author: JOINER, Judge. JOINER, Judge. WINDOM, Presiding Judge,

text:
    Donald Raymond SCOTT v. STATE of Alabama.
    CR-10-1418.
    Court of Criminal Appeals of Alabama.
    Feb. 15, 2013.
    On Return to Second Remand June 7, 2013.

      Donald Raymond Scott, pro se.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   On Return to Remand

JOINER, Judge.

Donald Raymond Scott appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. As addressed below, Scott’s underlying sentence is illegal; accordingly, we remand this matter for further proceedings.

In November 2006, Scott was convicted of unlawful distribution of a controlled substance, see § 13A-12-211, Ala.Code 1975, and was sentenced to 20 years’ imprisonment; Scott’s sentence was suspended, and Scott was ordered to serve 5 years on probation. In March 2008, Scott’s probation was extended for an additional two years. In January 2009, an “Officer’s Report on Delinquent Probationer” was filed alleging that Scott had violated the terms of his probation by being arrested for third-degree theft of property. (C. 21.)

The circuit court conducted a probation-revocation proceeding, the entirety of which is quoted as follows:

“THE COURT: This is CC-06-366, State of Alabama versus Donald Scott. Mr. Scott is before the Court on a petition to revoke his probation.
“Mr. Scott, the probation officer alleges that you have been arrested for a new offense, that is, theft of property in the third degree. Do you admit or deny that allegation?
“THE DEFENDANT: I deny. Your Honor.
“THE COURT: You deny that you have been arrested on it?
“THE DEFENDANT: I’ve been arrested on it. I deny the charges.
“THE COURT: What from the State?
“[THE STATE]: Your Honor, my records show that Mr. Scott’s been before the Court previous on this charge on a revocation where, I think, six months was imposed and probation was extended. Considering he has three pri- or felonies and had a 20-year sentence which was suspended to begin with, again, he’s had more than enough chances to bring his conduct within conformity of the law. I believe the standard for the picking up of a new charge is simply probable cause, not beyond a reasonable doubt, but certainly probable cause he committed a new offense. I think he’s used up his last chance, Your Honor.
“THE COURT: Do you agree?
“[PROBATION OFFICER]: Yes, Your Honor.
“THE DEFENDANT: I was the cashier at the time this incident happened.
“THE COURT: Don’t tell me too much about this because they can use what you say against you when they prosecute you on this case. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Your probation is revoked and you’re remanded to the custody of the State of Alabama Department of Corrections for execution of your sentence.
“THE DEFENDANT: Can I get an appeal bond?
“THE COURT: No. I’m not going to set an appeal bond, but you can appeal.”

(C. 3^4.) Following the hearing, the circuit court entered the following order:

“Defendant appeared in open court for probation revocation hearing on January 28, 2009. The State was represented by its Assistant District Attorney.
“The Court finds that the Defendant had sufficient notice and understanding of the charges against him.
“Testimony was received from the Defendant and the Probation Officer. The Defendant admitted the charges in the delinquency report. Based upon the evidence presented, the Court finds that no measure short of confinement will avoid depreciating the seriousness of the violation.
“It is therefore ORDERED, ADJUDGED and DECREED that the Defendant’s probation is due to be and is hereby revoked. Said revocation is based upon the following act(s) which occurred subsequent to the order of probation: (1) Defendant [ ] obtained a new arrest — Theft of Property in the Third Degree.
“After hearing testimony, considering the evidence presented, and court records, the Court finds that the Defendant’s probation is due to be and is hereby revoked and Defendant is ORDERED to serve his sentence of twenty (20) years in the custody of the Alabama Department of Corrections.”

(C1.6A-6B.)

Scott appealed the revocation of his probation and asked this Court to appoint appellate counsel. This Court denied Scott’s request for counsel and addressed the sole issue raised by Scott in his pro se brief — whether there was sufficient evidence presented at the probation-revocation proceeding to support the revocation; with two judges dissenting, this Court affirmed the judgment of the circuit court, concluding that Scott had failed to preserve for appellate review the sole issue raised on appeal. Scott v. State (No. CR-08-0702, Oct. 2, 2009), 64 So.3d 1153 (Ala.Crim.App.2009) (table).

In January 2011, Scott filed an in forma pauperis declaration and a standard Rule 32 form; Scott attached to his standard Rule 32 form a supplement in which he detailed his Rule 32 claims. Specifically, Scott challenged his probation revocation, claiming that

“[t]he [circuit] [c]ourt was without jurisdiction to render the judgment or to impose the sentence because Scott had right to counsel during his probation-revocation proceedings, and he was denied that right, and the trial court erred by failing to advise him of his right to request an attorney during the probation-revocation proceeding.”

(C. 12.) In support of his petition, Scott attached, among other things, a copy of the transcript of the probation-revocation proceeding. Shortly thereafter, Scott moved the circuit court to appoint counsel.

In its response to Scott’s petition, the State asserted that Scott did not request counsel at the probation-revocation proceeding, that Scott was not automatically entitled to counsel at the probation-revocation proceeding, and, finally, that Scott was not entitled to counsel at the probation-revocation proceeding because, the State said, Scott admitted the probation violation. (C. 32.) In his reply, Scott argued, among other things, that he “made a colorful [sic] claim that he had ‘not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer’ ” and, further, that his probation revocation was based solely on his arrest. (C. 84-35.) Although the circuit court subsequently set the matter for a hearing, the circuit court denied Scott’s request to be represented by counsel during the Rule 32 proceedings.

The circuit court conducted an evidentia-ry hearing, during which Scott asserted that “the trial court was without jurisdiction to render judgment or to impose the sentence because [Scott] had the right to counsel during [his] probation-revocation proceedings” (R. 4), and that “the trial court erred by failing to advise [Scott] of [his] right to request an attorney during the probation-revocation proceeding.” (R. 7.) Scott asserted during the hearing, as he did in his pleadings, that he was not represented by counsel at the probation-revocation proceeding, that he was not informed that he had a right to be represented by counsel at the probation-revocation proceeding, and, further, that he made a col-orable claim that he had not committed the alleged probation violation. (R. 4-5.) At the Rule 32 hearing, the State stood “on its motion that [it] filed.” (R. 8.) The circuit court denied Scott’s petition without a written order.

Scott now appeals the denial of his Rule 32 petition. Initially, this Court recognized that the circuit court had failed to enter a written order denying Scott’s petition following the evidentiary hearing and remanded this matter by order with directions that the circuit court enter an order in accordance with the requirements of Rule 32.9(d), Ala. R.Crim. P. The circuit court complied with our order, and entered the following written order:

“This case is before the Court on remand from the Alabama Court of Criminal Appeals. The Court now having reviewed the record in this case and having held an evidentiary hearing, it finds and Orders as follows:
“1. That the Defendant was before the Court on a petition to revoke his probation on January 28, 2009. At that hearing he did not request nor was he appointed counsel. His probation was revoked that the probated sentence was ordered to [be] executed.
“2. That on or about January 11, 2011, the Defendant filed a petition for Relief from Sentence pursuant to Rule 32, Alabama Rules of Criminal Procedure wherein he alleged that the Court was without jurisdiction to terminate his probation because it had failed to appoint counsel for him during the January 28, 2009 Probation Revocation Hearing. His Rule 32 petition was denied after a hearing on April 20, 2011. The reasons for the denial were not given as is required under Rule 32.9.
“3. The Court found during the April 20, 2011 hearing, that contrary to the Defendant’s claim, it did have jurisdiction to revoke the Defendant’s probation and order execution of his sentence in the absence of informing the Defendant that he may have a right to be represented by counsel during the revocation hearing. The Court further notes that although the Defendant denied that he had committed the alleged theft during the revocation hearing, he was later convicted of the offense.
“4. That the Court was not without jurisdiction to terminate the Defendant’s probation and the Defendant’s Petition for Relief from Sentence pursuant to Rule 32, Alabama Rules of Criminal Procedure is hereby denied.”

(Record on Return to Remand, C. 2-3.)

On appeal, Scott reasserts on appeal the two claims he raised below — that “[t]he [circuit] [c]ourt was without jurisdiction to render the judgment or to impose the sentence because Scott had [a] right to counsel during his probation-revocation proceedings, and he was denied that right” and also that “the trial court erred by failing to advise him of his right to request an attorney during the probation-revocation proceeding” — and argues that his petition was erroneously denied. In response, the State asserts that the judgment of the circuit court is sound.

