvise a suspect of his or her Miranda rights, “in and of itself, does not mean that [the suspect’s] waiver was invalid.” Ahedo v. State, 842 So.2d 868, 871 (Fla. 2d DCA 2003). Here, Mr. Hunt was not readvised about his Miranda rights, but Detective Waldron reminded Mr. Hunt that he had said that he did not want to talk any further. Moreover, Detective Levita had advised Mr. Hunt about his Miranda rights less than an hour before the second portion of the interview began.

Reversed and remanded for further proceedings consistent with this opinion.

ALTENBERND and DAVIS, JJ., Concur.

      . We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(B).

      . The detectives apparently believed that the gun Mr. Hunt referred to was the one that had been used in the homicide that they were investigating.

      . The State filed a motion for rehearing. The circuit court denied this motion in a second order with additional findings of fact and conclusions of law.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. In the Interest of C.W., Appellee.
    No. 1D09-0025.
    District Court of Appeal of Florida, First District.
    May 22, 2009.

      Lori Lee Fehr, Department of Children and Families, Pensacola, for Appellant.
    Scott W. Tatum of Northwest Florida Legal Services, Pensacola; and Annette M. Lizardo, GAL Appellate Counsel, Statewide Guardian Ad Litem Office, Orlando, for Appellee.
   VAN NORTWICK, J.

The Florida Department of Children and Families (DCF) appeals the trial court’s order denying a petition to terminate the parental rights of T.R. to her child, C.W. This is the second appearance of this case in our court. In the first appeal, this court felt constrained to reverse the order denying termination of parental rights because “we read the order under review as stating that the trial court based its finding that termination of parental rights was not in C.W.’s best interests solely on the availability of a relative placement, in direct contravention of section 39.801(1).” Guardian Ad Litem Program v. T.R., 987 So.2d 1269, 1271 (Fla. 1st DCA 2008). We remanded to the trial court, directing the court to “again weigh all relevant factors, including those under section 39.810, to determine whether termination of parental rights is in the manifest best interests of C.W.” Id. Following an evidentiary hearing, the trial court entered a detailed order applying the facts of this case to the factors enumerated in section 39.810(1) and again concluded that termination of T.R.’s parental rights was not in C.W.’s best interests. Finding that the trial court’s order is based on competent substantial evidence, we affirm.

C.W. was placed with his maternal grandmother after his sibling was admitted to the hospital suffering from grievous injuries and it was discovered that C.W. had endured three fractured ribs that had never been treated. C.W.’s stepfather is currently serving a prison term for aggravated child abuse. C.W. has visitation with his mother, T.R.

In the order under review, the trial court found that there existed adequate grounds to terminate T.R.’s parental rights “based upon egregious abuse of [C.W.’s younger sibling], and upon evidence that [C.W.], while still very young, suffered broken ribs while in the sole care of the mother and stepfather, for which [C.W.] received no treatment or medical attention.” Nonetheless, the court concluded, after considering the factors enumerated in section 39.810, that “it is not in the manifest best interest of this child to have parental rights terminated and be placed for adoption.”

The court found that C.W. has a strong bond with his grandmother, with whom he has lived for more than half of his young life, and that she has provided him a stable and satisfactory environment. The court noted the position of the guardian ad litem “that maintaining [C.W.] in his grandmother’s custody is in his best interest, provided the grandmother does not return him to his mother” and “coneur[red] in that analysis.” The record reflects that the grandmother testified unequivocally that she would never let anyone harm her grandson and would make sure he was protected. The trial court found that adoption by the grandmother is not a viable alternative because the maternal grandfather is currently on probation for felony drug charges, which would likely disqualify the grandparents’ household as a prospective adoptive household. The trial court rejected the concept that adoption by a third party would be preferable because of the “significant and deep relationship between the child and [his grandmother].” Reviewing the options available in section 39.621(2), the court determined that the goal of the case plan should be changed to placement with a fit and willing relative.

On appeal, DCF contends that the trial court has violated the law of the case. We disagree. That doctrine “requires that questions of law actually decided on appeal must govern the case in the same court and trial court, through all subsequent proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). However, the doctrine is “limited to rulings on questions of law actually presented and considered on a former appeal.” (Emphasis supplied). Id. at 106 (quoting United States Concrete Pipe v. Bould, 437 So.2d 1061, 1063 (Fla.1983)). In this case, the trial court dutifully followed the directions of this court in Guardian Ad Litem Program v. T.R., and did not disobey or disregard any of the rulings of law made by this court. DCF simply disagrees with the ruling of the trial court, which is not a sufficient basis to warrant reversal.

We find that the trial court’s order is based on competent substantial evidence in the record and that there is no basis upon which this court should reverse. See Fla. Dep’t of Children and Family Servs. v. A.Q., 937 So.2d 1156, 1158 (Fla. 3d DCA 2006). Our standard of review of the trial court’s order is “highly deferential.” N.L. v. Dep’t of Children and Family Servs., 843. So.2d 996, 999 (Fla. 1st DCA 2003).

AFFIRMED.

KAHN, and WOLF, JJ., concur.

      . (2) The permanency goals available under this chapter, listed in order of preference, are:
      (a) Reunification;
      (b) Adoption, if a petition for termination of parental rights has been or will be filed;
      (c) Permanent guardianship of a dependent child under s. 39.6221;
      (d) Permanent placement with a fit and willing relative under s. 39.6231; or
      (e) Placement in another planned permanent living arrangement under s. 39.6241.


author: COBB, W., Senior Judge.

text:
    FLORIDA EYE CLINIC, P.A., Petitioner, v. Mary T. GMACH, Respondent.
    No. 5D09-64.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.
    Rehearing Denied Aug. 20, 2009.
    Shelley H. Leinicke, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for Petitioner.
    Jason J. Reeksiedler of Stump Webster Law, Orlando, for Respondent.
   COBB, W., Senior Judge.

The petitioner, Florida Eye Clinic, P.A. (FEC), seeks certiorari review of a discovery order obtained by the plaintiff, Mary T. Gmach, in a medical malpractice action on the basis that said order will cause it irreparable harm that cannot be corrected by post-trial appeal. At issue are incident reports concerning complaints of infections and related investigations at the FEC facility over a four-year period from 2002 to 2006.

This petition implicates the work-product doctrine, attorney-client privilege, and the breadth and burden of the requested discovery. Our decision concerns the interpretation and application of article X, section 25 of the Florida Constitution, which is entitled “Patients’ right to know about adverse medical incidents.” This provision was passed by the voters in November 2004 as amendment 7. See Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 480-81 & n. 1 (Fla.2008). It provides:

(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the following meanings:
(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.

Fla. Const, art. X, § 25.

During the course of discovery Gmach served a request for production of documents seeking, inter alia, incident reports concerning complaints of infections and related investigations at the FEC facility over the four-year period. On July 1, 2008, FEC responded by objecting to the discovery on the bases of work-product and attorney-client privilege; it also contended that the information sought was overly broad, not limited to a reasonable time, and would be unduly burdensome to obtain.

