author: CANADY, J.

text:
    STATE of Florida, Petitioner, v. Sirron JOHNSON, Respondent.
    No. SC09-1570.
    Supreme Court of Florida.
    June 27, 2013.

      Pamela Jo Bondi, State Attorney, Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Christine Ann Guard, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Henry Gerome Gyden, of Haas, Lewis, Difiore, P.A., Tampa, FL, for Respondent.
   CANADY, J.

In this case, we consider whether the definition of the term “statutory maximum” announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to final criminal sentences imposed before the decision in Blakely issued. In Johnson v. State, 18 So.3d 623, 625 (Fla. 1st DCA 2009), the First District Court of Appeal held that Blakely's new definition applies retroactively to cases on collateral review in which sentences were imposed after the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was issued. The First District’s holding expressly and directly conflicts with the decision in Thomas v. State, 914 So.2d 27, 28 (Fla. 4th DCA 2005). Accordingly, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we hold that Blakely does not apply retroactively to final sentences or resentences. Thus, the decision affords no pathway to postconviction relief regarding any sentence that was final before Blakely issued.

I. BACKGROUND

After trial by jury, Sirron Johnson was convicted for the 1995 armed kidnapping, armed sexual battery, and armed robbery of victim C.R. Johnson v. State, 717 So.2d 1057, 1059 (Fla. 1st DCA 1998). “[T]he permitted sentencing range on his guidelines scoresheet was 9.6 to 16 years’ imprisonment,” but the trial court sentenced him to concurrent, upward departure sentences of forty-eight years on each count. Johnson, 18 So.3d at 624. His sentence became final in October 2000, after Ap-prendi issued in June 2000. See Johnson v. State, 761 So.2d 318 (Fla.) (approving district court decision), cert. denied, 531 U.S. 889, 121 S.Ct. 212, 148 L.Ed.2d 149 (2000). Then, in December 2000, Johnson filed a postconviction motion to correct illegal sentence, alleging that his departure sentence exceeded the statutory maximum. The trial court granted the motion and, two years before Blakely issued, resen-tenced Johnson to concurrent terms of forty years on two counts and reimposed the forty-eight year sentence for the armed robbery. See Johnson, 18 So.3d at 624. In June 2007, Johnson filed a motion alleging that the upward departure sentences imposed at his June 2002 resentencing exceeded the statutory maximum as defined by Apprendi and Blakely. The trial court denied the motion, and Johnson appealed.

On review, the First District relied on its prior decisions in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review dismissed, 66 So.3d 912 (2011), cert. denied, — U.S. -, 132 S.Ct. 1539, 182 L.Ed.2d 161 (2012), and Monnar v. State, 984 So.2d 619 (Fla. 1st DCA 2008), to hold that Blakely applied to Johnson’s pre-Blakely resentencing. Johnson, 18 So.3d at 624-25. In Isaac, the district court reasoned that Blakely merely “clarified” Apprendi; thus, Blakely applied to Isaac’s de novo, pre-Blakely resentencing. 911 So.2d at 814-15. Three years later, the First District reiterated that the governing rule in the First District was that Blakely applied “to any resentencing that took place after Apprendi came down, even re-sentencings taking place before Blakely was decided.” Monnar, 984 So.2d at 619. Accordingly, in Johnson, the First District reasoned and held as follows:

Here the appellant was resentenced after Apprendi was decided but before Blakely came down. Thus, pursuant to Isaac, the dictates of Apprendi and Blakely apply to appellant’s sentences.
The trial court held that even if Ap-prendi applies, the sentences imposed did not violate Apprendi because they were not above the statutory máximums for the offenses. However, the appellant was sentenced pursuant to the sentencing guidelines, not the Criminal Punishment Code. Thus, as Blakely makes clear, the statutory maximum would be the maximum guidelines sentence appellant could receive without the court imposing an upward departure. See Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005) (holding that pursuant to Blakely, “under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guidelines sentence to which a defendant is exposed must be based either on (1) findings made by the jury, (2) facts admitted by the defendant, or (3) the defendant’s prior convictions.”).

Johnson, 18 So.3d at 625. The district court reversed and remanded the case. Id. We granted review. See State v. Johnson, 84 So.3d 1032 (Fla.2012) (table).

II. ANALYSIS

The Supreme Court’s decisions in Ap-prendi and Blakely have caused considerable confusion in criminal sentencing at both the federal and state levels. To resolve the ongoing conflict in our state’s courts regarding the applicability of Blakely to sentences that were final before it issued, we begin by discussing the holdings in these two federal cases and the subsequent rulings of the Supreme Court and this Court regarding their application. Next, we explain the conflict in our state’s district courts regarding Blakely’s application to sentences that were final before Blakely was decided. Finally, we apply our test for determining retroactivity and hold that the rule announced in Blakely is not retroactive.

A. Apprendi, Blakely, and Related Decisions

In Apprendi and Blakely, the Supreme Court addressed the limitations on the sentencing powers of a trial court. In Apprendi the Court was presented with this question: “[Wjhether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” Apprendi, 530 U.S. at 469, 120 S.Ct. 2348. In that case, the defendant pleaded guilty pursuant to a plea agreement to three counts, two of which were the second-degree possession of a firearm for an unlawful purpose. Id. at 469-70, 120 S.Ct. 2348. One New Jersey statute provided a five-to-ten year sentencing range for the offense, but another gave the trial court discretion to impose an extended term of years upon finding by a preponderance of the evidence that the offense was a “hate crime.” Id. at 468-69, 120 S.Ct. 2848. The trial court found the offense was a hate crime and imposed an enhanced sentence. Id. at 471, 120 S.Ct. 2348. On review, the Supreme Court noted that “judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits,” id. at 481, 120 S.Ct. 2348 but determined that the trial court exceeded those limits in imposing the enhanced sentence.

In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)]. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Id. at 490, 120 S.Ct. 2348 (emphasis added). Accordingly, the Court reversed and remanded for further proceedings. Id. at 497,120 S.Ct. 2348.

Subsequently, we applied our retroactivity analysis from Witt v. State, 387 So.2d 922, 925 (Fla.1980), to the new procedural rule announced in Apprendi and held that the Supreme Court’s decision should not be applied retroactively to cases that were final when the decision issued. Hughes v. State, 901 So.2d 837, 846 (Fla.2005). The United States Supreme Court also has addressed the question of Apprendi’s retro-activity, albeit indirectly. In Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the' Court applied the rule in Apprendi to capital cases and held that “[b]ecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348 the Sixth Amendment requires that they be found by a jury.” Then, in Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the Supreme Court applied the federal , retroactivity analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to Ring and concluded that the case announced a new rule of procedure that “altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment.” Summerlin, 542 U.S. at 353, 124 S.Ct. 2519. Accordingly, the Court held that Ring established a new procedural rule that did “not apply retroactively to cases already final on direct review.” Id. at 358, 124 S.Ct. 2519. The next year, this Court agreed that the rule in Ring was procedural and ruled, as we did with Apprendi, that Ring did not apply retroactively to final cases in Florida. Johnson v. State, 904 So.2d 400, 412 (Fla.2005).

Four years after deciding Apprendi, the Supreme Court again addressed the limits of judicial sentencing power. In Blakely, the defendant, like Apprendi, pleaded guilty to reduced charges, “admitting the elements of second-degree kidnaping” and other charges. Blakely, 542 U.S. at 299, 124 S.Ct. 2531. The Washington statute provided a maximum term of ten years for the kidnapping, but another provision specified a “ ‘standard range’ of 49 to 53 months” for second-degree kidnapping with a firearm. Id. As authorized under the statute, the trial court imposed a sentence that exceeded the standard range but not the ten-year statutory maximum after making • the additional finding that Blakely acted with “deliberate cruelty.” Id. at 300, 124 S.Ct. 2531. The Supreme Court rejected Washington’s contention that the sentence was lawful.’