On return to remand, however, we recognize that Scott’s underlying sentence is illegal and, therefore, we reverse the judgment of the circuit court imposing that sentence.

This Court stated in Moore v. State:

“ ‘Matters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). It is well settled that jurisdictional matters are of such magnitude that appellate courts may take notice of them at any time and may do so even ex mero motu. Nunn v. Baker, 518 So.2d 711 (Ala.1987); State v. Crittenden, 17 So.3d 253 (Ala.Crim.App.2009); State v. Isbell, 955 So.2d 476 (Ala.Crim.App.2006). Therefore, this Court may take notice of an illegal sentence, even though Moore did not raise the issue in the circuit court or in his brief on appeal. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App.2000); Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

40 So.3d 750, 753 (Ala.Crim.App.2009). The circuit court sentenced Scott to 20 years’ imprisonment, suspended Scott’s term of imprisonment in its entirety, and placed Scott on probation; although Scott’s probation was eventually revoked, the circuit court was without jurisdiction to impose Scott’s original sentence. See § 15-22-50 (“The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 15 years.”).

This Court in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), recently addressed the effect of probation revocation following the imposition of an illegal sentence. In Enfinger, Enfinger pleaded guilty to sexual abuse of a child under 12, see § 13A-12-69.1, Ala.Code 1975, and his sentence was split; Enfinger’s probation was eventually revoked, and he appealed. On appeal, this Court first recognized that, because of the nature of Enfinger’s offense — “a criminal sex offense involving a child” — “the circuit court did not have the authority to either impose a split sentence or to impose a term of probation.” En-finger, 123 So.Sd at 537. Therefore, this Court concluded that the circuit court’s purported probation-revocation order was unauthorized because the circuit court “had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation.” Enfinger, 123 So.3d at 538.

The majority opinion illustrated the necessity of the holding, stating as follows:

“[HJolding that a circuit court can remedy the imposition of an improper split sentence by revoking a defendant’s probation could lead to an absurd result. For example, a defendant serving a sentence that is improper under the Split-Sentence Act could be charged with violating the terms and conditions of his probation and the circuit court could thereafter revoke that defendant’s probation. On appeal, the defendant could contend that the evidence was insufficient to support the revocation of his probation, and if, after a review of the record, this Court determined that the defendant is, in fact, correct, we would be forced to hold that, although the evidence was insufficient to support the revocation, the imposition of the remainder of his sentence is correct because the circuit court could not have imposed a split sentence. Such a result is unsound and untenable.”

Enfinger, 123 So.3d at 539. This case falls within the realm envisioned by this Court in Enfinger.

First, Scott’s sentence of 20 years’ imprisonment was suspended, resulting in an illegal sentence, and Scott was placed on probation. Second, as is evident by the above-quoted probation-revocation proceeding, Scott’s probation was revoked following a suspect probation-revocation proceeding. Third, and finally, Scott filed a Rule 32 petition for postcon-viction relief in which he argued that “the trial court erred by failing to advise him of his right to request an attorney during the probation-revocation proceeding.” This argument is meritorious and, were Scott entitled to probation, he would be entitled to relief on this claim. Scott, however, is not entitled to probation, and, thus, this Court cannot afford Scott the relief he currently seeks; thus, the question of Scott’s illegal sentence is the only issue that remains.

Scott’s sentence is illegal and the circuit court was without jurisdiction to revoke Scott’s probation, see Enfinger; because the circuit court did not have the authority to revoke Scott’s probation, the circuit court’s order purporting to do so was without effect.

Accordingly, the judgment of the circuit court sentencing Scott and purporting to suspend that sentence is reversed, and this case is remanded to the circuit court for proceedings consistent this opinion, including resentencing. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WELCH and BURKE, JJ., concur.

KELLUM, J., concurs in the result.

WINDOM, P.J., dissents.

On Return to Second Remand

JOINER, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, KELLUM, and BURKE, JJ., concur.

WINDOM, P.J., dissents, with opinion.

WINDOM, Presiding Judge,

dissenting.

The issue upon which this Court based its reversal of the circuit court’s order denying Donald Raymond Scott’s Rule 32, Ala. R.Crim. P., petition challenging the revocation of his probation was moot. See Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012) (Windom, P.J., dissenting). Therefore, I respectfully dissent.

       Note from the reporter of decisions: On November 23, 2011, the Court of Criminal Appeals remanded this case by order.

      . As discussed later in the opinion, Scott appealed the outcome of the probation-revocation proceeding. Scott v. State (No. CR-08-0702, Oct. 2, 2009), 64 So.3d 1153 (Ala.Crim.App.2009) (table). We take judicial notice of the record before this Court in CR-08-0702, in which Scott appealed the revocation of his probation. Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998). Citations to the record in CR-08-0702 will be reflected by the use of "Cl” to reference the clerk’s record and “Rl” to reference the reporter’s transcript.

      . See Rule 32.7(c), Ala. R.Crim. P. ("If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel.”).

      . First, there is a ground under which Scott is entitled to relief under Rule 32.1, Ala. R.Crim. P. Although Scott’s first argument was couched in jurisdictional terms, this argument is clearly a claim under Rule 32.1(a), Ala. R.Crim. P., that ‘‘[t]he constitution of the United States or the State of Alabama requires a new trial, a new sentencing proceeding, or other relief”; specifically, Scott argued in his petition that the circuit court's failure to advise him of his right to counsel was "error” and asked the trial court to ”set[] aside the revocation of his probation.” (C. 18.)
      Second, Scott’s claim is legally correct and sufficiently pleaded. Rule 27.5(a)(3), Ala. R.Crim. P., provides, among other things, that when a probationer is arrested following the initiation of probation-revocation proceedings, the probationer "shall” be ”advise[d] ... of his or her right to request counsel.” This Court in Law v. State, 778 So.2d 249, 251 (Ala.Crim.App.2000), however, recognized that
      " 'a trial court’s failure to inform an accused of his right to request counsel is not necessarily fatal to its case. Unless [the probationer’s] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.’ ”
      (Quoting Kitchens v. State, 234 Ga.App. 785, 787, 508 S.E.2d 176, 179 (1998) (citations, quotations, and emphasis omitted).) It is well settled that "a 'mere arrest’ or the filing of charges is an insufficient basis for revoking probation.” Gates v. State, 629 So.2d 719, 720 (Ala.Crim.App.1993). In light of the fact that Scott did not admit to the underlying charges, this case would be the type in which appointment of counsel would be warranted; the evidence is undisputed that Scott was not advised that he was entitled to counsel — the circuit court recognized this fact in its written order on remand — and it was error of the circuit court not to advise Scott that he was entitled to counsel. See Davis v. State, 855 So.2d 1142 (Ala.Crim.App.2003) (holding that, when a defendant does not admit the charges, disputes the underlying charges, and the State presents no evidence in support of the allegations found in the delinquency report, a probationer has "a colorable claim that he did not commit the alleged violations”).
      Third, and finally, we cannot say that this claim is precluded under Rule 32.2, Ala. R.Crim. P. Although the State now makes this argument on appeal, neither the State nor the circuit court addressed this issue below, and, thus, it is waived. See Ex parte Clemons, 55 So.3d 348 (Ala.2007) (recognizing that "[bjecause the State waived the pre-clusive bars of Rule 32.2(a) by not raising them in the trial court, it may not raise those bars here as a defense").

      . We note that the same judge imposed Scott's illegal sentence, revoked Scott's probation, and denied Scott's Rule 32 petition.

      . Although the record indicates that Scott was convicted as the result of a plea bargain, the record is unclear as to whether Scott’s sentence was part of the plea bargain. Thus, “it is impossible for this Court to determine whether resentencing [Scott] will affect the voluntariness of his plea.” Austin v. State, 864 So.2d 1115, 1119 (Ala.Crim.App.2003). If the suspended sentence was a term of Scott’s "plea bargain” and if he moves to withdraw his guilty plea, the circuit court should conduct a hearing to determine whether withdrawal of the plea is necessary to correct a manifest injustice. See Rule 14.4(e), Ala. R.Crim. P.


source: Caselaw Access Project

author: RAY, J.

license: Public Domain

text:
    Antonio GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1074.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Rehearing Denied Oct. 17, 2014.

      Nancy A. Daniels, Public Defender; and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   RAY, J.

