author: PER CURIAM. QUINCE, J.,

text:
    Jesse GUARDADO, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-389
    Supreme Court of Florida.
    [May 11, 2017]

      Billy H. Ñolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, and Berdene Beckles, Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

This case is before the Court on the petition of Jesse Guardado for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

The underlying facts of this ease were described in this Court’s opinion on direct appeal. Guardado v. State, 965 So.2d 108, 110-12 (Fla. 2007). Guardado pleaded guilty to murder in the first degree and robbery with a weapon. After hearing evidence at the penalty phase, the jury returned a unanimous recommendation that Guardado be sentenced to death. The trial court found five aggravating factors and nineteen nonstatutory mitigating circumstances. We affirmed Guardado’s convictions and sentence of death. We also affirmed the denial of Guardado’s initial postconviction motion. Guardado v. State, 176 So.3d 886 (Fla. 2015).

In his present habeas petition, Guardado argues that he is entitled to relief pursuant to Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202 So.3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017). We agree with Guardado that Hurst is applicable in his ease. See Mosely v. State, 209 So.3d 1248 (Fla. 2016). However, because we find that the Hurst error in this case is harmless beyond a reasonable doubt, we deny Guardado’s petition. As we stated in Davis v. State, 207 So.3d 142, 175 (Fla. 2016):

[T]he jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations.... The unanimous recommendations here are precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death.

Accordingly, the Hurst violation in this case is harmless beyond a reasonable doubt and, as in Davis, does not entitle Guardado to relief.

It is so ordered.

LABARGA, G.J., and PARIENTE, and LEWIS, JJ., concur.

CANADY, POLSTON, and LAWSON, JJ., concur in result.

QUINCE, J., dissents with an opinion.

QUINCE, J.,

dissenting.

I cannot agree with the majority’s finding that the Hurst error was harmless beyond a reasonable doubt. As I’ve stated previously, “[bjecause Hurst ‘requires a jury, not a judge, to find each fact necessary to impose a sentence of death,’ the error cannot be harmless where such a factual determination was not made.” Hall v. State, 212 So.3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (quoting Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016)); see also Truehill v. State, 211 So.3d 930, 961 (Fla. 2017) (Quince, J., concurring in part and dissenting in part).

      . The trial court found the following five aggravating factors: (1) the capital felony was committed by a person under sentence of imprisonment or on conditional release supervision; (2) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (to wit: armed robbery, April 9, 1984; robbery with a deadly weapon, July 6, 1990; robbery, January 23, 1991; robbery with a weapon, January 23, 1991; attempted robbery with a deadly weapon, February 17, 2005); (3) the capital felony was committed while the defendant was engaged in the commission of, or attempt to commit, or escape after committing, a robbery with a weapon; (4) the capital felony was especially heinous, atrocious, or cruel (HAC); and (5) the crime was committed in a cold, calculated and premeditated manner (CCP). Guardado, 965 So.2d at 112.

      . The trial court found the following nineteen mitigating circumstances: (1) defendant entered a plea of guilty to first-degree murder without asking for any plea bargain or other favor in exchange (great weight); (2) defendant has fully accepted responsibility for his actions and blames nobody else for this crime (great weight); (3) defendant is not a psychopath pursuant to expert testimony and would not be a danger to other inmates or correctional officers should he be given a life sentence (moderate weight); (4) defendant could contribute to an open prison population and work as a plumber or an expert in wastewater treatment plant operations should he be given a life sentence (little weight); (5) defendant fully cooperated with law enforcement to quickly resolve the case to the point of helping law enforcement officers recover evidence to be used against him at trial (great weight); (6) defendant has a good jail record while awaiting trial with not a single incident or discipline report (little weight); (7) defendant has consistently shown a great deal of remorse for his actions (great weight); (8) defendant has suffered most of his adult life with an addiction problem to crack cocaine which was the basis of his criminal actions (some weight); (9) defendant has a good family and a good family support system that could help him contribute to an open prison population (moderate weight); (10) defendant testified he would try to counsel other inmates to take different paths than he has taken should he be given a life sentence (moderate weight); (11) as a child, defendant suffered a major trauma in his life by the crib death of a sibling (moderate weight); (12) as a child, defendant suffered another major trauma in his life by being sexually molested by a neighbor (moderate weight); (13) defendant has a lengthy history of substance abuse (marijuana and Quaaludes) during early teen years, graduating to alcohol and cocaine and substance abuse treatment beginning about age 14 or 15 (little weight); (14) defendant's biological father passed away before defendant developed any lasting memories of him (little weight); (15) defendant was raised by his mother, whom he always considered loving, thoughtful, and concerned, and by a stepfather he later came to respect (little weight); (16) defendant was under emotional duress during the time frame of this crime (little weight); (17) defendant does not suffer a mental illness or major emotional disorder (little weight); (18) defendant offered to release his personal property, including his truck, to his girlfriend (little weight); and (19) defendant previously contributed to state prison facilities as a plumber and in wastewater treatment work (little weight). Guardado, 965 So.2d at 112 n.2.