Our precedents make clear, however, that the “statutory maximum” for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment, ” and the judge exceeds his proper authority.

Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (citations omitted) (some emphasis added). The Court explained that the “ ‘maximum sentence’ [in Blakely ] is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).” Id. at 304, 124 S.Ct. 2531. Accordingly, the Court reversed and remanded the case. Id. at 314, 124 S.Ct. 2531.

As with Apprendi, the decision in Blakely raised the question of whether the rule it announced regarding the statutory maximum permissible sentence applied retroactively to final cases. Neither the Supreme Court nor this Court has previously ruled on this issue. However, this Court has made clear that in retroactivity analysis regarding Apprendi and Blakely, we focus on the finality of the sentence, not the conviction. In State v. Fleming, 61 So.3d 399, 400 (Fla.2011), we addressed the issue of whether Apprendi and Blakely apply to de novo resentencing proceedings held after these cases were issued. We held that “[rjegardless of whether a defendant’s conviction and sentence were final before Ap-prendi and Blakely issued, ... where a defendant’s resentencing was not final when Apprendi and Blakely issued, the rules established in these cases apply to that de novo proceeding.” Fleming, 61 So.3d at 408.

B. Conflict Between the Decisions of the District Courts’ of Appeal

Relying on its prior decisions in Isaac and Monnar, the First District granted Johnson postconviction relief and reasoned that Blakely’s definition of “statutory maximum” applied to Johnson’s 2002 resen-tencing. Johnson, 18 So.3d at 625. By applying — on collateral review — the 2004 decision in Blakely to a criminal sentence that was final before Blakely was decided, the district court applied the decision retroactively. This holding expressly and directly conflicts with the Fourth District’s decision in Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005). In that case, the defendant’s sentence, like Johnson’s, was final, post -Apprendi but pre-Blakely. Thomas, 914 So.2d at 28. Also like Johnson, Thomas filed a Florida Rule of Criminal Procedure 3.800(a) motion in which he claimed that his sentence was illegal under Blakely. The Fourth District affirmed the summary denial of Thomas’s illegal sentence claim as follows:

The Supreme Court of Florida held in Hughes v. State, 901 So.2d 837 (Fla.2005), that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not apply retroactively. It did not address the retroactivity of Blakely, but, on the authority above, we conclude that there is no retroactivity of this decision either. Appellant’s sentences became final in 2002, pre-Blakely but post-Apprendi Since his challenge is based on Blakely, and as it is not retroactive, we conclude that the trial court did not err in rejecting this claim.

Thomas, 914 So.2d at 28. Accordingly, the Fourth District held that Blakely does not apply retroactively to Thomas’s pre-Blakely sentence and disagreed with the First District’s application of Blakely to cases in which a defendant’s sentence was final before Blakely was decided. Like the Fourth District, other district courts also have held that Blakely does not apply retroactively to final sentences. See, e.g., Boardman v. State, 69 So.3d 367, 369 (Fla. 2d DCA 2011) (“No matter how one measures the finality of his sentences, they were final before Blakely issued. Accordingly, he is not entitled to [postconviction] relief under Blakely.”); Osborn v. State, 915 So.2d 189, 190 (Fla. 3d DCA 2005) (“[T]he defendant’s sentence became final prior to the announcement of Blakely, and Blakely is not retroactive.”).

C. Whether Blakely Applies Retroactively

When this Court or the United States Supreme Court announces a new rule of law, the decision generally applies to all cases that are pending on direct review or are not yet final. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1986) (holding that any new rule for conducting criminal trials announced by the Court applies “retroactively to all cases, state or federal, pending on direct review or not yet final”); see also Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (“[A]ny decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.”), limited by Wuomos v. State, 644 So.2d 1000, 1007 n. 4 (Fla.1994) (“We read Smith to mean that new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise.”). Thus, once a case is final, the State acquires a substantial interest in its finality that “should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications.” Witt v. State, 387 So.2d 922, 925 (Fla.1980). To determine whether the decision in Blakely contains a new rule that should be applied retroactively to final sentences, we apply the analysis outlined in Witt. See Danforth v. Minnesota, 552 U.S. 264, 280-81, 288-89, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (holding states are not bound by retroactivity analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and may grant broader retroactive relief for federal constitutional violations in state court proceedings).

1. Blakely Announced a New Rule

The first question we address is whether the Supreme Court announced a new rule of law in Blakely. The Court described what constitutes a new rule.

In general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.

Teague, 489 U.S. at 301, 109 S.Ct. 1060 (citations omitted).

As stated previously, in Appren-di the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Then, in Blakely, the Court held that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S.Ct. 2531. The Court stated that the definition of “statutory maximum” it announced was clearly expressed in Apprendi. Id. However, the definition of “statutory maximum” announced in Blakely was not clear to the other federal courts or to the state courts. As one federal circuit court explained, “The rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny. In fact, before Blakely was decided, every federal court of appeals had held that Ap-prendi did not apply to guideline calculations made within the statutory maximum.” Simpson v. United States, 376 F.3d 679, 681 (7th Cir.2004) (citing cases).

Most courts in Florida agreed that under Apprendi, a judge could continue to make findings as long as the sentence imposed did not exceed the maximum sentence prescribed by statute for particular types of offenses. See, e.g., Hall v. State, 823 So.2d 757, 764 (Fla.2002) (“Because the sentence for each of Hall’s offenses did not exceed the statutory maximum, we conclude that Apprendi is inapplicable.”); McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (en banc) (on remand from United States Supreme Court) (“We hold that, in Florida, for purposes of determining a constitutional violation under Ap-prendi, the relevant statutory maximum is found in section 775.082[, Florida Statutes]. We choose this answer to the question posed by the United States Supreme Court’s remand because it is our best guess about what Apprendi means.”). Other states’ courts reached this same conclusion. See, e.g., State v. Smart, 202 P.3d 1130, 1140 (Alaska 2009) (“Before Blakely was decided, courts consistently held that Apprendi did not apply to sentences within the statutory maximum. The rule in Blakely was clearly not apparent to all courts and was not dictated by precedent.”) (footnotes omitted); Carmichael v. State, 927 A.2d 1172, 1177 (Me.2007) (noting that only the majority in Blakely thought Apprendi dictated its holding); People v. Johnson, 142 P.3d 722, 726 (Colo.2006) (“Blakely was not apparent to all reasonable jurists. On the contrary, a great many reasonable jurists failed to foresee the Blakely rule.”); State v. Houston, 702 N.W.2d 268, 271 (Minn.2005) (“Prior to Blakely, ‘statutory maximum’ was generally thought to mean the heaviest penalty a court could impose on a defendant — the ceiling of the relevant statutory sentencing range.”); State v. Evans, 154 Wash.2d 438, 114 P.3d 627, 629 (2005) (“In Blakely, the Supreme Court clarified that the ‘statutory maximum’ did not refer to the maximum sentence authorized by the legislature for the crime (as almost every court considering the issue had concluded).”). Accordingly, we conclude that Blakely announced a new rule.