Gmach filed a motion to compel or for in camera inspection, which resulted in an order dated September 2, 2008, limiting the scope of production to a two-year period, and ordering that FEC either produce the requested documentation or file a privilege log. Having learned that FEC intended to file a privilege log instead of producing the documents, Gmach once again filed a motion to compel or, alternatively, for in camera inspection. Gmach argued that any privilege had been waived and that she was entitled to incident reports pursuant to the Florida Constitution as well as supporting case law. On September 19, 2008, FEC filed a privilege log asserting only a work-product privilege.

On November 19, 2008, a hearing was held on Gmach’s motion to compel the production of documents. FEC supported its position with the affidavit of its risk manager, Rebecca Traynor, in which she asserted:

8. This document is created in anticipation of litigation, in order to make sure that all of the information concerning an investigation of wound infection is memorialized at or near the time of the event occurring, so that accurate information will be available to defense counsel in the event that a lawsuit is filed arising out of the wound infection chronicled.
13. It is designed to provide information concerning an ongoing investigation at or near the time the investigation occurs, so that we can utilize this document with counsel in defense of any lawsuit that is filed arising out of an event that occurs at the Ambulatory Surgical Center.

The trial court concluded that in light of section 25 “the privilege is no longer there” and issued the following order:

ORDER COMPELLING PRODUCTION OF DOCUMENTS

THIS CAUSE came before the Court on the Plaintiffs Motion to Compel or Motion for in Camera Inspection filed on August 28, 2008 and the Defendant’s Privilege Log filed in response on September 22, 2008. The Court, having considered the motion and privilege log and being fully advised in their premises, finds
1. The Defendant was ordered on September 2, 2008 to produce documents including incident reports concerning incidents of infection of any type that were investigated or complained of from a one year period [sic] starting on September 28, 2003 and ending on September 28, 2005.
2. The documents, including the investigations into possible infections and the quality improvement reports associated with those incidents, are of a character which meets the classification of “self-policing processes” identified as subject to discovery under Art. X, § 25 of the Florida Constitution in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008).
3. The work product privilege with respect to those items disclosed in the Defendant’s Privilege Log is superseded by Art. X, § 25 of the Florida Constitution and the Court’s ruling in Buster.
4. The documents in question are subject to the discovery process and should be turned over to the Plaintiff.

FEC then filed the instant certiorari petition.

In Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008), the Florida Supreme Court undertook, inter alia, review of the certified questions articulated by this court in Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006). The supreme court also addressed the First District Court’s opinion in Notami Hospital of Florida, Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006). In Bowen, the First District Court agreed with this court that amendment 7 was self-executing; however, it also concluded that amendment 7 was retroactive, which placed it in direct conflict with this court. The court in Boiven further concluded that the legislation implementing amendment 7, section 381.028, Florida Statutes, was unconstitutional in its entirety-

The supreme court ultimately agreed with this court that amendment 7 was self-executing; however, it concluded that this court had incorrectly ruled that amendment 7 had prospective application only. See Buster, 984 So.2d at 494. (“We also hold that the right of access granted pursuant to the amendment is retroactive and therefore applies to adverse medical incident records existing prior to its effective date of November 2, 2004.”). Notably, the supreme court also disagreed with the First District Court’s conclusion in Boiven that the implementing legislation, section 381.028, was unconstitutional in its entirety. Id. Instead, the supreme court concluded that the unconstitutional sections could be severed from the legislation, while the remaining valid portions could be left standing. Id.

The supreme court’s opinion in Buster provided no express commentary regarding the impact of amendment 7 on traditional, common law privileges such as the work-product and attorney-client privileges. However, with respect to this issue, it is noted that prior to the November 2004 election, the supreme court was asked to provide an advisory opinion regarding the legality of the proposed amendment 7. See Advisory Opinion to the Attorney General Re: Patients’ Right to know About Adverse Medical Incidents, 880 So.2d 617, 618 (Fla.2004). In that opinion, the supreme court addressed the potential impact of amendment 7 on the work-product doctrine as follows:

Contrary to the clear effect upon [sections 395.0193(8) and 766.101(5), Florida Statutes], the amendment does not expressly affect either rule 1.280(c) [containing the work-product privilege] or the attorney-client privilege, and there is no evidence of any intent to do so. Any effect on the rule or the privilege is purely speculative; and, even if true, any such effect would not rise to the level of “substantially” altering or performing a function of the judiciary.

Id. at 621 (footnote omitted). The supreme court also stated the following in the same opinion:

Opponent asserts that the title and summai’y do not inform the voters that the amendment restricts the power of the judiciary to establish procedural rules and to regulate attorneys. The basis for this argument is the effect that the amendment would have on work product and the attorney-client privilege. We reject this argument. The amendment will affect this Court’s procedural rules only to the extent that certain records currently classified as work product may have to be disclosed to certain persons. As we stated earlier, any effect on the attorney-client privilege is speculative.

Id. at 622 (emphasis added).

Since the supreme court’s opinion in Buster, several circuit courts have weighed in on this issue, with the bulk of them concluding that the privilege still exists. See Robert C. Weill, Buster and the Con- tinning Saga Over the Patients’ Right-To-Know-Abontr-Medical-Incidents-Am.endment, 28 Trial Advocate Quarterly 14 (2009) (citing circuit court orders from four different counties that held the work-product privilege remains intact, but noting at least one circuit court has reached the opposite conclusion).

In the instant petition, FEC asserts that the trial court’s order must be quashed because it departs from the essential requirements of the law, causing material injury which cannot be remedied on appeal. In particular, FEC contends that the passage of amendment 7 did not eliminate the applicability of the work-product privilege with respect to discovery requests. FEC argues that Buster and related cases recognize that amendment 7 served only to eradicate statutory privileges associated with the “self-policing processes” of health care providers, while having no impact on the work-product privilege, which is an outgrowth of the common law. FEC further notes that a number of circuit courts have concluded that the work-product privilege remains intact despite amendment 7.

In her response, Gmach argues that amendment 7 preempts the work-product privilege where a litigant seeks the production of an adverse medical incident report. Gmach contends that this conclusion is supported by the plain language of the amendment, and she further argues that “[t]he reasoning put forth in both [Buster ] opinions can be applied to and fully supports Gmach’s contention that the constitutional amendment preempts Defendants work-product privilege objection to producing the requested documentation in the instant matter.”

We note that the incident reports sought by Gmach in the instant case may have been protected by the work-product privilege prior to the passage of amendment 7. See Healthtrust, Inc. v. Saunders, 651 So.2d 188, 189 (Fla. 4th DCA 1995) (“Hospital incident reports are part of the work-papers of the attorney defending a licensed facility in litigation and are subject to discovery upon a showing of need and inability without undue hardship to obtain the substantial equivalent by other means.”); see also 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935, 938 (Fla. 4th DCA 2002). The trial court, nevertheless, concluded that amendment 7 superseded the work-product privilege because the documents disclosed in FEC’s privilege log “are of a character which meets the classification of ‘self-policing processes’ identified as subject to discovery under Art. X, § 25 of the Florida Constitution in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008).” We agree, insofar as we conclude that the plain language of amendment 7 evinces an intent to abrogate any fact work-product privilege that may have existed prior to the passage of amendment 7. See Benjamin v. Tandem Healthcare, Inc., 998 So.2d at 566, 570 (Fla.2008) (“In interpreting a constitutional amendment, we begin with the amendment’s plain language.”).