source: Caselaw Access Project

author:
PER CURIAM.
      LEWIS, J., PARIENTE, J.,

license: Public Domain

text:
    James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.
    No. SC17-445
    Supreme Court of Florida.
    [August 10, 2017]
    James Vihcent Viggiano, Jr., Capital Collateral Regional Counsel, and David Dixon Hendry, James L. Driscoll, Jr., and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Tayo Popoola, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

James Ernest Hitchcock is a prisoner under sentence of death whose sentence became final' in 2000. See Hitchcock v. State, 755 So.2d 638 (Fla.), cert. denied, 531 U.S. 1040, 121 S.Ct. 633, 148 L.E.d.2d 541 (2000). Following the United States Supreme Court’s debisión in- Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court’s decision on remand in Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), Hitchcock filed a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851, arguing that these decisions render his death sentence unconstitutional under both the United States and Florida Constitutions. The circuit court summarily denied Hitchcock’s motion, concluding that this Court’s decision in Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017), precludes relief. Hitchcock appeals the circuit court’s order, and we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm because we agree with the circuit court that our decision in Asay forecloses relief.

We have consistently applied our decision in Asay, denying the retroactive application of Hurst v. Florida as interpreted in Hurst v. State to defendants whose death sentences were final when the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See, e.g., Zack v. State, 226 So.3d 211, 2017 WL 2590703 (Fla. June 15, 2017); Marshall v. Jones, — So.3d -, 42 Fla. L. Weekly S533, 2017 WL 1739246 (Fla. May 4, 2017); Lambrix v. State, 217 So.3d 977 (Fla. 2017); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017); Bogle v. State, 213 So.3d 833 (Fla. 2017); Gaskin v. State, 218 So.3d 399 (Fla. 2017). Hitchcock is among those defendants whose death sentences were final before Ring, and his arguments do not compel departing from our precedent.

Although Hitchcock references various constitutional provisions as a basis for arguments that Hurst v. State should entitle him to a new sentencing proceeding, these are nothing more than arguments that Hurst v. State should be applied retroactively to. his sentence, which became .final prior to Ring. As such, these arguments were rejected when we decided Asay. Accordingly, we affirm the circuit court’s order summarily denying Hitchcock’s successive . postconviction motion pursuant to Asay.

It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

LEWIS, J., concurs in result with an opinion.

CANADY, J., concurs in result.

PARIENTE, J., dissents with an opinion;

LEWIS, J.,

concurring in result.

In my view, as it did in Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017), the majority opinion incorrectly limits the retroactive application of Hurst by barring relief to even those defendants who, prior to Ring, had properly asserted, presented, and preserved challenges to the lack of jury factfinding and unanimity in Florida’s capital sentencing procedure at the trial level and on direct appeal, the underlying gravamen of this entire issue. Although the United States Supreme Court’s decision in Apprendi became final while Hitchcock’s case was on direct appeal before this Court, Hitchcock did not raise a Sixth Amendment challenge to his death sentence for the first time until after our decision, in the form of a postconviction claim, after his death sentence became final. See Hitchcock v. State, 991 So.2d 337, 344 n.6 (Fla. 2008). Therefore, I agree that he is not entitled to relief, and I concur in the result. However, I write separately to explain my disagreement with the Hurst retroactivity issue as adopted by this Court.