Because Blakely established a new rule, we necessarily .reject the First District’s contrary conclusion expressed in Isaac— and applied in this case — that Blakely “clarified” Apprendi and applies retroactively. See Isaac, 911 So.2d at 814-815. The district court’s decision tacitly rests on the due process discussion in the Supreme Court’s decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), which has no application here. In that case, although Fiore held a valid permit for operating a hazardous waste facility, he was convicted of the crime of operating the facility without a permit based on the prosecution’s theory that Fiore had “deviated so dramatically from the permit’s terms” that he effectively had no permit. 531 U.S. at 227, 121 S.Ct. 712. Subsequently, the Pennsylvania Supreme Court reversed Fiore’s codefendant’s conviction for the same crime, holding that the statute meant what it said, i.e., without a permit means without a permit. Id. (citing Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109, 1112 (1993)). However, Fiore’s efforts to have his conviction overturned in federal habeas proceedings were spurned on the ground that the holding in his codefendant’s case constituted a new rule of law that did not apply retroactively. The Supreme Court reversed and remanded. Citing the Pennsylvania high court’s response to its inquiry, the Court noted that the state court “specifie[d] that the interpretation of [the relevant statute] set out in Scarpone ‘merely clarified’ the statute and was the law of Pennsylvania — as properly interpreted — at the time .of Fiore’s conviction.” 531 U.S. at 228, 121 S.Ct. 712 (emphasis added). “Thus, Fiore requires vindication of due process guarantees by ensuring that each essential element of an offense at the time a conviction becomes final is proved beyond a reasonable doubt.” State v. Barnum, 921 So.2d 513, 522 (Fla.2005) (emphasis added). Unlike Fiore, the state of the law concerning the elements of the crimes for which Johnson was convicted was not at issue in this case. Yet, the First District granted post-conviction relief based on its unelaborated determination that Blakely clarified Ap-prendi. The First District’s conclusory decision could effectively open the floodgates for postconviction claims any time a court interprets a criminal statute or comments on its own decisional law. As explained above, we conclude that the decision in Blakely announced a new rule of law and “the question of the retroactivity of decisions should be controlled solely by Witt.” Bamum, 921 So.2d at 524;

2. Blakely Is Not Fundamentally Significant

To be given retroactive application to cases on collateral review, a change of law must “(a) emanate[ ] from this Court or the .United States Supreme Court, (b) [be] constitutional in nature, and (c) constitute!] a development of fundamental significance.” Witt, 387. So.2d at 931. The rule announced in Blakely plainly meets the first two criteria, but for the reasons explained below, we conclude it does not have fundamental significance. Accordingly, Blakely does not apply retroactively.

A law that is fundamentally significant will generally fall within one of two categories. The first category refers to “those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties.” Witt, 387 So.2d at 929. The second category contains changes that “are of sufficient magnitude to necessitate retroactive application” under the three-part test of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that is, changes that constitute “jurisprudential upheavals.” Id. The parties correctly agree that the Blakely rule does not fall within the first category. Accordingly, the determination of fundamental significance must be analyzed under the Linkletter/Sto-vall three-part test.

[T]he essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.

Witt, 387 So.2d at 926. In considering whether the Blakely rule should be given retroactive application, the Court is guided by the kinds of decisional changes that do not qualify for retroactive application.

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Id. at 929-30 (footnote omitted).

a. The Purpose of the New Rule

When we considered in Hughes whether Apprendi was retroactive, we recognized that the rule announced was “intended to guard against erosion of the Sixth Amendment’s guarantee of the right to jury trial, by requiring that a jury decide the facts supporting a sentence that exceeds the statutory maximum.” Hughes, 901 So.2d at 841. We understood that Apprendi permitted judges to make factual findings “as long as the resulting sentence [did] not exceed the statutory maximum,” prescribed by the applicable statute. Id. By limiting the “statutory maximum” to the sentence congruent with the facts “reflected in the jury verdict or admitted by the defendant,” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (original emphasis omitted), however, the Supreme Court altered the effect of Apprendi. As we stated above, courts interpreting Apprendi reasoned that judges still had the power to make findings of facts affecting the sentence as long as the statutory maximum contained in the Florida Statutes was not exceeded. Under Blakely, courts no longer have that power under determinate sentencing schemes. The Supreme Court explained:

Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.

Blakely, 542 U.S. at 306, 124 S.Ct. 2531 (citations omitted) (emphasis added).

Blakely did not end judicial factfinding, however. The Court stated that the “Sixth Amendment ... is not a limitation on judicial power, but a reservation of jury power,” explaining that under indeterminate sentencing schemes judicial discretion increases “but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty.” Id. at 308-09, 124 S.Ct. 2531. The Court continued:

Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.

Id. at 309,124 S.Ct. 2531.

Although the Court explained the purpose of the rule in Blakely in terms of vindicating an individual’s constitutional rights to jury trial and due process, this does not necessarily weigh in favor of the rule’s retroactive application. In Washington v. Recuenco, 548 U.S. 212, 222, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), the United States Supreme Court held that “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error,” i.e., not plain or fundamental error. Accordingly, the Court held that Blakely error is subject to harmless error analysis. Recuenco, 548 U.S. at 222, 126 S.Ct. 2546. This Court followed suit, holding that “harmless error analysis applies to Ap-prendi and Blakely error.” Galindez v. State, 955 So.2d 517, 524 (Fla.2007). Moreover, we also have held that the rules announced in Apprendi and Ring do not apply retroactively. Hughes, 901 So.2d at 838; Johnson, 904 So.2d at 412. In addition, we note that in holding Ring was not retroactive, the Supreme Court observed that it had previously determined that even the right to a jury trial established in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), was not retroactive. Summerlin, 542 U.S. at 358, 124 S.Ct. 2519 (citing its decision in DeStefano v. Woods, 392 U.S. 631, 633, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968)). Accordingly, we conclude that this factor weighs against Blakely’s retroactive application to sentences final before it issued,

b. Extent of Reliance on the Old Rule

The second consideration in determining whether a new constitutional rule applies retroactively is the extent of reliance on the prior rule. In holding that Apprendi was not retroactive to final sentences, we determined that Florida had relied on trial court findings in sentencing for a significant period. Hughes, 901 So.2d at 845 (“Trial courts have long exercised discretion in sentencing.”). This conclusion applies here as well. Johnson concedes this point but argues that Blakely would apply retroactively only to post-Apprendi sen-tencings or resentencings. This argument relies on the view espoused by the First District that Blakely merely clarified Ap-prendi, a view we have rejected as explained above. We have concluded that Blakely announced a new rule that redefines the statutory maximum sentence that may be imposed. Thus, the question of retroactivity is not necessarily limited to the intervening four years between the issuance of Apprendi and Blakely. Even if limited to this period, however, the impact, as explained below, would be significant.

c. Effect on the Administration of Justice

In Hughes, we concluded that applying Apprendi retroactively to final cases would have an adverse impact on the administration of justice. 901 So.2d at 846. We stated that retroactive application

would require review of the record and sentencing proceedings in many cases simply to identify cases where Apprendi may apply. In every case Apprendi affects, a new jury would have to be empaneled to determine, at least, the issue causing the sentence enhancement. In most cases, issues such as whether the defendant possessed a firearm during the commission of a crime, the extent of victim injury or sexual contact, and whether a child was present (to support use of the domestic violence multiplier) cannot be considered in isolation. Many, if not all, of the surrounding facts would have to be presented. In others, a jury would have to determine factors unrelated to the case (e.g., whether legal status points may be assessed).

Id. at 845-46 (footnote omitted). We reach the same conclusion here.

Retroactive application of the rule announced in Blakely would require review of the records of numerous cases, first to determine whether Blakely error occurred, then whether such error was preserved, and finally, whether the error was harmless. In those cases where a claim for postconviction relief survives such review, juries would likely have to be empaneled to hear evidence and determine sentence enhancements. All told, this would be a time-consuming undertaking that would significantly strain our scarce court resources. Even if the retroactive application extended only to cases finalized in the interval between the issuance of Apprendi and Blakely, the disruption would be significant. Accordingly, this factor also weighs against applying Blakely retroactively.