Antonio Garrett appeals his conviction and sentence for first-degree murder and possession of a firearm by a convicted felon. His sole defense at trial was the justifiable use of deadly force in self-defense when faced with an imminent threat of death or great bodily harm. On appeal, he argues that the trial court reversibly erred by instructing the jury that possession of a firearm by a convicted felon constitutes unlawful activity because the instruction triggered an evaluation by the jury of whether Garrett had a duty to retreat, when Garrett claims no such duty existed. While we agree that the trial court improperly instructed the jury on this point, we conclude that the error did not rise to the level of fundamental error. Under the complete set of instructions given, the jury was not precluded from excusing Garrett for his deadly act if it believed that the evidence supported his claim of self-defense. We affirm Garrett’s conviction and sentence.

I.

The State’s theory of the case was that the victim, Jerry Ford, was sitting on the front porch of his duplex late one night, unarmed and minding his own business. Earlier the same day, during Ford’s intermittent arguments with Garrett, Garrett left the premises several times and then returned, with their disagreement renewed. When Ford’s girlfriend tried to reduce the tensions, Ford told her to go inside. Shortly after midnight, Garrett completely lost patience and was ready to put an end to the dispute. Holding a firearm behind his back, Garrett returned to the scene and, standing on the sidewalk outside the front gate of the residence, repeatedly fired the weapon in Ford’s direction. As Ford rose from his porch chair to try to save himself, the gunshots took him to the ground. After the shooting, Garrett walked away with the gun in his hand and was heard to remark: “I told you about f-ing with me.” Ford died several hours later. Garrett’s identity as the shooter was not at issue. A neighbor who witnessed the events leading up to the episode did not see anything in Ford’s hands, and law enforcement found no firearm on Ford’s body.

The defense’s theory was that Ford and Garrett had both consumed alcohol and attended a party in a neighbor’s yard earlier that day, although they were not seen at the party at the same time. Ford was sitting on his front porch for much of the day and spent some of that time talking to Garrett. Garrett became increasingly annoyed by Ford’s conduct as the night fell. During a confrontation, Ford was observed softly pushing Garrett. About thirty minutes later, gunshots were heard. The evidence indicated that Garrett discharged a .45-caliber semi-automatic pistol multiple times toward Ford’s porch. Defense counsel argued, however, that Garrett was not the only person armed. A rifle was found in the yard of the duplex after the shooting.

After being read his rights, Garrett gave an interview to the police following the shooting. Garrett stated that Ford had kept “digging at” him and putting his hands in Garrett’s face, despite Garrett’s begging Ford to back off and leave him alone. Garrett admitted repeatedly leaving the scene of the bickering and walking around the corner, only to return each time.

Garrett described to the police the events that immediately preceded the firing of shots. Upon seeing Garrett return to the scene, Ford left his porch, went into his residence, grabbed a .22-caliber long rifle, and came back out with the rifle by his side. Garrett was standing on the sidewalk outside the gate. Garrett told the police that after Ford pointed his rifle at him, Garrett pulled out his own gun and fired multiple shots as Ford ran back toward the porch. As Ford was running, he was trying to cock his rifle at the same time. Garrett admitted continuing to shoot even after Ford dropped his rifle.

After his apprehension, Garrett led law enforcement to a site where he had hidden a .45-caliber semi-automatic pistol, which was operable and had two live rounds in the magazine. Four fired bullets found at the site of the shooting matched Garrett’s pistol. Seven .45-caliber shell casings discovered at the site were fired from that pistol. Ford’s autopsy revealed three gunshot wounds to the back side; the cause of death was multiple gunshot wounds. Garrett did not testify at the trial, but the jury heard his redacted police interview.

The theory of self-defense was that Garrett’s actions constituted justifiable use of deadly force to prevent imminent death or great bodily harm, or the imminent commission of a forcible felony: attempted second-degree murder and/or aggravated battery. The parties stipulated that Garrett had a prior felony conviction. Without an objection, the trial court gave the following written instructions regarding the justifiable use of deadly force:

An issue in this case is whether Antonio Garrett acted in self-defense. It is a defense to the offense with which Antonio Garrett is charged and all lesser included offenses if the death of or injury to Jerry Ford resulted from the justifiable use of deadly force.
“Deadly force” means force likely to cause death or great bodily harm.
The use of deadly force is justifiable only if Antonio Garrett reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting another’s attempt to commit Attempted Murder in the Second Degree and/or aggravated battery.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent:
1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of Attempted Murder in the Second Degree and/or Aggravated Battery, against himself or another.
In deciding whether Antonio Garrett was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing Antonio Garrett need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, Antonio Garrett must have actually believed that the danger was real.
If Antonio Garrett was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself oh to prevent the commission of a forcible felony.
However, if you find that Antonio Garrett was engaging in unlawful activity then you must consider if Antonio Garrett had a duty to retreat.
Antonio Garrett cannot justify the use of force likely to cause death or great bodily harm unless he used every available means within his power and consistent with his own safety to avoid the danger before resorting to that force. The fact that Antonio Garrett was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could have avoided the use of that force. However, if Antonio Garrett was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable.

Over objection, the court instructed the jury that “[possession of a firearm by a convicted felon constitutes unlawful activity.”

The jury found Garrett guilty on both counts. He was sentenced to life in prison for first-degree murder, and to a concurrent fifteen-year term for possession of a firearm by a convicted felon.

II.

Garrett contends that the trial court reversibly erred by instructing the jury that “[possession of a firearm by a convicted felon constitutes unlawful activity,” because it required the jury to consider whether Garrett had a duty to retreat. He argues that because he established that his use of deadly force was justified to prevent the imminent commission of a forcible felony, he did not have a duty to retreat, regardless of his unlawful possession of a firearm. In failing to raise this specific legal argument or ground at the charge conference or otherwise at trial, Garrett did not preserve it for appellate review. Occhicone v. State, 570 So.2d 902, 905-06 (Fla.1990); Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987). Accordingly, our review is for fundamental error. See § 924.051(3), Fla. Stat. (2011).

Fundamental error is error that reaches down “into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Maddox v. State, 760 So.2d 89, 96 (Fla.2000). To determine whether fundamental error occurred in the court’s instruction to the jury, we must consider “the effect of the erroneous instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel.” Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011). Where “the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant.” Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985).

A.

“[S]elf-defense is ... an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense.” Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010). The law governing the justifiable use of deadly force in self-defense is contained in chapter 776, Florida Statutes (2011), certain provisions of which are colloquially known as the “Stand Your Ground” law. The following two sections of the law are arguably at play:

776.012 Use of force in defense of person. — A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

(Emphasis added).

Section 776.013 is titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm.” Subsection (3) of this provision states:

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

(Emphasis added).

Garrett argues that he established that his use of deadly force was justified under section 776.012(1) to prevent Ford’s imminent commission of a forcible felony (ie., attempted second-degree murder and/or aggravated battery against Garrett). Therefore, he submits, the court erred by instructing the jury regarding his unlawful activity because it required the jury to consider whether he had a duty to retreat in a situation where no such duty existed. Section 776.012(1) provides that a person using deadly force in circumstances in which the perceived threat of death or great bodily harm is imminent does not have a duty to retreat. While Garrett acknowledges that a “duty to retreat” analysis would be necessary under section 776.013(3) because of his unlawful activity, he contends that sections 776.012 and 776.013 provide separate and distinct bases under which the justifiable use of deadly force may be asserted, so that the “unlawful activity” preclusion in the latter is irrelevant to the operation of the former.

In support of his position, Garrett relies on Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013), which held that a person is not precluded from claiming immunity from criminal prosecution under the circumstances in section 776.012, even though the person was engaged in unlawful activity at the time. Id. at 221-22. The Court reasoned that section 776.032(1), Florida Statutes (2009), provides immunity from criminal prosecution for persons using force as permitted in section 776.012 or section 776.013, and the requirements of each are not identical. Id. Because Little had established by a preponderance of the evidence that his use of force was justified to prevent imminent death or great bodily harm as required in section 776.012(1), he was entitled to immunity, regardless of his status as a felon in illegal possession of a firearm. Id. at 222.

The arguments raised by State in Little are essentially the same as those raised in the instant case. The State maintains that the extraordinary self-defense privilege afforded by the “Stand Your Ground” law is reserved for law-abiding citizens only. It asserts that section 776.012(1) does not provide a basis for a person engaged in unlawful activity to be excused from the use of deadly force in self-defense, for such an interpretation would directly contradict the express legislative intent of section 776.012 and render the “unlawful activity” preclusion of section 776.013(B) meaningless. For the reasons expressed by the Second District Court of Appeal in Little, and those recently articulated in the Fourth District Court of Appeal’s en banc decision in Hill v. State, 143 So.3d 981, 2014 WL 3434445 (Fla. 4th DCA July 16, 2014), we reject the State’s position.