Many courts struggle with the “staggeringly intricate body of law governing the question whether new constitutional doctrines should be ‘retroactively’ or ‘prospectively’ applied.” Witt v. State, 387 So.2d 922, 925 (Fla. 1980) (quoting Paul M. Bator et al., Hart & Wechsler’s The Federal Court & the Federal System 1477 (2d ed. 1973)). This Court need not tumble down the dizzying rabbit hole of untenable line drawing; instead, the Court could simply entertain Hurst claims for those defendants who properly presented and preserved the substance of the issue, even before Ring arrived. This is consistent with the precedent of this Court. In James v. State, 615 So.2d 668, 669 (Fla. 1993), we granted relief to a defendant who had asserted at trial and on direct appeal that the jury instruction pertaining to the heinous, atrocious, or cruel aggravating circumstance was unconstitutionally vague before the United States Supreme Court ultimately reached that same conclusion in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). We concluded that—despite his case becoming final before the principle of law had a case name—it would be unjust to deprive James of the benefit of the Supreme Court’s holding in Espinosa after he had properly presented and preserved such a claim. James, 615 So.2d at 669. Similarly, I believe that defendants who properly preserved the substance of a Ring challenge at trial and on direct appeal prior to that decision should also be entitled to have their constitutional challenges heard.

Preservation of the issue is perhaps the most basic tenet of appellate review, see Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982); and this Court should be particularly cognizant of preservation issues for capital defendants. Accordingly, the fact that some defendants specifically cited the name Ring while others did not is not dispositive. Rather, the proper inquiry centers on whether a defendant preserved his or her substantive constitutional claim to which and for which Hurst applies. This preservation approach—enshrined in James—ameliorates some of the majority’s concern with the effect on the administration of justice. Defendants, like Hitchcock, who did not properly preserve their constitutional challenges—through trial and direct appeal—forfeited them just as any other defendant who fails to raise and preserve a claim. However, those defendants who challenged Florida’s unconstitutional sentencing scheme based on the substantive matters addressed in Hurst are entitled to consideration of that constitutional challenge.

Jurists have echoed this type of approach as a remedy to the more exacting federal Teague standard. Federal courts have employed a similar preservation approach, and it is. “one of the dominant means by which federal courts limit the disruptive effects of legal change in the context of direct review of federal criminal convictions.” Regardless of the limited federal approach, scholars urge state courts to pull retroactivity off Teague’s constitutional floor, which the Supreme Court expressly permitted in Danforth v. Minnesota, 552 U.S. 264, 280, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).

This Court’s adoption of the Stovall /Linkletter standard was intended to provide “more expansive retroactivity standards” than those of Teague. Johnson v. State, 904 So.2d 400, 409 (Fla. 2005). However, the Court’s retroactivity decision today eschews that intention. Further, it illuminates Justice Harlan’s famous critique of Linkletter:

Simply fishing one case from the stream of appellate review ... and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute^] an indefensible departure from this model of judicial review.

Williams v. United States, 401 U.S. 667, 679, 91 S.Ct 1171, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part). However, that is how the majority opinion draws its determinative, albeit arbitrary, line. As a result, Florida will treat similarly situated defendants differently—here, the difference between life and death—for potentially the simple reason of one defendant’s docket delay. Vindication of these constitutional rights cannot be reduced to either fatal or fortuitous accidents of timing.

Every pre-Ring defendant has been found by a jury to have wrongfully murdered his or her victim. There may be defendants that properly preserved challenges to their unconstitutional sentences through trial and direct appeal, but this Court now limits the application of Hurst, which may result in the State wrongfully executing those defendants. It seems axiomatic that “two wrongs don’t make a right”; yet, this Court essentially condones that outcome with its very limited interpretation of Hurst’s retroactivity and application.

PARIENTE, J.,

dissenting.

Reliability is the linchpin of Eighth Amendment- jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable. The statute under which' Hitchcock was sentenced, which did not require unanimity in the jury’s recommendation for death, was unconstitutional under the Sixth and Eighth Amendments. To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process. The Eighth Amendment and due process arguments presented here and not addressed by the majority in Asay, in addition to the Sixth Amendment right announced in Hurst v. Florida and Hurst, “create! ] the rare situation in which, finality yields to fundamental fairness in order to. ensure that the constitutional rights of all capital defendants in Florida are upheld.” Asay v. State, 210 So.3d 1, 35 (Fla. 2016) (Pariente, J,, concurring in part, dissenting in part) (citing Witt v. State, 387 So.2d 922, 925 (Fla. 1980)), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017). Rather than analyze Hitchcock’s constitutional arguments, the majority dismisses them without explaining why Asay, in fact, forecloses relief.