III. CONCLUSION

For the reasons discussed above, we conclude that the new constitutional rule announced in Blakely does not apply retroactively to sentences or resentences that were final when it issued. Accordingly, we quash the First District’s decision in Johnson, and we approve the Fourth District’s decision in Thomas.

It is so ordered.

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

PARIENTE, J., concurs in result.

      . The only procedural difference between the cases is that Johnson sought retroactive application of Blakely to his 2002 de novo resen-tencing and Thomas claimed Blakely applied to his 2002 original sentence. This difference, however, does not affect our conflict analysis.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    F.R., a juvenile, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-602.
    Supreme Court of Florida.
    Sept. 19, 2013.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Jill D. Kramer, Assistant Attorney General and Richard L. Polin, Bureau Chief, Miami, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in F.R. v. State, 81 So.3d 572 (Fla. 3d DCA 2012), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss this review proceeding.

It is so ordered.

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

CANADY, J., concurs in result.


author: WARNER, J.

text:
    Alverna BROWN, as Personal Representative of the Estate of Oral George BROWN, deceased, and on behalf of the survivors of Oral George Brown, Appellant, v. Kenneth C. JENNE, individually, and in his official capacity as Sheriff of Broward County, Florida, Leonard Smith, Sergeant Todd Chase, Willie Dowe, Kenneth Autenrieb, Eli Thomasevich, Does 1-10, Individually, Broward County Fire Rescue, Kenneth Loukinnen, Hayes C. Bowen, Ken Swan, Ronnie Hall, Karl Froling, Lisa Long, Richard Cabrera, Ken Mckinney, Does 11-20, Individually, Swap Shop Management, LLC, and Broward County, Appellees.
    No. 4D10-142.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.

      Michael Winer of The Law Office of Michael Winer, P.A., Fort Lauderdale, for appellant.
    Mark A. Emanuele and Craig S. Dawson of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellees Karl Froling and Kenneth Loukinnen.

      David M. DeMaio and Christopher C. Wike of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Miami, for appellee Hayes Bowen.
    Chris Kleppin of Glasser, Boreth & Kleppin, Plantation, for appellee Ken Swan.
    Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees Leonard Smith, Todd Chase, Willie Dowe, Kenneth Auten-rieb, and Eli Thomasevich.
   On Motion FOR Hearing

WARNER, J.

Appellant’s Motion for Rehearing is hereby granted. This Court’s opinion of November 9, 2011, is hereby vacated and substituted with the following opinion.

Alverna Brown, as Personal Representative of the Estate of Oral George Brown (the “decedent”), appeals from final summary judgments granted in favor of nine different defendants on appellant’s claims of violation of Brown’s civil rights under 42 U.S.C. § 1983. The nine defendants are five officers with the Broward Sheriffs Office (“BSO”) and four Broward County Fire Rescue (“BCFR”) personnel, all of whom responded to a vehicle rollover crash involving the decedent. The plaintiff claimed that the conduct of both BSO and BCFR in attending to the decedent, who was alive after the crash but subsequently expired at the hospital, violated the decedent’s civil rights. The court granted summary judgment to all defendants on the basis of qualified immunity. We reverse as to the BSO personnel, concluding that issues of fact remain as to whether they are entitled to qualified immunity under the facts of this case, and affirm as to the BCFR personnel, as there was no clearly established constitutional right of the decedent that they violated.

Facts

This case stems from the decedent’s 2001 death, which occurred after he was involved in a one-car rollover crash. BCFR personnel were required to utilize the “Jaws of Life” to help extricate the decedent from the car and lower him to the ground. Both police and fire rescue on the scene felt that the decedent was dazed. He was incoherent, was unresponsive to police commands, and began to walk away. The officers were concerned for his health and safety. He was not suspected of any criminal activity.

Independent eyewitnesses described the decedent after he was extricated from the car as appearing to be in shock, having difficulty breathing, being incoherent, moaning, staggering and leaning against a car as he kept walking around, all the while as officers tried to talk to him to find out what was wrong with him. After five minutes of getting nowhere with him, several officers threw the decedent to the ground; one had his hand on the decedent’s head while two other officers were on the decedent’s back, pulling his arms behind him to handcuff and ultimately hogtie him. The officers on the decedent’s back were telling him to stop flailing his arms, but it did not appear that he understood. The decedent at no time acted aggressively towards police or paramedics. One witness stated that it appeared that the police were rough in handling the decedent because he was not responding to their commands, and not because they needed to immobilize him for treatment.

BCFR paramedics accompanied and attended to the decedent in the ambulance on the way to the hospital. The decedent was placed, still hogtied and face-down, on the stretcher, and then the paramedics put straps across the back of his knees and waist. Their reasoning for leaving him face-down was the difficulty moving him due to his size and weight, and their concern .that if he had vomited, his face-down position would allow his airway to drain such that he would not choke. He was having trouble breathing, but he was not given oxygen en route to the hospital.

A few blocks from the hospital, the decedent had a grand mal seizure, with the violent activity typical of such, which lasted approximately one minute. Standard measures to stop the seizure were not attempted.

After the seizure, the decedent was unconscious, breathing deeply, and drooling in a postictal state. The paramedics left the decedent face down and did not then administer oxygen. They were close to the hospital at that time. The decedent died shortly after arriving at the hospital.

The medical examiner found that the decedent died due to positional asphyxia, which led to respiratory and cardiac failure. As the medical examiner explained:

Well, there are multiple factors in the position that he’s in. He’s on his stomach. He’s an obese man. He is in a hogtied position which puts more pressure on his trunk of his body. Not only that, he’s also cinched down tightly as described in the record to the gurney which is also compromising his chest. He’s not able to move. He’s not able to expand his chest fully to breathe.

BCFR also reviewed the incident and issued a memorandum identifying nine issues that cumulatively led to the decedent’s death, particularly due to his positioning with handcuffing and failure to properly monitor the decedent during transport to the hospital.

Following the incident, the plaintiff filed an action against the Broward County Sheriff and the BSO and BCFR personnel under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. The BCFR personnel sought to dismiss the complaint, alleging that they were entitled to absolute immunity or, alternatively, qualified immunity. The trial court granted the motion, finding that the BCFR personnel were entitled to absolute immunity. The plaintiff appealed to this court in Brown, v. Jenne, 941 So.2d 447 (Fla. 4th DCA 2006), and we reversed, finding that the county personnel were not entitled to absolute immunity. We did not, however, decide the issue of qualified immunity.

On remand, the nine defendants involved in this appeal moved for summary judgment on the grounds of qualified immunity. The trial court found that “all the players were at least performing their job accordingly and they would, therefore, under this section of the federal statute be entitled to qualified immunity.” With respect to the BCFR personnel, the trial court found that “[pjlaintiff has not submitted evidence that their actions violated clearly established constitutional and/or statutory law.” This appeal follows.

Summary Judgment

Orders granting summary judgment are reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). A summary judgment can be affirmed only where there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). When a defendant moves for summary judgment, the trial court’s function is to determine whether the moving party proved the nonexistence of a genuine issue of material fact. Le v. Lighthouse Assocs., Inc., 57 So.3d 283, 285 (Fla. 4th DCA 2011). “Tf the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’ ” Lindsey, 50 So.3d at 1206 (quoting Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010)). Summary judgment is proper only where the facts are “ ‘so crystallized that nothing remains but questions of law.’ ” Tolan v. Coviello, 50 So.3d 73, 74 (Fla. 4th DCA 2010) (quoting Cohen v. Cooper, 20 So.3d 453, 455 (Fla. 4th DCA 2009)).