Garrett’s affirmative defense of self-defense, like Little’s claim of immunity, was based on the language in section 776.012. Because Garrett presented some evidence to support his claim of justifiable use of deadly force to prevent imminent death or great bodily harm or the imminent commission of a forcible felony by Ford, Garrett was entitled to request and receive an instruction reflecting section 776.012(1). See Smith v. State, 424 So.2d 726, 732 (Fla.1982) (“[A] defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions.”). .The fact that he was a convicted felon in unlawful possession of a firearm did not apply to the jury’s consideration of whether Garrett had a duty to retreat under section 776.012(1). Therefore, it was error for the trial court to instruct the jury regarding Garrett’s unlawful conduct in relation to his claim of self-defense.

B.

Despite the improper instruction, we do not conclude that the error reached down into the validity of the trial so as to render Garrett’s trial fundamentally unfair. When the entirety of the jury instructions relating to Garrett’s claim of self-defense are considered, the jury was not precluded from considering Garrett’s affirmative defense, regardless of his unlawful activity.

According to Garrett’s version of events, Ford was armed with a .22-caliber long rifle and had just pointed it at Garrett. Garrett pulled out his own gun and fired it in Ford’s direction as Ford ran off while trying to cock his weapon. To prevail on his claim of self-defense, Garrett needed to establish that he had a reasonable belief that his use of deadly force was necessary to prevent the imminent danger presented by Ford. While the improper instruction required the jury to consider whether Garrett had a duty to retreat, the jury was also instructed that if Garrett “was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable.” (emphasis added).

Under the complete set of instructions given, the jury could have found that Garrett’s use of deadly force was justified and he had no duty to retreat because retreating would be futile given the “imminence” of the danger he faced. Although the challenged sentence in the instruction raised a “duty to retreat” question, in considering the effect of the instruction in the context of the other instructions given, along with the evidence adduced in the case, we find that the jury was sufficiently instructed on Garrett’s theory of self-defense. There was ample evidence presented for the jury to find that from the beginning of the incident, Garrett did not have a reasonable belief that deadly force was necessary to prevent an imminent threat against him, especially after Ford dropped his rifle and Garrett continued to shoot. That the jury ultimately rejected Garrett’s claim of self-defense does not mean that the challenged instruction constituted fundamental error.

Our reasoning is consistent with the analysis and holding in Hardison v. State, 138 So.3d 1130 (Fla. 1st DCA 2014). Hardison appealed a conviction and sentence for second-degree murder, asserting it was fundamental error to give the standard instruction on the justifiable use of deadly force. Specifically, he contended that the instruction was inconsistent with applicable law, in that it effectively made the defense available only to persons not engaged in unlawful activity. Like Garrett, Hardison was a convicted felon in possession of a firearm at the time of the incident. Id. And as in the instant case, the trial court in Hardison instructed the jury on justifiable use of deadly force, using the standard instruction that tracks section 776.012, combined with instructions relating to section 776.013: “[i]f the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground,” and “[possession of a firearm by a convicted felon is an unlawful activity.” Id. at 1131-32.

At Hardison’s request, however, the judge also instructed the jury that “in certain circumstances, a ' convicted felon may lawfully possess a firearm.” One of those circumstances exists when the felon was in “present, imminent and impending peril of death or serious bodily injury, or reasonably believed himself or others to be in such danger.” Id. In concluding that no fundamental error occurred in Hardison, we determined that this additional instruction kept the jury from assessing Hardi-son’s defense based solely on his unlawful possession of a firearm. Id. at 1135.

[W]hen we consider the complete instruction on justifiable use of deadly force given in this case, we find the jury was sufficiently instructed that, absent a reasonable belief he was under threat of imminent death or great bodily harm, or imminent commission of a forcible felony, Hardison’s use of deadly force in self-defense was not justified. The evidence put before the jury could support a finding that, Hardison’s belief that the threat was imminent was unreasonable, whether or not he was engaged in unlawful activity.

Id. (emphasis in original).

Similarly, when viewing the jury instructions in the instant case as a whole, Garrett’s claim of self-defense turned on whether the evidence before the jury supported a reasonable belief that Garrett was under threat of imminent death or great bodily harm or the imminent commission of a forcible felony by Ford. The erroneous instruction did not affect the jury’s ultimate responsibility to determine whether the threat faced by Garrett was imminent, in which case retreat would be futile and his use of deadly force would be justified, irrespective of whether he was engaged in unlawful activity at the time. Finding no fundamental error, we affirm the conviction and sentence.

CLARK and WETHERELL, JJ., concur.

      . During the charge conference, defense counsel asked that this sentence, which the State requested based on Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011), not be read. When asked for the legal basis for the objection, defense counsel stated that the case doesn’t require that the challenged language be included in the jury instruction.

      . We note that section 776.012, Florida Statutes (2011), has since been amended to include the "unlawful activity” preclusion contained in 776.013(3). The relevant portion of section 776.012 now reads: "[A] person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.” (emphasis added). Ch. 2014-195, § 3, Laws of Fla. (effective date June 20, 2014).


author: LAMBERT, J.

text:
    Theresa A. SEIGLER, F/K/A, Theresa A. Bell, Petitioner, v. Robin BELL, Respondent.
    No. 5D14-642.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Rehearing and Rehearing En Banc Denied Oct. 15, 2014.

      Christie L. Mitchell, Orlando, for Petitioner.
    Vicki Levy Eskin, Longwood, for Respondent.
   LAMBERT, J.

Theresa A. Seigler (“Mother”) petitions this court to issue a writ of certiorari and a writ of mandamus regarding the order granting Robin Bell’s (“Grandmother”) motion for rehearing or reconsideration in a proceeding to revoke a temporary custody order entered pursuant to chapter 751, Florida Statutes. For the reasons set forth below, we dismiss the petition for writ of certiorari for lack of jurisdiction and deny the petition for writ of mandamus.

On November 24,1999, Mother executed a “Consent to Temporary Custody,” agreeing to provide temporary custody of her son (“Child”) to Grandmother. On November 27, 2001, the trial court entered an order granting temporary custody of Child to Grandmother. Almost nine years later, on March 23, 2010, Mother filed a motion for visitation, seeking “a significant amount of visitation” with Child, and, on May 7, 2010, Grandmother filed a motion for supervised visitation. The matter was referred to a general magistrate, and based on the parties’ stipulation that supervised visitation would serve Child’s best interests, the trial court granted Grandmother’s motion. The supervised visitation with Mother did not go well, and, after four visits, Grandmother stopped bringing Child and advised the supervising entity that Child did not want to visit. The relationship between Mother and Grandmother deteriorated, with Mother asserting that Grandmother was purposely hindering the development of Mother’s relationship with Child, and with Grandmother asserting that (1) Child did not want to develop a relationship with Mother and (2) Child considered Grandmother to be his “mom.”

On November 10, 2010, Mother filed her “Motion to Revoke Temporary Custody by Extended Family,” alleging that Grandmother acquired temporary custody of Child based on Mother’s consent, due to Mother’s then-inability to care for Child. The motion asked the trial court to terminate the temporary custody because Mother had become, and continues to be, able to provide Child with a stable and loving home and provide for his needs. The trial court appointed a guardian ad litem (“GAL”) to represent the best interests of Child, and the matter was again referred to the same general magistrate.

The parties litigated for approximately 18 months before the general magistrate issued his report and recommendation on May 24, 2012. The magistrate noted that the relationship between Mother and Grandmother had deteriorated, but found that “it is uncontroverted that both [Grandmother] and [Mother] love the child beyond measure and wish to act in what they believe to be in the best interests of the child.” The magistrate further found that Mother was drug-free, married, and living with her husband and younger children, that Mother and her husband were gainfully employed, and that Mother had been receiving counseling in anticipation of receiving custody of Child. However, the magistrate found that Child, an intelligent and articulate 13-year-old, did not seem interested in getting to know Mother, but noted that Grandmother had prevented Mother from having contact with Child for several years, making it unclear whether Child’s “feelings or lack of feelings toward [Mother] originated with [Child] or some other person or persons.”

The magistrate concluded that, while a change in custody without a transition ;period would be harmful to Child, custody should eventually be restored to Mother, with liberal “time-sharing and visitation” between Grandmother and Child. The magistrate recommended that the trial court: (1) grant Mother’s motion to revoke temporary custody; (2) order the parties to attend family counseling and Child to attend individual counseling; (3) establish a 64-week incremental reunification period before Mother takes full-time physical custody of Child; and (4) provide liberal and frequent “contact, access, visitation, and time-sharing” between Grandmother and Child, even after full custody is restored to Mother.