Amendment 7 expresses a clear intent that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Fla. Const, art. X, § 25(a). Moreover, article X, section 25(c)(3), defines the term “adverse medical incident” to include any “incidents that are reported to or reviewed by any ... risk management ... committee, or any representative of any such committees.” Here, the incident reports requested by Gmach were prepared by the risk manager for FEC “in order to make sure that all of the information concerning an investigation of wound infection is memorialized at or near the time of the event occurring, so that accurate information will be available to defense counsel in the event that a lawsuit is filed arising out of the wound infection chronicled.” Given the language of section 25, it seems clear that the incident reports in this case are the type of reports contemplated by amendment 7. These reports were never reviewed by defense counsel prior to the instant litigation.

The facts presented in this case do not implicate the distinction that exists between fact work product and opinion work product. This distinction was explained by the Third District Court in State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986):

Work product can be divided into two categories: “fact” work product (i.e., factual information which pertains to the client’s case and is prepared or gathered in connection therewith), and “opinion” work product (i.e., the attorney’s mental impressions, conclusions, opinions, or theories concerning his client’s ease). In re Sealed Case, 676 F.2d 793, 810-11 (D.C.Cir.1982). A clear distinction has been drawn between these two types of work product with respect to the degree of protection provided. Western Fuels Association v. Burlington Northern Railroad, 102 F.R.D. 201, 204 (D.Wyo.1984). Generally, fact work product is subject to discovery upon a showing of “need,” whereas opinion work product is absolutely, or nearly absolutely, privileged. The difference between the degrees of protection given oral and written statements is based partially upon this distinction between fact and opinion work product. Compelling disclosure of the attorney’s notes or memoranda of oral statements tends to reveal an attorney’s opinion work product. Upjohn Co. [v. United Sates, 449 U.S. 383, 399-401, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ]; In re Grand Jury Investigation, 599 F.2d [1224, 1231 (3d Cir.1979) ].
The protection of an attorney’s mental process is essential to the proper functioning of the adversary system. The possibility that an attorney’s work -product might be revealed, even in later unrelated causes, may deter the attorney from freely recording his mental impressions, conclusions, theories, or opinions. DuPlan Corp. [v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 734-36 (4th Cir.1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975) ]. Moreover, this privacy interest is equally implicated where, as here, disclosure is sought pursuant to an investigative subpoena as it is where disclosure is being sought pursuant to a discovery request. Cf., e.g., In re Grand Jury Proceedings, 473 F.2d 840, 847 (8th Cir.1973) (“The interest in protecting work product which prevails in [a] ... criminal proceeding should, for the same policy reasons, prevail in [a grand jury proceeding].”).

Id. at 262-63 (footnotes omitted) (emphasis added).

In the present case, it is clear that the adverse incident reports in question were never reviewed by counsel. According to the affidavit of the risk manager they were “created in anticipation of litigation, in order to make sure that all of the information concerning an investigation of wound infection is memorialized at or near the time of the event occurring, so that accurate information will be available to defense counsel in the event that a lawsuit is filed arising out of the wound infection chronicled.” (emphasis added). Thus, it is clear that the reports did not contain any attorney’s mental impressions, conclusions, opinions, or theories concerning his client’s case (i.e., any opinion work product). In fact, it appears relatively clear that at the time of the creation of the reports, defense counsel had not even been consulted and would not likely be consulted until a lawsuit was filed.

In any event, it seems that to the extent the reports truly were “created in anticipation of litigation,” they would still not amount to anything more than fact work product due to their failure to contain any mental impressions, conclusions, opinions, or theories of FEC’s defense counsel. As noted above, the reports at issue are the types of reports that amendment 7 was designed to encompass. It would thwart the intent of the voters to allow FEC to circumvent amendment 7 by now asserting a fact work-product privilege in response to Gmach’s discovery request. Accordingly, the trial court correctly concluded that, in the context of this case, a fact work-product privilege is unavailable because of amendment 7. Another result might have been mandated had the reports at issue included the mental impressions, conclusions, opinions, or theories of an attorney’s case. We do not read amendment 7 as evincing an intent from the voters to eliminate the privilege of opinion work product. There is no indication from either section 25, the ballot summary, or the statement and purpose to the amendment that the voters intended for amendment 7 to provide patients not only a right to access records of any adverse incident report prepared in the course of a medical facility’s business, but also of any such reports that include an attorney’s mental impressions, conclusions, theories, or opinions. It is hard to imagine that the voters contemplated the potential chilling effect that may result in the legal community if an attorney’s mental impressions contained in such a report could be made readily available to a requesting patient under the amendment.

In approving amendment 7, the citizens of Florida have demonstrated their conclusion that a patient’s right to obtain records made in the course of business by a health care provider is a more important consideration than the chilling effect created by the potential public disclosure of those records. See Amisub N. Ridge Hosp., Inc. v. Sonaglia, 995 So.2d 999 (Fla. 4th DCA 2008). On the other hand, nothing in the passage of amendment 7 indicates an intent amongst the voters to create the same chilling effect within the legal profession by mandating the disclosure of any adverse medical incident reports containing the mental impressions, conclusions, theories, or opinions of an attorney (i.e., opinion work product). See Rabin, 495 So.2d at 263. Therefore, the instant petition is denied because the adverse medical incident reports sought by Gmach are the types of report that appear to be specifically contemplated by the voters’ passage of amendment 7. We note that any attempt by FEC to challenge the discovery by now claiming that the reports constitute fact work product would be an improper attempt to circumvent the clear will of the people.

PETITION DENIED.

TORPY and COHEN, JJ., concur-.


text:
    Luz Angela LACKNER, Appellant, v. CENTRAL FLORIDA INVESTMENTS, INC., Appellee.
    No. 5D07-3542.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.
    Rehearing Denied July 2, 2009.

      Nicholas A. Shannin, of Page, Eichen-blatt, et al., Orlando, for Appellant.
    Victor Kline, Myrna Maysonet of Green-spoon, Marder, P.A., Orlando and Richard W. Epstein, of Greenspoon Marder, P.A., Fort Lauderdale, for Appellee.
   COBB, W., Senior Judge.

In this case we are confronted with an “appeal” from a “Final Judgment in Favor of Defendant” signed on September 20, 2007, by one James E. Glatt, Jr., apparently acting as a General Magistrate, although that capacity is not designated on the face of the document. This “judgment” was issued by Magistrate Glatt after he entered a directed verdict at the conclusion of the plaintiff’s case in a jury trial involving an action for slander. Jurisdictional concerns prompted this court to withdraw our previous opinion of April 9, 2009, and order supplemental briefs from the parties. We now issue the following opinion in place of the original.

From the supplemental briefs, it appears that it is the standing practice maintained by the Ninth Judicial Circuit to permit magistrates, on select occasions, to assist with the heavy overload of cases by presiding over civil jury trials. As the parties have observed, there is no Florida authority, decisional or statutory, directly addressing whether a magistrate may preside over a civil jury trial with the consent of the parties. However, having undertaken an exhaustive consideration of the relevant authorities, we conclude that magistrates may not preside over a civil jury trial in the absence of express authorization by statute or rule of procedure.