Qualified Immunity Standard

“ ‘Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.’ ” Furtado v. Law, 51 So.3d 1269, 1274 (Fla. 4th DCA 2011) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.2008)). “ ‘[Qualified immunity for government officials is the rule, liability and trials for liability the exception.’ ” Fernander v. Bonis, 947 So.2d 584, 588 (Fla. 4th DCA 2007) (quoting Alexander v. Univ. of N. Fla., 39 F.3d 290, 291 (11th Cir.1994)).

The government official has the initial burden of showing that he or she acted "within his/her discretionary authority-if the official meets that burden, the burden shifts to the plaintiff to show the lack of good faith on the official’s part by demonstrating that his/her conduct violated “clearly established” constitutional rights, of which a reasonable person would have known. Vaughan v. Fla. Dep’t of Agric. & Consumer Servs., 920 So.2d 650, 651-52 (Fla. 4th DCA 2005). In other words, first, viewing the evidence in the light most favorable to the plaintiff, the plaintiff must show that the government officials violated a constitutional right; and, second, if such a violation occurred, it must be determined if that right was clearly established at the time of the incident. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Claim Against BSO Officers

Appellant argues that the BSO officers affected a Fourth Amendment seizure of the decedent by using excessive force when they threw him to the ground, hogtied him, and handcuffed him. As succinctly stated in Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989),

A “seizure” triggering the Fourth Amendment’s protections occurs only when government actors have, “by means of physical force or show of authority, ... in some way restrained the liberty of a citizen,” Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968); see Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989).

Claims against law enforcement officers involving excessive use of force must be analyzed under the Fourth Amendment “reasonableness” standard. Graham, 490 U.S. at 396, 109 S.Ct. 1865. In determining reasonableness, “the question is whether [the] officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397.

Thompson v. Douds, 852 So.2d 299 (Fla. 2d DCA 2003), applies Graham to a case factually similar to this case. There, an officer received a report of an individual walking on the interstate. When the officer encountered the individual, Magyar, he did not appear alert and told the officer that he had high blood pressure and diabetes. The officer coaxed Magyar into his police vehicle and took him to an abandoned gas station to wait for an ambulance. Magyar exited the vehicle, making some statements of his belief that the officer would try to hurt him. Another officer arrived, and Magyar began to walk away. The officers ordered him to stop, and he did, returning to the station. However, he again began to walk away faster, and the officers took chase. When they caught him, Magyar began to struggle. The officers took him to the ground, and both officers jumped on top of the struggling Magyar. They handcuffed him, but did not get off of Magyar’s body until it went limp. They then rolled him over, and his lips were blue. He was transported to the hospital where he remained in a persistent vegetative state.

Magyar’s guardian filed a section 1983 claim against the officers claiming the use of excessive force in a Fourth Amendment seizure. The officers moved for summary judgment on the issue of qualified immunity, which the trial court granted, but the Second District reversed. Applying Graham, the court held that the force used against Magyar was excessive. Thompson, 852 So.2d at 806. First, the court reasoned, Magyar was not suspected of any criminal activity. “Because serious force is appropriate for a more serious crime and less force is appropriate for a less serious offense, ... the fact that Magyar had committed no offense at all militates against the use of any force-much less the force used in this case to effect Magyar’s detention.” Id. (internal citation omitted). Second, Magyar posed no immediate threat to the officers or others. Third, Magyar’s resistance did not justify the extent of force used by the officers. Similarly to the facts of this case, the court dismissed the officers’ claim that Magyar’s large size required them to exert the force they did.

As to the second determination for qualified immunity, the Thompson court found that the excessiveness of the force was clearly established at the time of the incident, which in Thompson occurred in 1998. The court looked first to Graham, which also involved excessive force against a diabetic. See Graham, 490 U.S. at 388, 109 S.Ct. 1865. There, an officer was suspicious of Graham when he saw him dash into a convenience store and come right out. Graham was in fact trying to get some orange juice because he was going into diabetic shock. The officer stopped Graham, and despite Graham’s protests and pleas, the officer placed him in the patrol car. Graham exited, ran around, and then passed out. The officer handcuffed him, and Graham ended up with a broken foot, bruises and abrasions. Ultimately, the officers discovered that nothing had happened in the convenience store, and Graham was released. Although the district court and circuit court both found that qualified immunity protected the officers against an excessive force claim, the Supreme Court held that the claim must be analyzed under the Fourth Amendment’s “objective reasonableness” standard and remanded for that analysis. Id. at 399, 109 S.Ct. 1865. It did not find that the officers were entitled to qualified immunity as a matter of law.

Thompson pointed to two other cases involving the use of excessive force, which it found clearly established the constitutional right to be free of force similar to that used on Magyar. In Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998), after officers used force against two individuals, throwing one to the ground and slamming the other into the hood of the patrol car, the court found that any reasonable officer would have recognized that the force used was excessive where the individuals were suspected of no crime and did not pose a threat to anyone. Similarly, in Spann v. Rainey, 987 F.2d 1110, 1114-15 (5th Cir.1993), the court found officers used excessive force in kicking and stomping on an individual who was suspected of no crime. In both of these cases, as noted in Thompson, no crime was suspected. Therefore, the use of such great force was deemed unreasonable.

This case is most similar to Thompson. The BSO did not suspect any criminal activity. They knew that the decedent had been in a vehicle accident. Despite this, they threw him to the ground, lay on top of him, and hogtied him. Such use of force against a person who has committed no crime and is not a danger to others has been established in the foregoing case law as excessive. Graham, Thornton, and Spann were decided well prior to the incident in this case, which occurred in 2001. Therefore, the law was clearly established that use of such force against a person not suspected of any criminal activity may be excessive and may constitute a violation of section 1983. The trial court erred in granting summary judgment as a matter of law on the qualified immunity of the officers.

The officers rely on Peete v. Metropolitan Government of Nashville & Davidson County, 486 F.3d 217 (6th Cir.2007), and Davidson v. City of Jacksonville, Florida, 359 F.Supp.2d 1291 (M.D.Fla.2005), to claim that the Fourth Amendment is inapplicable to the seizure in this case. Those cases both involve paramedics and not law enforcement personnel, a considerable distinction.

In Peete, for' example, the plaintiff brought an action against five firefighters/paramedics, claiming' that they used excessive force in restraining the decedent, who was having an epileptic seizure, by applying weight and pressure to his body and tying his hands and ankles behind his back. There, the decedent’s grandmother summoned emergency personnel to the scene. The decedent was unconscious and uncommunicative when paramedics arrived and died of asphyxiation caused by the paramedic care.

Analyzing whether there was a Fourth Amendment seizure, the court cited to standard formulations of an intentional interference with a person’s freedom of movement, or a show of authority and a submission to that show of authority. Id. at 220. Noting that the result must turn on the specific purpose and the particular nature of the conduct alleged in the complaint, the Sixth Circuit explained as follows: “[WJhere the purpose is to render solicited aid in an emergency rather than to enforce the law, punish, deter, or incarcerate, there is no federal case authority creating a constitutional liability for the negligence, deliberate indifference, and incompetence alleged in the instant case.” Id. at 221. See also Davidson, 359 F.Supp.2d at 1295 (finding the Fourth Amendment inapplicable when evidence established that, while the plaintiff physically resisted the defendant/emergency medical personnel, he was not “mentally present” to communicate a refusal of treatment, so no seizure occurred).