Both Mother and Grandmother filed exceptions to the magistrate’s report. On January 11, 2013, the trial court entered its order denying Grandmother’s exceptions, granting Mother’s exceptions, and modifying the magistrate’s report as follows: (1) removing visitation between Grandmother and Child after full-time custody is restored to Mother; and (2) holding erroneous as a matter of law the conclusion that an immediate change in custody from Grandmother to Mother would be detrimental to Child because “detriment to child” is a “legal conclusion,” and the magistrate’s findings of fact were inconsistent with the definition of “detriment to child.”

On January 23, 2013, Grandmother filed a “Motion for Rehearing or Reconsideration” of the January 11, 2013 order, asserting that Child and the GAL wished to provide testimony to the trial court, and asking the trial court to receive such testimony and reconsider its order on the parties’ exceptions to the magistrate’s report. Grandmother also filed a motion for an in-camera interview of Child and a motion to stay.

On February 14, 2013, prior to ruling on Grandmother’s motions, the trial court entered an amended order signed nunc pro tunc as of January 11, 2013, granting Mother’s exceptions to the magistrate’s report and denying Grandmother’s exceptions. The only difference between the January 11, 2013 order and the amended order is that the trial court further modified the magistrate’s report by also removing the provision for the 64-week incremental reunification period. The report, as modified, provides that full-time, permanent custody of Child be immediately transferred to Mother without a transition period, and without any further right to visitation for Grandmother.

Despite the foregoing, on February 25, 2013, the trial court granted Grandmother’s motions to stay and for in-camera interview of Child. However, on February 26, 2013, the trial court entered an order denying Grandmother’s January 23, 2013 motion for rehearing or reconsideration. Nonetheless, the following day, the trial court proceeded with the in-camera interview of Child. After hearing from the GAL and conducting its in-camera interview of Child, the trial court sua sponte entered an order on April 5, 2013, vacating its February 26, 2013 order denying Grandmother’s motion for rehearing, stating that it was “signed in error.”

A hearing on Grandmother’s motion for rehearing or reconsideration was scheduled for November 15, 2013. Grandmother filed a motion for continuance and a hearing on the motion was held. On November 15, 2013, the trial court entered an order signed nunc pro tunc as of November 4, 2013, granting Grandmother’s motion to continue, but requiring the parties to submit written arguments “in lieu of personal attendance and oral argument.” After reviewing the parties’ timely-filed memoranda, the trial court entered an order dated January 24, 2014, granting Grandmother’s motion for rehearing or reconsideration, stating that it failed to consider evidence as to the best interests of Child in allowing the custody change to Mother without a transition period.

CERTIORARI

In this portion of her petition, Mother asserts three reasons why she believes the trial court departed from the essential requirements of law when it granted Grandmother’s motion for rehearing or reconsideration: (1) Grandmother’s motion for rehearing was untimely; (2) the trial court granted the motion based on its stated failure to consider evidence that is irrelevant to the legal standard applicable in a motion to revoke temporary custody by an extended relative; and (3) the trial court lost jurisdiction over the case because the motion for rehearing was untimely. In response, Grandmother argues that: (1) her motion for rehearing was timely despite the fact that her motion was filed 12 days after the January 11, 2013 order because Florida Rule of Civil Procedure 1.530 was amended, effective January 1, 2014, to extend the time to file a motion for rehearing from 10 to 15 days, and that amendment should be applied retroactively to her filing in January 2013; and (2) even if this court finds that the amendment to rule 1.530 does not apply retroactively, the trial court correctly considered Grandmother’s motion on public policy grounds.

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.” Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007) (citing MaHin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)). The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional. See Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344, 351 (Fla.2012) (citing Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999)); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648-9 (Fla. 2d DCA 1995). An appellate court must find irreparable harm before it may consider whether there has been a departure from the essential requirements of the law. See Citizens Prop. Ins. Corp., 104 So.3d at 351 (citing Williams v. Oken, 62 So.3d 1129, 1132-33 (Fla.2011)).

To explain why we are dismissing the petition for writ of certiorari, we find it necessary to clarify first the nature and effect of the trial court’s amended January 11, 2013 order on the parties’ exceptions to the magistrate’s report and, second, how our determination of the effect of the order affects the consideration of Grandmother’s January 23, 2013 motion for rehearing or reconsideration. Our discussion of the January 11, 2013 order requires us to discuss the role of magistrates and the effect of their reports and recommendations.

I. The Trial Court’s Order on the Parties’ Exceptions to the Magistrate’s Report Was Not a Final Judgment

Once a magistrate carries out his or her duties pursuant to the referral from the trial court, the magistrate must file a report and recommendation and serve copies on the parties. Fla. Fam. L. R. P. 12.490(f). While a magistrate’s report is more than a mere recommendation, it is not a final judgment, as magistrates lack the authority to enter final judgments. See Lackner v. Cent. Fla. Invests., Inc., 14 So.3d 1050, 1053 (Fla. 5th DCA 2009) (citing Bell v. Bell, 307 So.2d 911, 914 (Fla. 3d DCA 1975)). The parties are permitted to file exceptions to the report that the trial court must hear. Fla. Fam. L. R. P. 12.490(f). Even when no exceptions are filed, the trial 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 facts[,] the court is justified in entering the judgment recommended” by the magistrate. Lackner, 14 So.3d at 1053(quoting Bell, 307 So.2d at 914). Then, the trial court “shall take appropriate action on the report.” Fla. Fam. L. R. P. 12.490(f) (emphasis added).

A magistrate’s report does not have any adjudicatory effect unless and until the trial court adopts it as the order or judgment of the court. See Norris v. Norris, 28 So.3d 953, 954 (Fla. 2d DCA 2010). It is the trial court’s responsibility to reduce the report to a proper order or judgment, clearly indicating that the court is adopting the report as its own order or judgment. Id. (citing Wellborn v. K-Beck Furniture Mart, Inc., 54 Ohio App.2d 65, 66, 375 N.E.2d 61 (1977)). Merely “approving” the magistrate’s report is not sufficient to effect an appealable final judgment. See id. at 954-55 (finding that the circuit court’s order approving the magistrate’s reports and recommendations was not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130).

We find that neither the trial court’s order nor its amended order on the parties’ exceptions to the magistrate’s report clearly adopted the magistrate’s report as the final judgment of the court. Rather, after stating that Grandmother’s exceptions were denied and that Mother’s exceptions were granted, and after detailing the errors to be “removed” from the report, the only action taken by the trial court on the report was a modification (i.e., “the Report ... is hereby modified ... ”). Thus, neither the January 11, 2013 order nor the February 14, 2013 amended order constitutes an appealable final judgment.

II. Grandmother’s “Motion for Rehearing or Reconsideration” was a Motion for Reconsideration

Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap. Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1390 n. 6 (Fla. 3d DCA 1986) (citations omitted). Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action .... ” Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla.1998) (citations omitted). Nomenclature does not control, and motions for either “rehearing” or “reconsideration” aimed at final judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders shall be treated as motions for reconsideration. See Magnum Towing, Inc. v. Sunbeam Television Corp., 781 So.2d 379, 380 (Fla. 3d DCA 1998) (treating a motion that was “mislabeled” a motion for “reconsideration” as a rule 1.530 motion for “rehearing” because it was aimed at a final order (citing Rebholz v. Floyd, 327 So.2d 806 (Fla. 2d DCA 1976))); Bettez v. City of Miami, 510 So.2d 1242,1243 (Fla. 3d DCA 1987) (treating a motion that was “mislabeled” a motion for “rehearing under [rule] 1.530” as a motion for “reconsideration” because it was aimed at an interlocutory ruling (citing Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924))).

The trial court’s order granting Mother’s exceptions to the magistrate’s report and modifying the magistrate’s report was not a final judgment. Therefore, Grandmother’s “Motion for Rehearing or Reconsideration” of that order is appropriately characterized as a motion for reconsideration of an interlocutory order.