Florida Rule of Civil Procedure 1.490 authorizes judges of the circuit court to appoint general and special magistrates. General magistrates continue in office until removed by the court and must take the oath of office required of officers by the Constitution. No matter can be referred to a magistrate without the parties’ consent. Fla. R. Civ. P. 1.490(a)-(c) (2009). A magistrate’s general powers and duties are defined in subsection (d), which states in relevant part: “Every magistrate shall perform all of the duties that pertain to the office according to the practice in chancery and under the direction of the court.” Fla. R. Civ. P. 1.490(d). Focusing on the word “all,” the Appellant Lackner asserts that this provision should be interpreted to permit a magistrate to perform all functions of the trial court, including presiding over jury trials. This argument ignores the last part of the sentence, which limits a magistrate to those duties “that pertain to the office according to the practice in chancery and under the direction of the court.” Id. The first part of this phrase seems to confine a magistrate to those duties traditionally exercised by magistrates in chan-eery, which largely consisted of taking witness testimony. The second part of the phrase clearly specifies that a magistrate’s duties must be performed under the direction of the court. These two limitations weigh against interpreting the rule to permit a magistrate to preside over a jury trial, especially when considered in the context of the rest of rule 1.490.

Subsection (f) sets out the procedures for conducting hearings before a magistrate and taking evidence at the hearing. The provision authorizes a magistrate to examine the parties and witnesses under oath and to “take all actions concerning evidence that can be taken by the court and in the same manner.” Fla. R. Civ. P. 1.490(f). The final two subsections require the magistrate to file a report containing its findings and provide that a party may serve exceptions to the report within 10 days from the time the report was served on them. Fla. R. Civ. P. 1.490(g)-(e). The rule concludes by stating: “If no exceptions are filed within that period, the court shall take appropriate action on the report. If exceptions are filed, they shall be heard on reasonable notice by either party.” Fla. R. Civ. P. 1.490(e).

Nothing in rule 1.490 expressly authorizes a magistrate to conduct a jury trial. On the contrary, the rule seems to contemplate that a magistrate will be utilized only to take evidence and issue recommended findings and rulings. It is then the duty and sole province of the trial court to review the magistrate’s report and render a final ruling, order, or judgment. To interpret the rule otherwise and permit magistrates to conduct jury trials in the absence of an express grant of authority would constitute an impermissible delegation of judicial authority.

Article V of the Florida Constitution vests judicial power exclusively in the courts. The authority to conduct jury trials is implicit in the judicial power, and the Legislature has made it explicit by statute. Section 40.001, Florida Statutes (2008),' provides in relevant part: “The chief judge of each judicial circuit is vested with overall authority and responsibility for the management, operation, and oversight of the jury system within his or her circuit.” Judicial powers vested in the courts by constitution or statute are nondelegable. As the court in Bell v. Bell, 307 So.2d 911 (Fla. 3d DCA 1975), explained:

Under Rule 1.490, RCP, a circuit judge may appoint masters and refer certain matters to them as a matter of procedure. However, “The judicial power ... (is) not delegable and cannot be abdicated in whole or in part by the courts.” In re Thompson’s Estate, [145 Fla. 42, 199 So. 352, 355 (Fla.1940) ]. Exclusive original jurisdiction of equity cases being vested in the courts, “... a consideration of the advantages and practicalities of the master system must be restricted by the knowledge that there is no organic provision for delegation by the Court to a master of any of the Court’s power.” Slatcoff v. Dezen, [74 So.2d 59, 63 (Fla.1954) ].... Even when no exceptions are made to the master’s report, entry of a final judgment in accordance with the master’s findings and recommendations is not a mere formality. Rather, the court is duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether under the law and the facts the court is justified in entering the judgment recommended by the master.

Id. at 914. In De Clements v. De Clements, 662 So.2d 1276 (Fla. 3d DCA 1995), the court added: “This duty, which has its origins in, and is guaranteed by, the Florida Constitution, reflects the axiom that the trial judge is the only elected constitutional officer with the organic right to determine a litigant’s case.” Id. at 1283 & n. 16 (citing Art. I, §§ 9, 21-22, Fla. Const.; Art. V, §§ 5-6, Fla. Const.; Bell, 307 So.2d at 914-15). Although Bell and De Clements did not involve jury trials, these general principles weigh against interpreting rule 1.490 to permit a magistrate to conduct a jury trial. See also Powell v. Weger, 97 So.2d 617, 619 (Fla.1957) (explaining that an entire case cannot be referred to a master without the parties’ consent because the constitution vests exclusive original jurisdiction for equity cases in the circuit courts and “there is no constitutional provision affirmatively authorizing the delegation of any of the court’s powers to a master.”).

Other cases addressing delegation further support the conclusion that magistrates may not conduct jury trials. For example, in Jones v. State, 749 So.2d 561 (Fla. 2d DCA 2000), the court held that while a judge can delegate the task of excusing jurors who were either prohibited from serving or permitted to refuse to serve by statute, a judge cannot delegate to the clerk its discretionary authority to excuse jurors under other provisions of the same statute. In Cove Cay Village IV Condominium Ass’n v. Plymouth Development Corp., 561 So.2d 307, 308 (Fla. 2d DCA 1990), the court held that the trial court could not delegate to a zoning board the responsibility of determining the size and legal description of land that was the corpus of the trial court’s constructive trust. The court in Cove Cay Village IV cited Fletcher v. State, 405 So.2d 748 (Fla. 2d DCA 1981), which held that a court cannot delegate the determination of the amount of restitution to a probation supervisor, and Woolf v. Reed, 389 So.2d 1026 (Fla. 3d DCA 1980), which held that a court cannot delegate its judicial authority to an administrator ad litem. If a trial court cannot delegate the types of duties discussed in these cases without contravening the constitution, it is highly unlikely that a court could delegate a duty as significant as conducting a jury trial.

Even if it were not an improper delegation of judicial authority to allow a magistrate to preside over a jury trial, the magistrate in the present case was not authorized to preside over a trial at all— jury or nonjury. The parties filed a written stipulation stating they consented “to the Referral to the General Magistrate of all matters and issues set forth in the Order of Referral herein.” The order referring the case to the general magistrate reflected that “[a]ll pending motions” and “any other matters related thereto” were being referred. Significantly, while the form order contained several other matters that could specifically be referred, such as a nonjury trial, enforcement, pretrial conference, discovery motions, or status hearing, only the pending motions option was marked and selected by the court.

The law is clear that a general master may not go beyond the matters referred to him for determination by the trial court, and that if a general master reports as to a matter which was not referred to him by the trial court, his report so far as it relates to that matter is a nullity.

Waszkowski v. Waszkowski, 367 So.2d 1113, 1113 (Fla. 3d DCA 1979); see also Sniffen v. Sniffen, 382 So.2d 823 (Fla. 4th DCA 1980) (same); Koenig v. Watsco, Inc., 261 So.2d 851 (Fla. 3d DCA 1972) (same). Thus, any actions taken by the magistrate in this case that exceeded the scope of the referral, such as conducting the trial, were a nullity.