The Sixth Circuit distinguished Peete in a case involving law enforcement personnel. In McKenna v. Edgell, 617 F.3d 432 (6th Cir.2010), officers arrived in advance of paramedics to investigate a call that a man was having a seizure. When they arrived, they tried to-get the victim out of bed, and he resisted, causing injury. Firefighters arrived and the victim was already restrained. The district court rejected the officers’ claim of qualified immunity. The case was tried, resulting in a damage award to the plaintiff. On appeal, the circuit court affirmed the denial of qualified immunity to the officers. In discussing whether a right was clearly established and whether a seizure took place, the court reviewed Peete, which, the court noted, involved paramedics, not law enforcement officers, applying force. 617 F.3d at 436-37. It concluded that Peete ’s “applicability depends on a defendant’s objective function or purpose,” further expounding:

We conclude that whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that McKenna claimed violated the Fourth Amendment. If the officers acted as medical-emergency responders, then McKenna’s claim would amount to a complaint that he received dangerously negligent and invasive medical care. Under a function-dependent view of Peete, if any right to be free from such unintentional conduct by medical-emergency responders exists under the Fourth Amendment, it is not clearly established. Peete, 486 F.3d at 219. If the defendants acted in a law-enforcement (e.g., investigative or prosecutorial) capacity, however, McKenna’s claim does not “look[ ] like a medical malpractice claim,” id. at 222; rather, his claim is that he was subject to an unreasonable seizure and search. It is certainly clearly established that police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others.

Id. at 439-40 (footnote omitted). See also Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901-02 (6th Cir.2004) (holding that Fourth Amendment seizure occurred when officers first on scene handcuffed and hobbled mentally ill individual who resisted officer’s commands, resulting in his death). Finding that the capacity in which the officers were serving at the time of the seizure was an objective one, the court concluded that “[i]t is not relevant, therefore, whether [the officers] had a law-enforcement or a medical-response intent; the focus must be on what role their actions reveal them to have played.” McKenna, 617 F.3d at 440. In McKenna, a jury issue was presented, which was resolved against the officers, thus negating a qualified immunity defense.

Thompson did not discuss any potential medical emergency claim, thus implying that the officers conduct in restraining Magyar until an ambulance arrived was clearly a law enforcement function. Indeed, in both Thompson and in this ease, the law enforcement personnel took down the individuals, lay across them, and handcuffed them because the individuals refused to submit to their verbal commands, a law enforcement function. Therefore, as in Thompson, a jury question is presented. If the officers were acting in their law enforcement capacity, the decedent’s right to be free from the use of excessive force in his seizure was clearly established. The officers were not entitled to a summary judgment on qualified immunity as a matter of law.

Claim Against BCFR Paramedics

As mentioned above, the actions of medical personnel are treated differently than law enforcement officers in the few cases involving claims against medical personnel. In this case, the actions of the BCFR personnel alleged in plaintiffs complaint involve, for the most part, the paramedics’ failure to take vital signs, administer appropriate medications and oxygen, and positioning of the decedent in the ambulance ride to the hospital. As noted in Peete, “[t]he plaintiffs excessive force claim thus looks like a medical malpractice claim rather than a Fourth Amendment or Due Process violation.” 486 F.3d at 222.

A significant factor for the Peete court in its Fourth Amendment analysis rested on the unconsciousness of the decedent when the paramedics arrived. The court noted:

The plaintiff did not allege [intentional interference with freedom of movement or submission to a show of authority] in her complaint, nor is it likely that she could since Becerra was unconscious at the time of his encounter with the defendants and could not perceive any restraint on his liberty or otherwise feel compelled to submit to a governmental show of force.

Id. at 221 (emphasis supplied). To emphasize this, the court distinguished Green v. City of New York, 465 F.3d 65, 83-84 (2d Cir.2006), in which the Second Circuit found that a Fourth Amendment seizure had occurred where a non-verbal man conveyed with eye movements his objection to paramedics transporting him, which caused him injury. In the instant case, the decedent was confused, disoriented and uncommunicative when he was approached by BCFR personnel. By the time they began their treatment of him, he was already immobilized by the BSO deputies. Therefore, the show of force had already taken place. In the ambulance, the decedent was unresponsive and eventually unconscious.

Peete also relied on Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir.2005), in which rescue personnel were sued for failing to provide any medical assistance to Jackson, a shooting victim, who died while en route to the hospital in an ambulance. The court began with the premise that “[i]t is not a constitutional violation for a state actor to render incompetent medical assistance or fail to rescue those in need.” Id. Although the rule has two exceptions — the custody exception and the state-created danger exception — neither applied. Id. For the custody exception to apply, a restraint on personal liberty must occur. Id. Merely placing a person, particularly an unresponsive person, in an ambulance does not constitute custody for purposes of the exception. However, the Jackson court stressed that the emergency personnel did nothing to restrain the shooting victim. Id. at 590-91. In Jackson, the court expressly found no custody because the EMTs did nothing to restrain Jackson, such as using handcuffs. Id. In Peete, the court found no custody even though the EMTs used restraints and tied his hands and ankles behind his back, on the basis that such actions of restraint were taken while the victim was unconscious. 486 F.3d at 223. Thus, the custody exception appears to apply where there is an attempt to restrain personal liberty of an individual who is capable of expressing objection to such restraint. In this case, the decedent was restrained by the BSO prior to his transport. Applying Jackson, the paramedics would not be liable for merely failure to treat the decedent. Applying Peete, the decedent was unresponsive and eventually unconscious, incapable of responding effectively to his situation.

The state-created danger exception requires three elements:

(1) an affirmative act by the EMTs that creates or increases a risk that the decedent would be exposed to “private acts of violence,” (2) a special danger to the decedent such that the EMTs’ acts placed the decedent specifically at risk, as distinguished from a risk that affects the public at large, and (3) that the EMTs knew or should have known that their actions specifically endangered the decedent.

Jackson, 429 F.3d at 591 (quoting Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998)). Because the EMTs’ conduct in failing to treat Jackson did not expose him to acts of violence, the exception did not apply. Similarly, in this case the state-created danger exception does not apply, because the decedent was not exposed to “private acts of violence.”

In Davidson v. City of Jacksonville, 359 F.Supp.2d 1291 (M.D.Fla.2005), a case involving a qualified immunity claim against paramedics and fire rescue officers, the court addressed when a claim of Fourth Amendment seizure is inapplicable due to lack of refusal of medical treatment:

Here, while the evidence shows that Mr. Davidson physically resisted Defendants’ efforts to diagnose and treat him, there is no evidence that Mr. Davidson was aware of, or was mentally present in, the situation. Instead, it seems that any ‘resistance’ was merely a result of the diabetic episode of which Mr. Davidson was experiencing, and of which the emergency medical personnel [were] attempting to treat. The evidence before the Court establishes that Mr. Davidson was unable to communicate with or take direction from the medical personnel on scene. Had Mr. Davidson been lucid and able to communicate a refusal of treatment, including the type of restraint used, and had in fact refused treatment, such actions might properly fall under the Fourth Amendment. But under the facts of this case, the Fourth Amendment is inapplicable given the lack of refusal on Mr. Davidson’s part.

Id. at 1295. Based upon the foregoing cases, we agree with the trial court that the law was anything but clearly established that the paramedics and fire rescue personnel were violating a constitutional right of the decedent in their handling and treatment of him.

Alternatively, appellant claims that BCFR personnel violated the decedent’s Fourteenth Amendment due process rights through “deliberate indifference.” The court in Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir.2009), held that to prevail on a Fourteenth Amendment claim for deliberate indifference to a serious medical need, a plaintiff must show: “(1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3) causation between that indifference and the plaintiffs injury.” (citing Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir.2007)). Such claims were founded on the Eighth Amendment’s proscription on cruel and unusual punishment and treatment of prisoners. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). That was made applicable to the states and to pretrial detainees through the Fourteenth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-45, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). We have been unable to find a case in which the deliberate indifference claim has been successfully maintained against emergency personnel, as such claims have been limited to cases involving medical care during pre-trial detention and imprisonment. Indeed, federal courts have consistently held that there is no federal constitutional right to rescue services. See, e.g., Brown v. Commonwealth of Penn., Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 478 (3d Cir.2003) (“[T]here is no federal constitutional right to rescue services, competent or otherwise.”); Salazar v. City of Chicago, 940 F.2d 233, 237 (7th Cir.1991) (“Government generally has no constitutional duty to provide rescue services to its citizens, and if it does provide such services, it has no constitutional duty to provide competent services to people not in its custody.”); Bradberry v. Pinellas Cnty., 789 F.2d 1513, 1517 (11th Cir.1986) (“The Constitution, as opposed to local tort law, does not prohibit grossly negligent rescue attempts nor even the grossly negligent training of state officers.”).