Hitchcock argues that he is entitled to retroactive application of the right to a unanimous jury recommendation for death announced in Hurst under the Eighth Amendment to the United States Constitution. See Hurst v. State (Hurst), 202 So.3d 40, 44 (Fla. 2016), cert. denied. — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Hitchcock also contends that denying retroactive application of Hurst to him and other similarly situated defendants violates their constitutional right to due process. Contrary to the majority’s assertion, these issues were -not specifically addressed in this Court’s opinion in Asay. In Asay, this Court, made multiple references to the “right to jury trial” -as an “indispensable component of our justice system” and. focused primarily on the rule announced in Ring, a Sixth Amendment case, Asay, 210 So.3d at 17 (citing Blair v. State, 698 So.2d 1210, 1213 (Fla. 1997)). This Court did not in Asay, however, discuss the new right-announced by'this Court in Hurst to a unanimous recommendation for death under the' Eighth Amendment. Indeed, although the right to a unanimous jury recommendation for death may exist under both the Sixth and Eighth Amendments to the United States Constitution, the retroactivity analysis, which is based on the purpose of the new rule and reliance on the old rule, is undoubtedly different in each context. Therefore, Asay does not foreclose relief in this case, as the majority opinion assumes without explanation. See majority op. at 217.

As I, did in Asay and Mosley v. State, 209 So.3d 1248 (Fla. 2016), I continue to agree that Witt provides the appropriate standard for determining the retroactivity of Hurst. However,. as I explained in my concurring in part and dissenting in part opinion in Asay, any line drawing in the retroactive application of Hurst to capital defendants “results in an unintended arbitrariness as to who receives relief,” Asay, 210 So.3d at 36 (Pariente, J., concurring in part and dissenting in part).

For the same reasons I conclude that the right announced in Hurst under the right to jury trial (Sixth Amendment and article I, section 22, of the Florida Constitution) requires full retroactivity, I would conclude that the right to a unanimous jury recommendation of death announced in Hurst under the Eighth Amendment requires full retroactivity. As I stated in Asay, “To avoid ... arbitrariness and to ensure uniformity and fundamental fairness in Florida’s capital sentencing, our opinion in Hurst should be applied retroactively to ah death sentences. Id. (Pariente, J., concurring in part, dissenting in part) (emphasis added). In addition to the arbitrariness of the imposition of the death penalty as described by Justice Breyer, joined by Justice Ginsburg, this Court imposes another layer of arbitrariness in determining which defendants will receive relief, based on the critical right to a jury trial and a unanimous jury recommendation. Justice Perry provided an example in his dissenting opinion in Asay:

For example, Asay committed two murders on the night of July 17, 1987. His sentence became final on October 7, 1991, when the United States Supreme Court denied certiorari. See Asay v. Florida, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991). Asay’s nine-to-three jury recommendation that resulted in a death sentence would not be constitu: tional if Hurst v. Florida applied to him, but the majority, holds that he is not entitled to the Sixth Amendment protections articulated in Hurst v. Florida. Yet, under the present majority’s decision, another defendant who committed his offense on an earlier date but had his sentence vacated and was later resen-tenced after Ring, cannot, receive the death penalty without the protections articulated in Hurst. Timothy Hurst committed his crimes on May 2, 1990, and was originally sentenced on April 26, 2000, which was final October 21, 2002, a few short months after the decision in Ring. The majority’s application of Hurst v. Florida makes constitutional protection depend on little more than a roll of the dice.

210 So.3d at 39-40 (Perry, J., dissenting) (footnotes omitted).

As to Justice Lewis’s approach to Hurst retroactivity under James v. State, 615 So.2d 668 (Fla. 1993), I agree that this approach is preferable to denying relief altogether. Since Hurst, I, have noted defendants who raised Sixth Amendment challenges against Florida’s capital sentencing scheme even before the United States Supreme Court issued its decision in Ring. See, e.g., Gaskin v. State, 218 So.3d 399, 402 (Fla. 2017) (Pariente, J., concurring in part and dissenting in part). Ultimately, as I stated in Asay, because “death is different,” “we must be extraordinarily vigilant in ensuring that the death penalty is not arbitrarily imposed.” Asay, 210 So.3d at 32 (Pariente, J., concurring in part and dissenting in part).