The problem in the present case is compounded by the fact that the magistrate did not issue a report or recommendation. Instead, he purported to render a final judgment in favor of Central Florida Investments, which stated in relevant part:

This action was tried before the Court and jury. At the conclusion of Plaintiffs case-in-chief on the issues of liability and after consideration of all the evidence and testimony presented at trial, the Court granted Defendant’s Motion for Directed Verdict on Count IV (Defamation) of Plaintiffs Second Amended Complaint and thereafter entered its Order on Defendant’s Motion for Directed Verdict as to Count IV on Sept. 18, 2007 nunc pro tunc Aug. 23, 2007. The parties have stipulated to dismiss Counts I, II and III of Plaintiffs Second Amended Complaint without prejudice.

There is nothing in the record to suggest that this “final judgment” was ever adopted, ratified, or otherwise approved by the trial court. In other words, no appeal-able final order was ever rendered by the trial court; therefore, this court lacks jurisdiction to review the merits of the issues presented on appeal. See, e.g., E.S. v. Dep’t of Children & Families, 836 So.2d 1089 (Fla. 1st DCA 2003) (dismissing for lack of jurisdiction because order appealed merely ratified master’s findings and therefore was not a final or nonfinal ap-pealable order); Grafman v. Grafman, 488 So.2d 115 (Fla. 3d DCA 1986) (dismissing for lack of jurisdiction because the order, which rescinded an order referring the matter to a master, was not a final or nonfinal appealable order). As the opinions in these cases demonstrate, however, this court does have jurisdiction to determine the issue of its own jurisdiction. See Swaim v. State, 803 So.2d 797, 798-99 (Fla. 5th DCA 2001) (explaining that an appellate court has jurisdiction to determine its own jurisdiction, both as to the parties and subject matter); cf. Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083 (Fla. 5th DCA 2007) (observing that prohibition cannot be used to divest a lower court of jurisdiction to hear and determine the issue of its own jurisdiction).

In sum, there is no Florida authority either expressly permitting or prohibiting a magistrate from conducting a civil jury trial with the parties’ consent. However, the relevant state constitutional provisions, statutes, rules, and interpreting decisions indicate that such a practice is not permitted in the absence of an express grant of authority by statute or rule of procedure. Even if permitted by rule or statute, the order referring the case to the magistrate would also have to specifically grant the authority to preside over the jury trial, and the final order or judgment would have to be entered by the trial court. Therefore, the magistrate in the present case was not authorized to preside over the jury trial or enter the final judgment, and both were a nullity. Accordingly, the final judgment must be vacated and the cause remanded for proceedings before a circuit judge, including a jury trial if appropriate.

VACATED and REMANDED.

MONACO and EVANDER, JJ., concur.

      . The historical context of the rule supports this interpretation. As the authors' comment explains, the rule is based on the old Chancery Act and "the former practice in equity was usually to have testimony taken before a master or special examiner." Fla. R. Civ. P. 1.490 (1967 authors' comment); see also Fla. S. Gov't Oversight & Productivity Comm., Judiciary Comm., CS for SB 192 (2003) Staff Analysis 1-5 (January 22, 2004) (noting that prior to 1972, the magistrate system was largely synonymous with small claims court, county court, or court of record) [hereinafter Staff Analysis], To clarify, in view of the modern merger of law and equity, we do not interpret the rule to mean that a magistrate can only be used in chancery (equity) cases.

      . The court in Bell held it was error to refer a matter to a master over one party’s objection and to later refer,that party’s exceptions to another master. Bell v. Bell, 307 So.2d 911 (Fla. 3d DCA 1975). In De Clements, the court held it was error to ratify a master's report when the master failed to make a record of the proceedings. De Clements v. De Clements, 662 So.2d 1276 (Fla. 3d DCA 1995). Here, it is worth noting that the Legislature amended the Florida Statutes in 2004 to replace the term "magistrate” with “trial court judge,” and "master” with "magistrate” to reflect the 1972 amendments .to Article V of the Florida Constitution, eliminating specialty courts. See Staff Analysis at 1-2. The rules of procedure were amended to conform to the statutory changes. See Amendments to the Fla. Rules of Appellate Procedure, 887 So.2d 1090 (FIa.2004). In contrast, the federal system contains both masters and magistrates. Masters are essentially special magistrates; they are used for limited purposes and, after rule revisions in 2003, may not preside over jury trials. See Fed. R. Civ. P. 53 (2008). Federal magistrates, on the other hand, serve as full-time judicial officers who may, with the parties’ consent, conduct all proceedings in civil jury and nonjury cases, including ordering entry of judgment when specially des- • ignated to exercise such jurisdiction by the district court. See 28 U.S.C. § 636 (2008); Fed. R. Civ. P. 73.


author: LaROSE, Judge.

text:
    Euryia MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2650.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
   LaROSE, Judge.

Euryia Mobley appeals the summary denial of his rule 3.850 motion seeking relief from his conviction for possession of a firearm by a convicted felon. See § 790.23, Fla. Stat. (2004). We find merit in one of Mr. Mobley’s claims and, consequently, reverse as to that claim. We affirm, without further discussion, the other claims raised by Mr. Mobley.

Police officers executed an arrest warrant for Mr. Mobley after he failed to report to his probation officer. Mr. Mob-ley barricaded himself inside his girlfriend’s house; he refused to come out. Entering through an unlocked door, five officers swept through the house. Eventually, they found Mr. Mobley hiding in a bathroom. The door opened and a dog ran out. Next, Mr. Mobley’s girlfriend exited the bathroom and an officer took her outside. Several minutes later, Mr. Mobley came out.

The officers handcuffed him, took him outside, and secured him in a patrol car. Corporal Thurman went back inside the house, ostensibly to see if anyone else was in the bathroom. Upon entering that room, he saw the butt of a gun protruding from a makeup bag. Ultimately, Mr. Mob-ley was convicted for possession of a firearm by a convicted felon. We affirmed his direct appeal. See Mobley v. State, 928 So.2d 348 (Fla. 2d DCA 2006) (table decision).

In his postconviction motion, Mr. Mobley alleges that his lawyer was ineffective for failing to move to suppress the gun. According to Mr. Mobley, the post-arrest search of the bathroom and seizure of the gun were illegal. The postconviction court disagreed, concluding that the officers could conduct a visual sweep after Mr. Mobley’s arrest. We review this legal conclusion de novo. See Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008).

Section 901.21, Florida Statutes (2004), provides:

(1) When a lawful arrest is effected, a peace officer may search the person arrested and the area within the person’s immediate presence for the purpose of:
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits of a crime.
(2) A peace officer making a lawful search without a warrant may seize all instruments, articles, or things discovered on the person arrested or within the person’s immediate control, the seizure of which is reasonably necessary for the purpose of:
(a) Protecting the officer from attack;
(b) Preventing the escape of the arrested person; or
(c) Assuring subsequent lawful custody of the fruits of a crime or of the articles used in the commission of a crime.

Corporal Thurman returned to the bathroom for a “protective sweep” even though all occupants of the house were outside. On the facts before us, we see no lawful reason for a warrantless search of the bathroom.

Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), is strikingly similar. In Buie, police went to Mr. Buie’s house to arrest him. Id. at 328, 110 S.Ct. 1093. Several officers fanned out through the first and second floors. Id. Mr. Buie came out from the basement. He was arrested, searched, handcuffed, and taken from the house. Id. An officer returned to the basement “in case there was someone else” there. Id. The officer found evidence of a robbery that was used to convict Mr. Buie. Id. “[UJntil the point of Buie’s arrest the police had the right, based on the authority of the arrest warrant, to search anywhere in the house that Buie might have been found, including the basement.” Id. at 330, 110 S.Ct. 1093. If the officer’s entry into the basement was lawful, the seizure of the evidence — which he had probable cause to believe was evidence of a crime and which was in plain view — was also lawful. Id. The issue was whether the Fourth Amendment allowed the officer to enter the basement after Mr. Buie’s arrest. Id.

A protective sweep, aimed at protecting the arresting officer, may be conducted only when the officer “possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 337, 110 S.Ct. 1093; see also Runge v. State, 701 So.2d 1182 (Fla. 2d DCA 1997). Such a sweep must last “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335-36, 110 S.Ct. 1093; see also Nolin v. State, 946 So.2d 52, 56 (Fla. 2d DCA 2006). “[TJhe purpose of such a search when an arrest takes place is to check for possible accomplices, not evidence, and is justified only if necessary to allow officers to carry out the arrest without fear of violence.” State v. Parker, 399 So.2d 24, 29 (Fla. 3d DCA 1981). In Buie, the search occurred after “Buie was safely outside the house, handcuffed and unarmed.” Buie v. State, 314 Md. 151, 550 A.2d 79, 86 (1988). The officer who conducted the post-arrest search “supplied no explanation for why he might have thought another person was in the basement.” Buie, 494 U.S. at 338, 110 S.Ct. 1093 (Justice Stevens, concurring).

As in Buie, Corporal Thurman entered the bathroom after Mr. Mobley was arrested and safely in a patrol car. Recall, too, that the officers had already escorted Mr. Mobley’s girlfriend outside. Our record offers no reason why the officers thought another person was in the bathroom. Mr. Mobley’s arrest was complete and the officers simply could have left. A motion to suppress certainly had merit in light of Buie, a case decided fourteen yeai’s before Mr. Mobley’s arrest. We can discern no reason why counsel failed to file a suppression motion. But for the “protective sweep” of the bathroom, there would have been no evidence that Mr. Mobley possessed a firearm.

On appeal from a summary denial of a postconviction claim of ineffective assistance of counsel by failing to file a motion to suppress, we must reverse unless the record shows conclusively that Mr. Mobley is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A); McDuffy v. State, 837 So.2d 590, 591 (Fla. 2d DCA 2003) (reversing denial where record contained no facts sufficient to warrant reasonable belief that home harbored dangerous criminals to justify protective sweep). The record before us indicates that Mr. Mobley’s trial counsel performed deficiently, to Mr. Mobley’s prejudice. Therefore, we reverse and remand for an evidentiary hearing or other appropriate relief with respect to this claim.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WHATLEY, JJ., Concur.

      . If a peace officer fails to gain admittance after she or he has announced lier or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where.the person to be arrested is or is reasonably believed to be.
      § 901.19(1), Fla. Stat. (2004).

        . The Slate does not argue that the officers could return to the bathroom to search for evidence of a crime. We note, however, that Mr. Mobley initially was arrested for failing to report to his probation officer. We cannot imagine what evidence relating to his alleged violation of probation would have been found in the bathroom. See Arizona v. Gant,-U.S. -,-, 129 S.Ct. 1710, 1719-21, 173 L.Ed.2d 485 (2009).


author: SILBERMAN, Judge.

text:
    Raymond A. BRACERO, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D07-5763, 2D07-5764, 2D07-5765.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.

      James Marion Moorman, Public Defender, and Lynda B. Barack, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

In these consolidated appeals, Raymond A. Bracero challenges his sentences imposed upon revocation of probation in three circuit court cases regarding three separate charges of trafficking in cocaine. Bracero argues that the trial court erred in sentencing him to a period of incarceration greater than the suspended portion of his original true split sentences. We agree and reverse Bracero’s sentences and remand for resentencing.

Bracero committed the trafficking offenses in 2002, and the trial court originally imposed concurrent sentences of 108 months in prison, suspended, with 108 months of probation. Upon revocation of probation, the trial court imposed concurrent sentences of 126 months in prison.

Bracero then filed a motion to correct sentencing error in the trial court and contended that his sentences were illegal because the trial court imposed a period of incarceration greater than the suspended portion of the original true split sentences. In denying the motion, the trial court stated that the cases Bracero relied upon, such as Poore v. State, 531 So.2d 161 (Fla.1988), superseded by statute on other grounds as recognized in Crews v. State, 779 So.2d 492, 493-94 (Fla. 2d DCA 2000), were inapplicable because they dealt with “Sentencing Guidelines” cases and not cases governed by the “Criminal Punishment Code.” The court observed that Bracero’s offenses were committed in 2002 and were governed by the Criminal Punishment Code. See § 921.002, Fla. Stat. (2002) (stating effective date of October 1, 1998, for the Criminal Punishment Code). The court stated that section 921.002(l)(g) allows “the Court to impose a sentence up to and including the statutory maximum for any offense before the Court due to a violation of probation” and denied Bracero’s motion. The trial court did not address double jeopardy concerns in denying the motion and did not cite any cases to support its conclusion.

On appeal, the State all but concedes that the trial court erred in sentencing Bracero to a period of incarceration that exceeds the suspended portion of the true split sentence. The State draws our attention to Mack v. State, 823 So.2d 746, 748 n. 3 (Fla.2002), which Bracero had cited to the trial court. In Mack, the supreme court stated as follows:

In Poore v. State, 531 So.2d 161, 164 (Fla.1988), we explained that when a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.

Id. The State cites to no cases that suggest that this double jeopardy issue does not apply to cases under the Criminal Punishment Code.

In a case in which the defendant was originally sentenced in July 2000, this court reiterated its statement in Crews that “[i]f a trial court intends to impose the maximum period of imprisonment for a violation of the probationary portion of a true split sentence, it should impose the full original sentence of incarceration with credit for time served.” Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007) (quoting Crews, 779 So.2d at 493). Cases from other districts also reflect that the double jeopardy concerns explained in Poore remain an issue in sentencing.

In Ferrell v. Lamberti, 987 So.2d 771 (Fla. 4th DCA 2008), the defendant entered his plea and was originally sentenced in 2004. The Fourth District stated, “When a defendant violates probation after being sentenced to a true split sentence, the judge may not order new incarceration exceeding the remaining balance of the withheld or suspended portion of the original sentence.” Id. at 772.

In Boone v. State, 967 So.2d 999 (Fla. 5th DCA 2007), the defendant entered into a plea bargain and was originally sentenced in 2000. The Fifth District stated, “Because Boone was initially given a ‘true split sentence,’ he could not be sentenced upon revocation of his probation to a period that exceeded the original ten-year sentence, with credit for time served.” Id. at 1000-01.