III. Grandmother’s Motion for Reconsideration WPas Timely, and the Trial Court Had Jurisdiction to Sua Sponte Vacate Its February 26, 2013 Order Denying Her Motion

Having determined that Grandmother’s “Motion for Rehearing or Reconsideration” was actually a motion to reconsider an interlocutory order, the provisions of rule 1.530 that control the time in which a motion for rehearing must be filed do not apply. Because “the trial court retains inherent authority to reconsider ... any of its nonfinal rulings prior to entry of the final judgment,” a motion for reconsideration may be filed at any time before the entry of final judgment. See Silvestrone, 721 So.2d at 1175 (citing N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 851 (Fla.1962)). A trial court may sua sponte reconsider and amend or vacate its interlocutory orders prior to final judgment. See id. Therefore, Grandmother’s motion for reconsideration was timely and the trial court did not lack authority or jurisdiction to sua sponte vacate its order denying Grandmother’s motion for reconsideration.

IV. The Order Granting Grandmother’s Motion for Reconsideration Is Also Not an Appealable Nonfinal Order

Lastly, we consider whether the order is an appealable nonfinal order. There are limited nonfinal orders that may be appealed pursuant to Florida Rule of Appellate Procedure 9.130. The only provision under which the order granting reconsideration could conceivably be classified as an appealable nonfinal order is rule 9.130(a)(3)(C)(iii), i.e., an order determining the right to child custody in family law matters. However, the order granting reconsideration is not an appealable nonfinal order because it does not determine the right to child custody, but merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the prior temporary custody order. Therefore, because the order is a nonappealable, nonfinal order, and its entry did not constitute a departure from the essential requirements of law, or cause irreparable harm to justify relief by way of writ of certiorari, we lack jurisdiction to grant the requested relief.

MANDAMUS

Mother also requests this court issue a writ of mandamus, directing the trial court to reinstate its order denying Grandmother’s motion for rehearing or reconsideration and to adjudicate her motion to revoke the temporary custody order. “Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” Poole v. City of Port Orange, 33 So.3d 739, 741 (Fla. 5th DCA 2010) (citing Puckett v. Gentry, 577 So.2d 965, 967 (Fla. 5th DCA 1991)). “To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law.” Id. (citing Radford v. Brock, 914 So.2d 1066,1067 (Fla. 2d DCA 2005)). Because we have concluded that the trial court had the authority to enter its sua sponte order granting Grandmother’s motion for rehearing or reconsideration, thereby allowing it to consider additional evidence at a later hearing on the motion to revoke the temporary custody order, mandamus relief is not presently appropriate.

PETITION FOR WRIT OF CERTIO-RARI DISMISSED; PETITION FOR WRIT OF MANDAMUS DENIED.

LAWSON and BERGER, JJ., concur.

      . The record is not clear why there was a two-year delay between the execution of the consent and the entry of the temporary custody order.

      . The magistrate also noted that Grandmother stipulated that Mother is a fit parent.

      . Though a magistrate’s findings of fact and conclusions of law are not binding upon the trial court, Bergh v. Bergh, 127 So.2d 481, 486 (Fla. 1st DCA 1961), they "come to the trial court clothed with a presumption of correctness, and the trial court may only reject these findings and conclusions if they are clearly erroneous or if the [magistrate] has misconceived the legal effect of the evidence presented,” De Clements v. De Clements, 662 So.2d 1276, 1282 (Fla. 3d DCA 1995) (citations omitted). Therefore, a trial court should review the magistrate’s findings of fact to determine whether, based upon the complete record provided, they are supported by competent, substantial evidence, French v. French, 12 So.3d 278, 279-80 (Fla. 5th DCA 2009), and the trial court should determine "whether there was any ... departure from the essential requirements of law,” Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004).


author: ALTENBERND, Judge. MORRIS, Judge,

text:
    Matthew WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3981.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2014.
    Appeal from the Circuit Court for Polk County; John E. Kirkland, Acting Circuit Judge, and Glenn T. Shelby, Judge.

      Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Matthew Willis appeals his judgments and sentences for twenty counts of possession of child pornography. The images were found on his cell phone during what began as a traffic stop in February 2012. Although at the time of the stop the war-rantless search for these photographs was permissible under the First District’s decision in Smallwood v. State, 61 So.Sd 448 (Fla. 1st DCA 2011) (Smallwood I), that decision was reversed by the supreme court in Smallwood v. State, 113 So.3d 724 (Fla.2013) (Smallwood II). Moreover, the United States Supreme Court reached a decision similar to our supreme court’s decision in Riley v. California, — U.S. -, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In light of the supreme court’s discussion of the good-faith exception in Smallwood II, we conclude that we must reverse the trial court’s decision and require that all of the photographs be suppressed from evidence. Thus, we reverse the judgments and sentences. On remand these twenty counts must be dismissed.

A Haines City police officer stopped a Ford pickup truck on the evening of February 7, 2012, because the truck’s tag light was broken. Mr. Willis, the owner of the vehicle, was driving. He had two passengers with him. During the stop, the officer discovered that Mr. Willis’s license was suspended. He arrested Mr. Willis for driving while license suspended and placed him in his patrol car. Additional officers arrived at the scene and decided to tow the vehicle. After removing the two passengers from the vehicle, the officers conducted an inventory search. They unlocked the glove box and found two pill boxes with small amounts of bagged marijuana and methamphetamine inside. They also found an electronic scale inside the vehicle. The name of one of the passengers was written on one of the pill bottles. The officers then arrested this passenger and Mr. Willis for possession of cannabis and methamphetamine and possession with intent to sell.

Before Mr. Willis and the passenger were transported for booking, Mr. Willis asked the officers to retrieve his cell phone from his truck. The officer who retrieved the cell phone looked through the contents of the phone expecting to find evidence related to drug dealing. In the process, he came upon numerous pictures of child pornography.

The officers then applied for a search warrant to examine the contents of Mr. Willis’s phone. They requested the right to search the telephone call logs and archived telephone numbers, email, text messages, and photographs for evidence of drug crimes and children involved in sexual conduct. The affidavit in support of the application stated that an inventory was conducted, during which time officers found marijuana and methamphetamine. The affidavit explained that the officer who retrieved Mr. Willis’s phone initially looked through it “to determine ownership” and that a second officer then accessed “a folder with approximately 3,193 photos” of children that the officers had already viewed. The magistrate issued the warrant to obtain this evidence.

The affidavit did not mention that Mr. Willis had two passengers in the vehicle with him; that the name of one of the passengers was written on a pill bottle containing the marijuana and methamphetamine; that the officers arrested this passenger, along with Mr. Willis, for possession and possession with intent to sell; or that the officers found a scale inside the truck.

The State filed an information charging forty counts of possession of child pornography and one count of driving while license suspended. The State did not file drug charges against Mr. Willis. Mr. Willis filed a motion to suppress the evidence obtained from the cell phone. When that motion was denied, he agreed to plead nolo contendere to twenty counts of possession of child pornography in exchange for concurrent sentences of six years’ imprisonment followed by six years’ probation as a sexual offender. He also reserved the right to appeal the denial of his dispositive motion to suppress.

In the trial court, the suppression hearing focused significantly on whether the warrantless search exceeded the scope of the search incident to arrest permitted under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Because the police obtained possession of this cell phone at Mr. Willis’s request to retrieve it for him, we agree with the trial court that it was not seized under the Fourth Amendment. However, Mr. Willis also argued that the police could not constitutionally search its content without a warrant.

On appeal, Mr. Willis argues that the evidence acquired from the cell phone during the warrantless search and the additional evidence acquired after the police obtained a warrant must be suppressed. The State primarily argues that the evidence acquired by warrant is admissible.

In light of the holdings in Smallwood II and Riley, we conclude that the evidence obtained prior to the search warrant must be suppressed. In Smallwood II, the Florida Supreme Court held that law enforcement is required to obtain a search warrant before searching the data and content of a cell phone that has been seized incident to a lawful arrest. 113 So.3d at 727, 735. The court further held that the good-faith exception to the exclusionary rule does not apply to cell phone searches incident to arrest performed pri- or to Smallwood I because no “bright-line rule” existed from the United States Supreme Court on which law enforcement could then reasonably rely. Id. at 738-39. After Smallwood II was decided, the United States Supreme Court similarly held in Riley that a warrant is required to search a cell phone seized incident to a lawful arrest. 134 S.Ct. at 2493.

We recognize that at the time it occurred, the warrantless search of the cell phone here was permitted by the First District’s recent decision in Smallwood I, which was a decision then binding on all Florida trial courts. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992). As discussed in Smallwood II, the Supreme Court held in Davis v. United States, — U.S. -, 131 S.Ct. 2419, 2434, 180 L.Ed.2d 285 (2011), that “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” The case law is still developing on the type of precedent that qualifies as “binding appellate precedent” that is sufficient to permit “objectively reasonable reliance.” Compare United States v. Robinson, 903 F.Supp.2d 766 (E.D.Mo.2012) (limiting the applicable precedent to Supreme Court and federal circuit court decisions), with United States v. Lopez, 951 F.Supp.2d 657 (D.Del.2013) (declining to follow Robinson ).