Hitchcock, who was twenty years old at the time of his crime, has had four different sentencing proceedings. His sentence of death has been litigated- since 1977. See Hitchcock v. State, 413 So.2d 741, 743 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). Two':times, the United States Supreme Court granted penalty phase relief, remanding the case each time for further review. See Hitchcock v. Florida, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). After a third penalty phase, in which the jury unanimously rec ommended a sentence of death, this Court again reversed the sentence of death and remanded for a new penalty phase. Hitchcock v. State, 673 So.2d 859, 860 (Fla. 1996). After Hitchcock’s fourth penalty phase, which began twenty years after the crime, the jury recommended a sentence of death by a vote of 10-2, and the trial court again sentenced Hitchcock to death. Hitchcock v. State, 755 So.2d 638, 640 (Fla.), cert. denied, 531 U.S. 1040, 121 S.Ct. 633, 148 L.Ed.2d 541 (2000). That sentence is at issue in this case.

At each proceeding, Hitchcock presented mitigating evidence, including that Hitchcock suffered “from extreme mental and emotional disturbance, that he was under extreme duress or the domination of another person, ... that his capacity to appreciate the criminality of his conduct was substantially impaired,” and that he was under the influence of alcohol and drugs at the time of the crime. Hitchcock, 413 So.2d at 747.

As early as 1982, Justice McDonald, joined by Justice Overton, concluded that Hitchcock’s death sentence was disproportionate and argued that Hitchcock’s death sentence should have been reduced to life. Id. at 748-49 (McDonald, J., concurring in part and dissenting in part). Likewise, after Hitchcock’s second penalty phase, Justice Kogan, joined by Justice Barkett, concluded “that the death penalty is disproportionate” in Hitchcock’s case. Hitchcock v. State, 578 So.2d 685, 694 (Fla. 1990) (Kogan, J., dissenting).

Hitchcock raised a timely Ring claim in his postconviction motion and in a separate petition for a writ of habeas corpus. Hitchcock v. State, 991 So.2d 337, 344 n.6 (Fla. 2008); id. at 345 n.7. The postconviction court denied relief; this Court affirmed the postconviction court’s denial of relief and denied Hitchcock’s petition for a writ of habeas corpus. Id. at 362-63.

Hitchcock also raised a “corresponding ineffective assistance of counsel claim,” which this Court denied. This Court stated that because “neither Ring nor Apprendi had been decided when the appeal of Hitchcock’s latest resentencing was pending before this Court,” Hitchcock’s arguments were without merit, and “[cjounsel cannot be expected to anticipate changes in the law.” Id. at 363 (citing Walton v. State, 847 So.2d 438, 445 (Fla. 2003)). Thus, while approaching retroactivity based solely on preservation, as Justice Lewis would contend is appropriate, is preferable to the majority’s resolution of the issue—denying relief to all defendant’s whose sentences became final before Ring—this resolution still results in the additional arbitrariness of defendants being granted a new penalty phase only if their lawyers had the foresight to raise an issue that was repeatedly determined to be meritless before Ring. For all these reasons, I would apply Hurst retroactively to Hitchcock’s sentence of death.

In Hurst, this Court stated:

If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process.

202 So.3d at 60. Based on the numerous resentencing procedures in Hitchcock’s case, Hitchcock’s sentence of death is anything but reliable. Also, the jury’s most recent vote to recommend that Hitchcock be sentenced to death was 10-2. Hitchcock, 755 So.2d at 640. The Hurst- error in Hitchcock’s case is clear. Additionally, because of the significant mitigating evidence Hitchcock has presented at each penalty phase, and because it is unclear why two jurors determined that death was not the appropriate punishment in this case, I would conclude that the Hurst error in Hitchcock’s case is not harmless beyond a reasonable doubt. Therefore, I would vacate the sentence of death, and remand for a new penalty phase.

Accordingly, I dissent.

      . Hitchcock relied on Hurst v. Florida and Hurst v. State to argue below that his death sentence is unconstitutional under .the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the corresponding provisions of the Florida Constitution, and article I, sections 15 and 16, of the Florida Constitution.