Here, the trial court erred in sentencing Bracero upon revocation of probation to sentences of 126 months when the oi’iginal split sentences imposed only 108 months. Therefore, we reverse his sentences and remand for resentencing that does not exceed “the full original sentence of incarceration with credit for time served.” Pressly, 968 So.2d at 1058 (quoting Crews, 779 So.2d at 493).

Sentences reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


author: WHATLEY, Judge.

text:
    Jill STRONG, Petitioner, v. Matthew OCHS, Respondent.
    No. 2D09-1020.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
    Susan Hartmann Swartz, Law Office of Stanley R. Swartz, Bradenton, for Petitioner.

      Joseph R. DeCiantis, Joseph R. DeCian-tis, P.A., Venice, for Respondent.
   WHATLEY, Judge.

Jill Strong seeks a •writ of prohibition to prevent a county judge from presiding over her family law case and a writ of mandamus to compel someone other than the chief judge or the presiding circuit court judge to reassign her case to a different division in the circuit court. We dismiss the petition for writ of prohibition for lack of jurisdiction. We dismiss the petition for writ of mandamus as there is no authority for mandamus relief in the manner sought by Strong.

Both petitions arise from the reassignment of a family law case filed in Division H of the Circuit Court for Sarasota County. Division H is within the South County Judicial District of Sarasota County, a special judicial district of the Twelfth Judicial Circuit as described in various administrative orders. Pursuant to Twelfth Judicial Circuit Local Rule 8.1 and 8.7, the case was originally assigned to Judge Robert H. Bennett as the “Family H” judge assigned to the South County courthouse. On motion from Strong, Judge Bennett was disqualified and the case was reassigned to a county judge serving temporarily as an acting circuit judge.

After the acting circuit judge later disqualified herself on her own motion pursuant to Florida Rule of Judicial Administration 2.160(f), Chief Judge Lee E. Haworth, acting within the scope of his authority when he made the assignment, reassigned the ease to another county court judge serving temporarily as an acting circuit judge. See Fla. R. Jud. Admin. 2.215(b)(4); State ex rel. Treadwell v. Hall, 274 So.2d 537, 539 (Fla.1973) (holding that a chief judge may assign qualified county judges “as temporary circuit judges for the performance of any judicial service a circuit judge can perform”).

Strong contends that this last assignment was improper. Apparently unaware of the order appointing the second judge as acting circuit judge, Strong asserted that assignment to a county judge would deprive the circuit court of jurisdiction of the case and that Twelfth Judicial Circuit Administrative Order 2008-13.2 (AO 2008-13.2) required that the case be transferred or reassigned to another division of the circuit court rather than to a county judge. Twelfth Circuit Local Rule 8.7, approved in June 2007, states that “family law matters filed in Division H of the Circuit Court for Sarasota County ... will be heard by the judges assigned to the South County courthouse in Venice, Florida.” AO 2008-13.2, entered in September 2008 in response to “dramatic increases in case filings in the South County Judicial District,” restricted new filings in that area to family cases and reassigned other pending cases to other divisions of the court. Paragraph 9 of AO 2008-13.2 provides that “[u]pon good cause shown, the Chief Judge or the presiding Circuit Judge in Division H may order that Family Division matters ... be transferred or reassigned to another division of the Circuit Court.”

Strong argues that Jimenez v. Rateni, 967 So.2d 1075 (Fla. 2d DCA 2007), and Del Valle v. Tolson, 969 So.2d 1121 (Fla. 2d DCA 2007), in which this court granted certiorari review and quashed interlocutory orders entered by the circuit court regarding judicial assignment in civil appellate proceedings, require this court to grant the petitions for a writ of prohibition and mandamus to reassign her case to another division of the court rather than the county judge. Jimenez and Del Valle, however, considered orders that violated the unambiguous provisions of a local rule regarding assignment of civil appeals from the county court. This court found “common law certiorari jurisdiction to review the circuit court’s order ... because the utilization of an improper process for the assignment of a judicial case causes ‘material injury ... that cannot be corrected on postjudgment appeal.’ ” Jimenez, 967 So.2d at 1077 (internal citation omitted). This court also found jurisdiction based on cases recognizing certiorari as an appropriate vehicle for challenging certain administrative orders, noting that although Jimenez had made no reference to an administrative order, she was in effect challenging an administrative practice based on an administrative order. That jurisdiction, however, properly includes “challenges to administrative orders, other than challenges to judicial assignments.” See Hatcher v. Davis, 798 So.2d 765, 765 (Fla. 2d DCA 2001) (citing 1-888-Traffic Schools v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So.2d 413 (Fla.1999)) (emphasis added). Finally, Jimenez challenged the practice of how appeals were assigned, not the assignment of a particular case to a particular judge.

Strong, however, seeks prohibition and mandamus relief and has neither requested nor shown a basis for converting this proceeding to one in certiorari. Further, Strong’s ultimate challenge is not to an administrative practice based on an administrative order but to the order assigning her case to the second county judge and, in her reply, to the validity of the order assigning the second county judge as acting circuit court judge. Even assuming that AO 2008-13.2 is the kind of order subject to review by a district court, in Strong’s case an unambiguous local rule states that family law cases will be heard by judges assigned to the South County courthouse, and a discretionary provision of an administrative order states that Family Division matters may be transferred or reassigned to another division of the circuit court.

The supreme court has been clear in “concluding] that [the supreme court] has exclusive jurisdiction to review judicial assignments,” that “there is nothing in our Constitution to indicate that district courts are to share in the administrative supervision of our trial courts,” and has unambiguously held that “a litigant who is affected by a judicial assignment made by a chief judge of a judicial circuit must challenge that assignment in the trial court and then seek review in [the supreme court] by way of petition for writ of prohibition or petition under the ‘all writs’ power.” Wild v. Dozier, 672 So.2d 16, 17-18 (Fla.1996); see also Physicians Healthcare Plans, Inc. v. Pfeifer, 846 So.2d 1129, 1133 (Fla.2003) (quoting Wild and reiterating that exclusivity). Wild concerned the validity of an administrative order appointing a particular county judge as acting circuit judge and his subsequent assignment to hear felony cases. Later, the supreme court clarified in 1-888-Traffic Schools, 734 So.2d at 416, that the exclusive jurisdiction found in Wild applies specifically to administrative orders making judicial assignments but does not extend to all other administrative orders.

Consequently, this court is without jurisdiction to rule on the petition for writ of prohibition. There is no authority for mandamus relief in the manner sought by Strong. Accordingly, both petitions are dismissed.

Dismissed.

CASANUEVA and SILBERMAN, JJ., concur.

      . Judge Bennett is currently the presiding circuit judge in the South County and also serves as the Acting Chief Judge for the Twelfth Judicial Circuit in the absence of the chief judge.


text:
    Larry Eugene SHORTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2076.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Larry Eugene Shorter, Jr., appeals his sentence for child abuse entered after the trial court revoked his probation. Because the trial court improperly included victim injury points on the scoresheet for a crime that was not before the court for sentencing, which the State concedes, we reverse and remand for resentencing with a corrected scoresheet.