The rule in Pardo was created to establish consistency within Florida law in light of our unique system in which the intermediate appellate courts are intended to be the normal final courts of review. See, e.g., John M. Scheb, Florida’s Courts of Appeal: Intermediate Courts Become Final, 13 Stetson L. Rev. 479, 480 (1984). But an opinion from a single district court is not binding on another district court in Florida. We are not inclined to believe that the rule announced in Pardo should be used in the Fourth Amendment context to determine whether evidence from a warrantless search is admissible.

There was no decision on this issue from either the Florida Supreme Court or the United States Supreme Court at the time of the search, and the issue of cell phone searches was clearly an open and unresolved legal issue in 2012. In light of the discussion in Smallwood II, despite Judge Morris’s reasoned dissent, we are not convinced that our supreme court intends for one recent decision from another Florida district court of appeal on such a controversial issue to create “binding precedent,” at least in other districts, for purposes of the good-faith exception as announced in Davis. See Smallwood II, 113 So.3d at 739. Thus, without faulting the officers involved, we conclude that the State cannot rely upon the good-faith exception to prevent the exclusion of this evidence.

Distinct from the Davis argument, the State briefly suggests that Smallwood II and Riley should have prospective application only. It relies on the First District’s decision in State v. O’Steen, 238 So.2d 434, 437 (Fla. 1st DCA 1970). O’Steen involved a search incident to arrest that occurred prior to the decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel was a case in which the United States Supreme Court confronted at least two of its own prior decisions and attempted to create a more predictable rule. We conclude that the circumstances that warranted a prospective approach to the holding in Chimel simply do not exist in this case.

Concerning the evidence obtained under the warrant, there is an obvious problem with the fruit of the poisonous tree. See Grant v. State, 978 So.2d 862, 868 (Fla. 2d DCA 2008) (citing Wong Sun v. United States, 371 U.S. 471, 488, 88 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The statements in the affidavit for this search warrant relating to the initial search of the cell phone cannot be considered in the determination of whether probable cause existed to obtain the search warrant. State v. Gibson, 670 So.2d 1006, 1009 (Fla. 2d DCA 1996) (citing State v. Ward, 407 So.2d 353 (Fla. 2d DCA 1981)). If the information in the affidavit used to obtain the warrant is edited to eliminate all reference to the knowledge obtained by the unauthorized search of the cell phone, the magistrate would have been informed only that the cell phone belonged to Mr. Willis, whose vehicle contained a limited quantity of drugs, and that the police had not done any prior or subsequent investigation to establish his involvement with the drugs. In that revised situation, we assume that the officers would also have included within the affidavit that the drugs were found inside a locked glove compartment in pill bottles bearing the name of one of Mr. Willis’s passengers. We seriously doubt that such information would be sufficient even to obtain a preliminary warrant to search the record of recent telephone calls or text messages to seek out buyers or sellers of drugs. Such an affidavit clearly would not have provided probable cause to search the personal photographs on Mr. Willis’s cell phone. Accordingly, to the extent that the evidence includes photographs discovered after the issuance of the warrant, those photos must also be suppressed.

In light of the arguments well presented in the dissent, and in recognition that the rule in Davis needs a consistent statewide application under Florida’s unique court structure, we certify the following question as a question of great public importance:

IN LIGHT OF PARDO V. STATE, 596 So.2d 665, 666 (Fla.1992), IS A SINGLE RECENT CASE FROM A DISTRICT COURT OF APPEAL, WHICH IS PENDING ON REVIEW IN THE SUPREME COURT, “BINDING APPELLATE PRECEDENT” UPON WHICH OFFICERS MAY OBJECTIVELY RELY FOR PURPOSES OF THE GOOD FAITH EXCEPTION DISCUSSED IN DAVIS V. UNITED STATES, — U.S.-, 131 S.Ct. 2419, 2434,180 L.Ed.2d 285 (2011)?
Reversed and remanded.

CASANUEVA, J., Concurs.

MORRIS, J., Dissents with opinion.

MORRIS, Judge,

Dissenting.

I respectfully dissent from the majority opinion in this case.

There is no question that the law enforcement officers were in lawful possession of Mr. Willis’s cell phone as he had given consent for them to retrieve it. The question here is whether the subsequent search of the contents of the cell phone falls under the good-faith exception to the exclusionary rule. At the time of the search, the only Florida case addressing cell phone searches which was then binding on all Florida trial courts was the First District’s opinion in Smallwood I, 61 So.3d 448. See Pardo, 596 So.2d at 666 (“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”). Smallwood I held that a search of a cell phone incident to a lawful arrest was not a violation of the Fourth Amendment. 61 So.3d at 459.

Subsequent to the search involved in this case, the Florida Supreme Court quashed the First District’s opinion, holding that law enforcement officers are required to obtain a search warrant before searching the contents of a cell phone that has been seized incident to a lawful arrest. Smallwood II, 118 So.3d 724. And following Smallwood II, the United States Supreme Court issued its opinion in Riley, — U.S.-, 134 S.Ct. 2473, 189 L.Ed.2d 430, wherein it reached the same holding. The majority holds that pursuant to Smallwood II and Riley, the search here resulted in a Fourth Amendment violation and that under Smallwood II, the evidence obtained as a result of that search should be excluded because it is not subject to the good-faith exception to the exclusionary rule.

I conclude, however, that the majority’s reliance on Smallwood II is misplaced. First, the Smallwood cases can be distinguished from this case because at the time Smallwood I was decided, there were no cases from a Florida district court dealing with the issue of cell phone content searches. Thus the Pardo principle did not apply. But here, at the time of the search, Smallwood I existed as the only district court decision on the issue in Florida and, therefore, Pardo is applicable.

Second, I believe that the court in Smallwood II interpreted too narrowly the good-faith exception as analyzed in Davis. The State argued in Smallwood II that the good-faith exception to the warrant requirement should apply pursuant to Davis, but the court rejected that argument because “there [was] currently no United States Supreme Court precedent that addresses or expressly permits a search of the data, information, and content of a cellular phone under the search-ineident-to-arrest warrant exception.” Smallwood II, 113 So.3d at 739. The court distinguished Davis on the basis that it involved a “bright-line rule” involving the search of a vehicle’s passenger compartment, whereas in Smallwood, “no bright-line rule existed] for law enforcement officers to rely upon with regard to searches under these facts.” Id.

Although the court in Smallwood II focused on the lack of a “bright-line rule” or, more specifically, United States Supreme Court precedent, in deciding that the good-faith exception did not apply, Davis established no such requirement for application of the good-faith exception. In fact, in Davis, the relevant precedent being relied upon was an Eleventh Circuit case that had relied on United States Supreme Court precedent. Davis, 131 S.Ct. at 2426. Thus the issue in Davis was not whether there existed United States Supreme Court precedent, or even a “bright-line rule.” Rather, the issue was whether the good-faith exception should apply where law enforcement had reasonably relied on binding precedent.

As noted by the majority, the holding of Davis was that “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” Id. at 2434 (emphasis added). And while the majority is correct that there is a split in the case law as to what constitutes “binding appellate precedent,” I do not believe that the Supreme Court’s utilization of that term prevents the application of the good-faith exception to cases such as this one where, at the time of the search, there was only-one Florida district court opinion addressing the issue. Indeed, by adopting the holding that the good-faith exception cannot apply because there was no decision from the Florida or United States Supreme Courts at the time of the search, the majority nullifies the holding of Pardo in cases involving facts like the present case and ignores the extensive analysis in Davis as to both the purpose and reach of the good-faith exception. It is also important to note that when referring to the type of case law on which law enforcement officers could reasonably rely, the Supreme Court used the terms “binding precedent” and “binding appellate precedent” interchangeably. Davis, 131 S.Ct. at 2423-24,2428-29, 2432, 2434. That fact, in conjunction with the Supreme Court’s analysis of the good-faith exception, leads me to conclude that the good-faith exception should apply in this case.