      . In this appeal, Hitchcock relies on Hurst v. Florida and Hurst v. State for the following arguments: (1) the Hurst error in his case was not harmless because his jury did not unanimously recommend death; (2) denying Hitchcock Hurst relief based on non-retroac-tivity violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution; (3) Hitchcock was denied his right to a jury trial on the facts that led to his death sentence; (4) Hitchcock’s death sentence violates the Eighth Amendment because it was contrary to evolving standards of decency and is arbitrary and capricious; (5) the fact-finding that subjected Hitchcock to death was not proven beyond a reasonable doubt; (6) Hitchcock's death sentence violates article I, sections 15(a) and 16(a), of the Florida Constitution because the State did not present the aggravating factors in his indictment, and the aggravating factors were not found by his grand jury, thereby denying him notice of the full nature and cause of the accusation against him; and (7) the denial of Hitchcock's prior ppstconviction claims must be reheard and determined under a constitutional framework.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . See L. Anita Richardson & Leonard B. Man-dell, Fairness Over Fortuity: Retroactivity Revisited and Revised, 1989 Utah L. Rev. 11, 56-57 (1989).

      . Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

      . Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 Am. J. Crim. L. 203, 232 (1998).

      . Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L.J. 922, 942 (2006).

      . Christopher N. Lasch, The Future of Teague Retroactivity, or "Redressability,'' After Dan-forth v, Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings, 46 Am. Crim. L. Rev, 1, 51-54 (2009).

      . Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

      . See generally, Christopher M. Smith, Schriro v. Summerlin: A Fatal Accident of Timing, 54 DePaul L. Rev. 1325 (2005).

      . See Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 2760-64, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting) (Justice Breyer, joined by Justice Ginsburg, explained that because of the inherent arbitrariness in the imposition of the death penalty it is unconstitutional under the Eighth Amendment.),

      , See concurring in result op. at 218 (Lewis, J.); Asay, 210 So.3d at 30-31 (Lewis, J., concurring in result).

      . The jury's vote to recommend a sentence of death in Hitchcock’s first trial is unclear.

      . Chief Justice Shaw also dissented in the affirmance of the death sentence for unstated reasons. Hitchcock, 578 So.2d at 694 (Shaw, C.J., dissenting).


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA RULES OF JUDICIAL ADMINISTRATION-2017 REGULAR-CYCLE REPORT.
    No. SC17-155
    Supreme Court of Florida.
    [September 7, 2017]
    Judson Lee Cohen, Chair, Rules of Judicial Administration Committee, Miami Lakes, Florida, Judge Steven Scott Stephens, Past Chair, Rules of Judicial Administration Committee, Tampa, Florida; and John F. Harkness, Jr., Executive Director, and Krys Godwin, Attorney Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
    Robert Joseph Merlin, Chair, Family Law Rules Committee, Coral Gables, Florida, Judge Laurel Moore Lee, Past Chair, and Caroline Black Sikorske, Member, Family Law Rules Committee, Tampa, Florida; Jonathan Adam Galler, Chair, Florida Probate Rules Committee, Boca Raton, Florida, and Michael Travis Hayes and Jon Scuderi, Past Co-Chairs, Florida Probate Rules Committee, Naples, Florida; Kara Ann Fenlon, Chair, Juvenile Court Rules Committee, Tallahassee, Florida, and Ward L. Metzger, Past Chair, Juvenile Court Rules Committee, Jacksonville, Florida; - Marty McDonnell, Chair, Criminal Law Section of the Florida Bar, Tallahassee, Florida, and Joel M. Silver-shein, Past Chair, Criminal Law Section of The Florida Bar, Fort Lauderdale, Florida; Landis Vernon Curry III, Chair, and Kristin A. Norse, Past Chair, Appellate Court Rules Committee, Tampa, Florida, and Thomas D. Hall, Vice Chair, Appellate Court Rules Committee, Tallahassee, Florida; Michael Thiel Debski, Chair, Small Claims Rules Committee, Jacksonville, Florida, and Alison Verges Walters, Past Chair, Small Claims Rules Committee, Tampa, Florida; Jon Berkley Morgan, Chair, Criminal Procedure Rules Committee, Kissimmee, Florida, and H. Scott Fingerhut, Past Chair, Criminal Procedure Rules Committee, Coral Gables, Florida; and Mikalla Andies Davis and Heather Savage Telfer, Attorney Liaisons, The Florida Bar, Tallahassee, Florida, Responding with Comments
   PER CURIAM.