The trial court revoked Shorter’s probation based upon new law offenses and sentenced him to 53.7 months in prison. The Criminal Punishment Code scoresheet showed 53.7 months as the lowest permissible prison sentence. The scoresheet included forty points for severe victim injury. Those points were assessed, however, for victim injury resulting from the new law offense of leaving the scene of an accident with injury, which was not before the court for sentencing.

Shorter brought this issue to the trial court’s attention in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (recognizing inaccurate scoresheets as “sentencing errors” subject to preservation by rule 3.800(b)(2)); State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (stating that a rule 3.800(b) motion is a method to correct scoresheet error); Harper v. State, 5 So.3d 765, 765-66 (Fla. 2d DCA 2009) (stating that scoresheet error was preserved for review by rule 3.800(b)(2) motion). Our record reflects that the trial court did not rule on the motion within sixty days; thus, we deem the motion denied. See Harper, 5 So.3d at 766 n. 1.

Because Shorter was not before the court for sentencing on the leaving the scene of an accident charge, it was improper to consider those victim injury points in sentencing Shorter for child abuse. See § 921.0021(7)(a), Fla. Stat. (2002) (“ ‘Victim injury’ means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.”). Shorter argues that the trial court clearly intended to sentence him to the lowest permissible prison sentence on the scoresheet and that we should reverse and remand for the trial court to resen-tence him to the lowest permissible prison sentence based on a corrected scoresheet that does not include the forty victim injury points. The State contends that resen-tencing is required to determine whether the trial court would1 impose the same sentence of 53.7 months under a corrected scoresheet.

The Florida Supreme Court has determined that the test to be applied on a direct appeal regarding whether score-sheet error requires resentencing is the “would-have-been imposed” test. See Anderson, 905 So.2d at 118. “If the reviewing court cannot determine conclusively from the record that the trial court would have imposed the same sentence despite the erroneous scoresheet, remand for resentencing is required.” Id. at 116. Based on our record, including the transcript of the sentencing hearing, we cannot say conclusively what the trial court would have done had the forty victim injury points not been included on the scoresheet. See id.; Budd v. State, 939 So.2d 1158, 1159 (Fla. 2d DCA 2006). Thus, we reverse Shorter’s sentence and remand for resentencing based on a corrected score-sheet that does not include the forty victim injury points.

Sentence reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.


author: PER CURIAM.

text:
    Mary POWELL, Petitioner, v. Jay SOLOWSKY, Esquire and Pertnoy, Solowsky & Allen, P.A., Respondents.
    No. 3D09-864.
    District Court of Appeal of Florida, Third District.
    May 29, 2009.

      Seiden, Alder, Matthewman & Bloch, Joel Rothman and Andrew A. Seiden, for petitioner.
    David Stone, for respondents.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is a petition for writ of certiorari in which plaintiff-petitioner Mary Powell asserts that a trial court order compelling discovery infringes the attorney-client privilege. We grant the petition.

The plaintiff was a social friend of attorney Robert Dulberg. According to the record before us, at various times the plaintiff discussed legal issues pertaining to her, or her business, with Mr. Dulberg. On some occasions Mr. Dulberg contacted other attorneys on the plaintiffs behalf.

During the course of the present lawsuit, Mr. Dulberg was called as a witness. He stated in substance that his conversations with the plaintiff about her legal matters were as a friend but that he had never undertaken to represent the plaintiff. He acknowledged that he had assisted the plaintiff in drafting some letters.

During Mr. Dulberg’s deposition in this litigation, the plaintiff objected to some questions on the ground of attorney-client privilege. Those questions were not answered. Respondents-defendants Jay So-lowsky and Pertnoy, Solowsky & Allen, P.A., then moved to compel answers to those certified questions, arguing that there never had been an attorney-client relationship between the plaintiff and Mr. Dulberg.

The trial court reviewed Mr. Dulberg’s deposition. The court also saw an email between the plaintiff and Mr. Dulberg in which the plaintiff stated, in part, that “you were never, nor will you ever be, counsel for me.... ” The plaintiff contends that this statement has been taken out of context and that there was, in fact, an attorney-client relationship on one or more matters.

During the hearing on the motion to compel, the plaintiffs counsel requested an evidentiary hearing on whether or not there had been an attorney-client relationship between the plaintiff and Mr. Dul-berg. Plaintiffs counsel proffered that in one particular matter, Mr. Dulberg had requested a referral fee.

The trial court denied the request for an evidentiary hearing and ordered Mr. Dul-berg to answer the certified questions. This petition for writ of certiorari follows.

According to Professor Ehrhardt, “Whether the person consulting a lawyer is a client depends primarily on whether the person believes that the consultation with the lawyer is as a client and the client has manifested an intention to seek professional legal advice.” Charles W. Ehrhardt, Florida Evidence § 502.2 (2009). “[T]he lawyer cannot be consulted as a friend or business advisor; the person must be consulted as a lawyer. ' A communication is not privileged simply because one party to the communication happens to be a lawyer.” Id. (footnote omitted). The client’s belief that she is consulting a lawyer in that capacity must be reasonable. Valliere v. Florida Elections Comm’n, 989 So.2d 1242, 1243 (Fla. 4th DCA 2008).

What gives us pause is the proffer that Mr. Dulberg had requested a referral fee on one matter. Such a request would suggest the existence of an attorney-client relationship on that matter. We are not convinced that the answer to the question whether there was an attorney-client relationship can be determined solely from the face of this record. Accordingly, we quash the trial court’s order on this issue and remand for an evidentiary hearing.

We express no view on whether an attorney-client relationship existed. We only say that the plaintiff is entitled to an evidentiary hearing.

Petition granted.


text:
    Gary COLLINS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D08-6037.
    District Court of Appeal of Florida, First District.
    May 29, 2009.
    Gary Collins, pro se, Petitioner.
    Sarah J. Rumph, Acting General Counsel, Florida Parole Commission, and Theodore A. Avellone, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of a circuit court order which denied a petition for writ of mandamus which challenged the revocation of his conditional release supervision. We grant the writ.

When petitioner’s conditional release supervision was revoked, neither the Florida Parole Commission nor the FPC hearing examiner made a finding that the violation was willful and substantial as required by Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006). Petitioner sought mandamus relief in the circuit court, which remanded the cause to FPC to make that finding. After the hearing examiner determined that the violation was willful and substantial, FPC adopted that finding. Without giving petitioner an opportunity to respond, the circuit court then denied the petition for writ of mandamus. Due process is violated where a cause is remanded to FPC for a determination of whether the violation is willful and substantial and the circuit court fails to allow the inmate an opportunity to be heard before denying relief. See Nichols v. Fla. Parole Comm’n, 4 So.3d 1247 (Fla. 1st DCA 2009); Crosby v. Fla. Parole Comm’n, 975 So.2d 1222 (Fla. 1st DCA 2008).

We note that the record on appeal failed to contain the exhibits that FPC attached to its response to order to show cause and motion for remand filed in the circuit court. Petitioner also complained that he was not provided with copies of FPC’s exhibits. In arguing for relief in this court, a party may not rely on exhibits which were not filed in the lower tribunal.

Accordingly, we grant the writ, quash the order of the circuit court and remand for further proceedings.

PETITION GRANTED.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.