In Davis, the Supreme Court emphasized that the exclusionary rule is “ ‘not a personal constitutional right’ ” but instead is a “ ‘judicially created’ sanction” designed to “deter future Fourth Amendment violations.” 131 S.Ct. at 2433-34 (quoting Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)); see also Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (“Application of the exclusionary rule ‘is neither intended nor able to cure “the invasion of the defendant’s rights which he has already suffered.” ’ ” (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984))). In explaining why exclusion does not automatically follow a Fourth Amendment violation, the Supreme Court noted the societal costs that result from applying the exclusionary rule:

Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.

Davis, 131 S.Ct. at 2427. Conversely, the Court explained that exclusion is unwarranted where it “fails to yield ‘appreciable deterrence.’ ” Id. at 2426-27 (quoting United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)).

The Supreme Court then analyzed the types of situations in which deterrence would be most effective. Citing its earlier opinion in Leon, the Supreme Court differentiated between police conduct that was “deliberate,” “reckless,” or “grossly negligent,” for which “the deterrent value of exclusion is strong,” and police conduct based on an “objectively reasonable good-faith belief that their conduct is lawful” or conduct involving “only simple, isolated negligence,” for which “the deterrence rationale loses much of its force.” Davis, 131 S.Ct. at 2427-28 (internal quotation marks omitted). Because the law enforcement officers in Davis had “acted in strict compliance with binding precedent” (i.e., an Eleventh Circuit case), the Supreme Court concluded that their behavior “was not culpable in any way.” Id. at 2428 (citation omitted). The Court went on to elaborate that where a particular practice is authorized by binding appellate precedent, “[a]n officer who conducts a search in reliance on [that] precedent does no more than ac[t] as a reasonable officer would and should act under the circumstances” and thus exclusion in such a case would only work to “discourage the officer from do[ing] his duty [which] is not the kind of deterrence the exclusionary rule seeks to foster.” Id. at 2429 (third and fourth alterations in original) (citations omitted). That deterrence rationale has been repeated time and time again in United States Supreme Court decisions. See, e.g., Herring v. United States, 555 U.S. 135, 141-46, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009); Arizona v. Evans, 514 U.S. 1, 10-14, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995); Krull, 480 U.S. at 347-52, 107 S.Ct. 1160; Leon, 468 U.S. at 918-19, 104 S.Ct. 3405; United States v. Calandra, 414 U.S. 338, 347-54, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

This is exactly the type of case for which deterrence has little value. The officers were complying with the only Florida case addressing the issue (Smallwood I), which according to Pardo was binding on all trial courts until it was later reversed in Small-wood II. That is far from the “deliberate,” “reckless,” or “grossly negligent” conduct for which the exclusionary rule has a deterrent effect. See Davis, 131 S.Ct. at 2427-28. Thus, my reading of Davis leads me to conclude that Smallwood I was “binding precedent” on which the officers could reasonably rely and that, therefore, the good-faith exception is applicable to this case.

The majority’s efforts to circumvent Pardo are unpersuasive. The majority notes that an opinion from a single district court is not binding on another district court in Florida. But that is not the issue here. Here, the issue is whether the good-faith exception applies where law enforcement officers in Florida objectively reasonably relied on the single Florida district court case addressing a Fourth Amendment issue.

The majority’s approach essentially carves out an exception to Pardo for cases involving Fourth Amendment issues. But there is nothing in Pardo which precludes its application in Fourth Amendment case law. Further, under the majority’s approach, if a single Florida district court decided in the first instance that a particular action violated the Fourth Amendment, then law enforcement officers in that district would have to either refrain from engaging in such conduct or face the prospect of having evidence suppressed, whereas law enforcement officers in other districts could freely engage in that conduct without fear of having evidence suppressed. That, in my opinion, is an absurd result. I conclude then that because Smallwood I was the only Florida district court case which addressed the issue at the time of the search, the officers were not only entitled to rely on it pursuant to Pardo, they were bound by duty to follow it. See Davis, 131 S.Ct. at 2429 (noting that officers who rely on binding precedent are acting as reasonable officers would and should under the circumstances). It is simply unreasonable to judge the constitutionality of the search on a standard which did not exist. Indeed, “[w]hen the police comply with authoritative precedent, only to see the law evolve after the fact, there is nothing to deter; the police cannot modify their conduct to accord with cases not yet decided.” United States v. Sparks, 711 F.3d 58, 63 (1st Cir.2013) (citing Davis, 131 S.Ct. at 2428-28).

The majority summarily rejects the State’s argument that Smallwood II and Riley should have prospective application only by concluding that “the circumstances that warranted a prospective approach to the holding in Chimel [v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ], simply do not exist in this case.” I do not take issue with the conclusion that the new rule of law announced in Small-wood II and Riley should apply retroactively. But, as explained in Davis, the retroactive application of that rule of law is not dispositive of whether the good-faith exception applies.

There, the Supreme Court acknowledged that it previously held in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), that “newly announced rules of constitutional criminal procedure must apply ‘retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.’ ” Davis, 131 S.Ct. at 2430 (quoting Griffith, 479 U.S. at 328, 107 S.Ct. 708). However, the Court explained that the application of the good-faith exception and the issue of retroactive application were two distinct doctrines: “retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question.” Id. at 2431. The Court held that its decision in Gant, 556 U.S. 332,129 S.Ct. 1710, 173 L.Ed.2d 485, would apply to Davis’s case because his conviction was not final on direct review at the time Gant was decided. Davis, 131 S.Ct. at 2431. However, while Davis was entitled to invoke the new rule of law as announced in Gant as a basis for seeking relief, the Supreme Court made it clear that the issue of whether he was entitled to a remedy was a separate issue and that a remedy only applied where its purpose could be “ ‘effectively advanced.’ ” Id. (quoting Krull, 480 U.S. at 347, 107 S.Ct. 1160). The Supreme Court ultimately concluded that the good-faith exception was “an established limit on the remedy of exclusion” and that “[i]ts application ... neither contravene[d] Griffith nor deniefd] retroactive effect to Gant.” Id.

Similarly here, while Willis was entitled to challenge the validity of the search based upon Smallwood II and Riley, that fact does not answer the question of whether he is entitled to a remedy. And for the reasons I have already explained, I would conclude that he is not because the good-faith exception to the exclusionary rule applies to this case.

For these reasons, I would affirm.

      . A Texas court applying Davis has declined to use the exclusionary rule as a remedy for an improper search of a cell phone in which law enforcement found photographs that were relevant to prove a drug charge. United States v. Spears, No. 4:14-cr-82-0, - F.Supp.3d-, -, 2014 WL 3407930, at *3-4 (N.D.Tex. July 14, 2014). In that case, the search had been authorized under existing precedent from the Fifth Circuit allowing the warrantless search of an arrestee’s cell phone incident to a lawful arrest. Id. at-, at *3 (citing United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.2007)). The State has not asked this court to rely on this out-of-state precedent. As explained in the opinion, we conclude that a Florida district court case from another district is not the same kind of binding precedent as a Fifth Circuit case in Texas.

      . It should be noted that Smallwood I was pending on review in the Florida Supreme Court when this cell phone was searched. See Smallwood v. State, 68 So.3d 235 (Fla.2011) (table decision). There is nothing in the record to establish that the officers in this case actually knew about the holding in the First District and that they were relying on that holding. The exclusionary rule does serve, at least in substantial part, as a deterrent. However, when a Fourth Amendment issue is rapidly evolving, it is hard to justify an approach to the good-faith exception that allows the first defendant to reach the United States Supreme Court to receive the benefit of the exclusionary rule while other defendants in the legal pipeline do not. The equal application of the rule of law would seem to be a principle of our legal system calling for a cautious use of the good-faith exception in situations like the one we face today.

      . O'Steen was decided before United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), and Riley. The analysis it used has probably been replaced by the analysis in these more recent cases.

      . The majority’s reliance on Riley is based on the substantive Fourth Amendment issue. The issue of whether officers are entitled to rely on case law, which is later overruled, as a basis for the good-faith exception to apply was not raised in Riley.

      . Of course, Smallwood II did not involve the factual scenario presented here, i.e„ the search was conducted at a time when there was a single Florida district court case addressing the issue. Thus the Florida Supreme Court was not presented with the question of whether, under such circumstances, that single opinion would be the equivalent of a "bright-line rule.”

      . The Florida Supreme Court has likewise noted that deterrence is the primary purpose behind the exclusionary rule. See State v. Teamer, — So.3d-, 2014 WL 2979378, 39 Fla. L. Weekly S478, S481 (Fla. July 3, 2014).
      The court also acknowledged Davis ’s holding that the good-faith exception applies "where police acted in objectively reasonable reliance on binding judicial precedent." Id.