The BCFR personnel in the case at bar were there for the purpose of rendering medical assistance to the decedent, who was uncommunicative after being involved in a rollover car accident. Like the men in both Peete and Davidson, the decedent did not cooperate with efforts to provide him medical treatment. A section 1983 claim involves the violation of a clearly established constitutional right. Mercado, 407 F.3d at 1158-59. Given the state of the law both at the time of this incident and even now, we cannot say that there was a clearly established constitutional right that the BCFR personnel violated. Therefore, BCFR personnel are entitled to qualified immunity in this case.

For the foregoing reasons, we reverse the order of summary judgment on qualified immunity as to the BSO officers and remand for further proceedings consistent with this opinion. We affirm the trial court’s final judgment as to the BCFR personnel.

POLEN, J., and EHRLICH, MERRILEE, Associate Judge, concur.


author: CIKLIN, J.

text:
    Patrick YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3760.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Antony P. Ryan, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Patrick Young was tried and convicted of a number of serious crimes including first-degree murder and armed robbery, stemming from a deadly early morning encounter at a residence in Broward County in 2007. Young raises multiple issues on appeal, none of which we find warrant reversal, but we write to discuss two of them.

Young and co-defendant Markinsey Me-tayer were tried together for the same crimes. In Metayer’s appeal, we laid out most of the facts relevant to the instant case:

The tragic shooting incident occurred in a Broward County home in the early morning hours of July 22, 2007. Following the incident, [Metayer] and ... Young were charged by indictment with Murder in the First Degree of Adam Jacobs (Count I), Attempted Murder in the First Degree of Jason Operle (Count II), Attempted Murder in the First Degree of Gregory Hunt (Count III), Armed Robbery of Adam Jacobs (Count IV), and Armed Robbery of Jason Op-erle (Count V).
At trial, Operle testified that late in the evening on July 21, 2007, he and his best friend, Jacobs, went out and had a few drinks. By around 5:30 a.m. on July 22, 2007, they returned to the house in Coral Springs where Jacobs was staying. They drank more alcohol and smoked a cigar rolled with marijuana and cocaine. That morning, Jacobs received several calls on his cell phone from his friend, ... Young. Young told Jacobs that he was going to stop by the house. Operle was friendly with Young. Operle testified that both Young and Jacobs were drug dealers. When Young arrived at the house, [Metayer] was with him. Op-erle had never seen [Metayer] before. They all sat down to eat breakfast at a table in the living room area. Operle laid down on a couch in the living room after finishing his meal. After Young and Jacobs completed a marijuana transaction, Young asked Jacobs about his gun. Jacobs then asked Young if he “was carrying.” Young answered in the affirmative and took his gun out of his right back pocket. Meanwhile, Jacobs retrieved his gun from a black bag and put it on the table. Young picked up Jacobs’s gun, comparing it to his gun. As Jacobs was seated at the table eating, Young stood up, put one of the guns back down, and then shot Jacobs in the chest. Jacobs fell to the ground. Op-erle described Jacobs as “gasping for air.” Operle did not hear Jacobs say any words, but heard noise.
Operle screamed and tried to jump off the couch. Young walked over toward Operle and shot him in the front shoulder, causing Operle to fall off the side of the couch. Young pointed a gun in Op-erle’s face and pulled the trigger, but the gun jammed. Young told Operle to “get on the ground.” When Operle got on the ground, Young kicked him in the face. Young then shot Operle in the back, behind his right shoulder. Operle testified that he went into convulsions, had a seizure, and lost consciousness. Operle estimated that he was unconscious for about 15 seconds, but was not really sure.
Operle heard Young tell [Metayer] to finish Jacobs off. According to Operle’s testimony, [Metayer] got up, grabbed one of the guns, stood over Jacobs, and shot him in the face. Jacobs died at the scene. It was later determined that Jacobs was shot twice with his own .45 caliber pistol.
As Operle was playing dead, Young took Operle’s sneakers, wallet, and watch. Operle then heard Young and [Metayer] going through the rest of the house. Operle eventually heard more gunshots in the house.
Meanwhile, Gregory Hunt was sleeping in the back bedroom of the home. He was awakened by several loud hand claps. [Metayer] opened the bedroom door and stuck his face inside. After Hunt indicated that the room was occupied, [Metayer] shut the door. Shortly thereafter, Hunt heard a gunshot, the bedroom door flew open, and Young came into the bedroom with a gun. Young shot Hunt in the back of his shoulder. Young pulled the trigger again, but the gun jammed and the cartridge was ejected onto the mattress. Young demanded Hunt’s money, but Hunt did not have any. Young then shot Hunt again just above the hip. Hunt passed out and the next thing he remembered was hearing the front door close.
Young and [Metayer] walked past Op-erle as they went out the front door. Operle never saw Young or [Metayer] take any money or drugs. As soon as Operle heard the car leave, he called 911. Operle and Hunt were both taken to the hospital.
Between 7:00 a.m. and 8:00 a.m. on the morning of the shootings, Young and [Metayer] arrived at the Miami home of Young’s girlfriend. Young was carrying a black bag. Young’s girlfriend later saw that the bag contained drugs, money, and a gun. She did not see any blood on Young’s body or clothing. [Metayer] left the house about five minutes later. Young put the money and drugs in a safe in his girlfriend’s bedroom closet. The following day, Young was arrested and the police recovered guns, drugs, and money from Young’s girlfriend’s house.
One of the guns recovered from Young’s girlfriend’s house, a .40 caliber S & W Taurus Millennium model, was examined and test fired by Alan Greenspan, a firearms examiner. Mr. Greenspan explained that although a 10 millimeter cartridge is proper for a .40 caliber weapon, it is possible to use 9 millimeter ammunition. However, when 9 millimeter ammunition is used, “sometimes it will extract and eject and sometimes it won’t.” Greenspan testified that the casings found on the couch and in the dining room at the crime scene were fired from the above-referenced .40 caliber Taurus Millennium model. However, there were two spent projectiles recovered from Operle’s body at the hospital; they were the types of bullets that most commonly would be loaded in a 9 millimeter casing. There were insufficient markings for Greenspan to determine whether the .40 caliber Taurus Millennium gun fired those bullets. Greenspan testified that it was possible those bullets could have been fired from any .40 caliber weapon.

Metayer v. State, 89 So.3d 1003, 1004-06 (Fla. 4th DCA 2012).

Additionally, the state offered into evidence photographs of an Uzi submachine gun and its accompanying 9 millimeter ammunition which were found in a safe belonging to Young’s girlfriend. The Uzi and its ammunition were the subject of a defense pre-trial motion in limine which the trial court denied.

Young was found guilty of all charges and was sentenced to five life terms. This appeal follows.

Young first argues that the trial court erred in permitting the admission of the photographs of the Uzi submachine gun and 9 millimeter ammunition found in his girlfriend’s safe. We review this decision for a clear abuse of discretion. See, e.g., Hall v. State, 107 So.3d 262, 273 (Fla.2012) (“Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” (citation and quotation marks omitted)). On appeal Young claims that the Uzi and its ammunition were not relevant to the charged crimes, and alternatively, any relevance was substantially outweighed by its unfairly prejudicial effect.

Under section 90.402, Florida Statutes (2007), all relevant evidence is admissible except as provided by law. “Relevant evidence is defined as evidence tending to prove or disprove a material fact....” McDuffie v. State, 970 So.2d 312, 326-27 (Fla.2007) (citations and quotation marks omitted).

For evidence of a firearm to be admissible as relevant in a criminal trial, the state must show a sufficient link between the weapon and the crime. See Agatheas v. State, 77 So.3d 1232 (Fla.2011). While there was no evidence that the Uzi was used in the triple shooting, two projectiles recovered from Operle’s body were the type of bullets that would most likely have been loaded in a 9 millimeter casing. The two weapons used were Jacobs’s .45 caliber handgun and Young’s .40 caliber handgun. Firearms expert Greenspan testified that 9 millimeter ammunition is not the proper ammunition for a .40 caliber gun; however, 9 millimeter ammunition could be used in it but would cause problems such as jamming. There was testimony at the trial that Young’s gun jammed twice during the shootings.

The state plausibly theorized that Young loaded 9 millimeter ammunition into his .40 caliber handgun which explained both the projectiles found in Operle’s body and why Young’s gun jammed twice. The Uzi and 9 millimeter ammunition were relevant to clarify why Young would have loaded his gun with marginally functional ammunition: because he had convenient and easy access to the 9 millimeter bullets.

While we believe that the Uzi and its ammunition were relevant, that does not end our analysis. Relevant evidence is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. (2007). We are aware that the danger of unfair prejudice is particularly significant when evidence of guns not used in the charged crimes is admitted. However, in the matter before us, the probative value of the Uzi and its ammunition explained an important facet of the case that defense counsel was sure to explore. The question before us is not whether the evidence is simply prejudicial but whether the probative value is substantially outweighed by the danger of unfair prejudice. Based on the facts of this case, we cannot say that it is.

Further, even if we were to conclude that the Uzi and 9 millimeter ammunition were irrelevant, we would find the error to be harmless because “there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (citation omitted). While the harmless error test is not an “overwhelming evidence test,” id. at 1139, in order to discern the potential impact of the supposed error on the jury, it is important to scrutinize the context in which it occurred, i.e., the trial. See Armstrong v. State, 73 So.3d 155, 170-71 (Fla.2011) (“A harmless error analysis ‘requires an examination of the entire record.’” (quoting DiGuilio, 491 So.2d at 1135)).

At no point during the fourteen-day trial did the state emphasize the Uzi or its ammunition, both of which were admitted in photograph form only — together with approximately 200 additional photographs. In closing argument, the state briefly mentioned the Uzi but only to point out that it explained why 9 millimeter ammunition was used in the shooting and why Young’s gun jammed twice. The relative impact of the Uzi was minimal when considered in the overall context of the extensive trial.

Young also argues that the trial court erred in permitting testimony that he was a drug dealer. In a previous hearing on defense counsel’s motion in limine, the trial court found this testimony to be relevant because it was inextricably intertwined with the charged crimes. We find no clear abuse of discretion in this conclusion.

“It is well-established that ‘[evidence of a collateral offense may be admissible on the ground that it is inextricably intertwined with the charged offense and therefore relevant to prove that offense.’ ” Ward v. State, 59 So.3d 1220, 1222 (Fla. 4th DCA 2011) (quoting Kates v. State, 41 So.3d 1044, 1045 (Fla. 1st DCA 2010)). “Evidence is ‘inextricably intertwined’ if it is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).” Id. (citing Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006)). However, we caution that just because a series of events precedes a criminal episode does not automatically make it inextricably intertwined and therefore relevant. See, e.g., Ward, 59 So.3d at 1223-24 (finding that extensive testimony and evidence about a shooting that preceded a police chase that resulted in the sole charge of fleeing or eluding a police officer was not inextricably intertwined).

The state’s account was that Young and Jacobs were both drug dealers and the triple shooting was the product of a “drug deal gone bad.” The evidence that Young and Jacobs were drug dealers was necessary to fully explain the events that occurred prior to and after the melee in order to understand the shooting itself.

Operle testified that just before the shooting volley began, Young accepted a bag of marijuana from Jacobs in exchange for a $100 bill. Young also took a bag from the residence before leaving which contained drugs. Therefore, we conclude that it was not an abuse of discretion for the trial court to find that evidence of Young’s occupation as a drug dealer was inextricably intertwined with the charged crimes. We also find that the danger of unfair prejudice did not substantially outweigh the probative value of this evidence.

Therefore, we affirm Young’s convictions and sentences. As we find his other arguments on appeal to be without merit, we decline to address them further.

Affirmed.

STEVENSON and TAYLOR, JJ., concur.

      . Last year, we reversed Metayer’s sole conviction for first-degree murder based on the admission of collateral firearms evidence that we found to be marginally relevant, unfairly prejudicial, and not harmless. See Metayer v. State, 89 So.3d 1003 (Fla. 4th DCA 2012).

      . While we reversed co-defendant Metayer’s sole conviction in this case due to the improper admission of collateral firearms evidence, we must clarify that the firearms at issue in his case were entirely different from the firearms in the instant appeal. The firearms found in Metayer’s mother’s residence in Miami six months after the shooting had limited probative value at best and unfairly prejudiced his case. Metayer v. State, 89 So.3d 1003, 1006-08 (Fla. 4th DCA 2012). Therefore, we are not constrained by our holding in Metayer.


text:
    Denniz DILICAN and Lori Dilican, Appellants, v. NORMANDY VILLAGE PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 4D12-587.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Rehearing Denied Oct. 25, 2013.
    Denniz Dilican and Lori Dilican, West Palm Beach, pro se.
    Joseph D. Lee of St. John Rossin Podes-ta Burr & Lemme, PLLC, West Palm Beach, and Jeannie A. Libegott of Marshall, Dennehey, Warner, Coleman & Gog-gin, Fort Lauderdale, for appellee.
   PER CURIAM.

The appellants appeal the final judgment of foreclosure and two non-final orders. We find that, as to the non-final orders, the appellants have not established reversible error.

As to the final judgment, the appellants raise multiple issues, but we find only two worthy of discussion. The appellants contend that the trial court erred in entering the final judgment while an appeal of a non-final order in the same case was pending. This argument has merit. See Fla. R.App. P. 9.130(f); Garcia-Lawson v. Lawson, 82 So.3d 137, 137 (Fla. 4th DCA 2012) (“Courts have interpreted [Rule 9.130(f) ] to mean that a trial court lacks the jurisdiction to render a final order while an appeal from a non-final order in the same case is pending and, if the trial court does so, the final order is a nullity.”).

The appellants also argue that the final judgment should not have been entered when their related counterclaim was pending, and we agree. See Peterson v. Affordable Homes of Palm Beach, Inc., 65 So.3d 112, 113 (Fla. 4th DCA 2011) (recognizing that “where summary judgment is granted for a plaintiff and a counterclaim remains pending, the trial court should stay the execution of the judgment pending the resolution of the counterclaim.”) (quoting Tooltrend, Inc. v. C.M.T. Utensili, S.r.L, 707 So.2d 1162, 1162 (Fla. 2d DCA 1998)). Although all but one of the counterclaim counts were dismissed, one count (claiming negligence) remains. Thus, final summary judgment of foreclosure should not have been ordered before the trial court considered this one remaining counterclaim. Accordingly, the trial court erred in entering final judgment. We therefore reverse the order granting summary judgment and remand this cause for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings.

LEVINE, FORST, JJ., and KLINGENSMITH, MARK W., Associate Judge, concur.


text:
    Peter Ray BEGGIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3339.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2013.
    Peter Beggio, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, CLARK, and RAY, JJ., concur.