We have for consideration The Florida Bar’s Rules of Judicial Administration Committee’s (RJA Committee) regular-cycle report of proposed rule amendments. See Fla. R. Jud. Admin. 2.140(b)(4). We have jurisdiction and adopt many of the unopposed amendments as proposed. We modify several of the proposals and adopt, on our own motion, additional amendments to further clarify and delineate the current procedures for amending court rules. However, we decline to adopt the opposed amendments that would expand the RJA Committee’s responsibilities as the “rules coordinating committee.”

BACKGROUND

The RJA Committee proposes amendments to Florida Rules of Judicial Administration 2.140 (Amending Rules of Court); 2.510 (Foreign Attorneys); and 2,516 (Service of Pleadings and Documents). The RJA Committee published the proposals for comment before filing them with the Court. The RJA Committee received comments from the Appellate Court Rules Committee (ACR Committee), the Family Law Rules Committee (FLR Committee), and the Small Claims Rules Committee (SCR Committee) objecting to the amendments to rule 2.140(a)(6) that (1) would recognize the RJA Committee as the central rules coordinating committee and reviewer of rules proposals to determine if a proposal is of general or common application and to make recommendations to resolve conflicts, inconsistencies, and redundancy between a proposal and existing or other proposed rules, and (2) would allow the RJA Committee to issue a formal response to the proposals to be included in the rule submissions to the Board of Governors of The Florida Bar and to this Court. After considering the comments, the RJA Committee did not make any revisions to its proposals. The Board of Governors approved all the proposed rule amendments.

After the RJA Committee filed its report, the Court published the proposed amendments for comment. The ACR Committee, the Criminal Procedure Rules Committee (CPR Committee), the SCR Committee, and The Florida Bar’s Criminal Law Section filed comments opposing the proposed amendments to rule 2.140(a)(6). The FLR Committee, the Juvenile Court Rules Committee (JCR Committee), and the Probate Rules Committee (PR Committee) filed a joint comment also opposing those amendments. The comments filed with this Court raise the same objections to the proposed amendments as were raised in the comments submitted to the RJA Committee. The RJA Committee responded to the comments submitted to it in its report and filed a response to the comments filed with the Court.

AMENDMENTS

After considering the RJA Committee’s proposals, the comments submitted to the RJA Committee and filed with the Court, and the RJA Committee’s responses to the comments, we decline to adopt the opposed amendments to rule 2.140(a)(6). However, we adopt the amendments to rules 2.510 (Foreign Attorneys), and 2.516 (Service of Pleadings and Documents), and many of the noncontroversial amendments to rule 2.140 (Amending Rules of Court). We modify several of the proposed amendments to rule 2.140 and, on our own motion, make additional changes to rule 2.140 in order to more fully delineate the current procedures for amending court rules.

We commend the RJA Committee for its willingness, as our “rules coordinating committee,” to take on more responsibilities to ensure the quality of the rules of court. We also greatly appreciate that committee’s efforts to improve communication among the Bar’s rules committees and to suggest procedures designed to improve the rule coordination process. However, after considering the proposed amendments to rule 2.140(a)(6) and the comments opposing those amendments and hearing oral argument, we decline to adopt amendments that would require the RJA Committee to have a more involved role in coordinating rule proposals. We agree with. the commenters that expanding the RJA Committee’s rule coordination responsibilities as proposed could result in undue delay in the rule-making process and unnecessarily overburden the RJA Committee.

Currently under rule 2.140(a)(6), each rules committee provides the RJA Committee with a copy of all proposed rules changes, and the RJA Committee refers proposed rules changes to any rules committees it determines may be affected by the change. Since this Court recognized the RJA Committee as the rules coordinating committee, that committee has been responsible for identifying rules proposals that might affect other existing or proposed rules and referring those proposals to the appropriate rules committees. See Fla. Bar re Rules of Judicial Admin., 458 So.2d 1110, 1110-11 (Fla. 1984) (adopting rule 2.130(b)(5) effective January 1, 1985 (renumbered 2.140(a)(6)); Fla. R. Jud. Admin, 2.140(a)(6). The Court has explained that this rule coordination function was created “to identify how proposed changes in one set of rules inter-relate with existing and proposed rules in other areas” and to provide “a means for determining the potential impact of rules changes on rules in other areas.” Fla. Bar re Rules of Judicial Admin., 458 So.2d at 1110-11. Currently, the affected committees, whose members have expertise in their respective practice areas, are responsible for reviewing the referred rule change and working with the proposing committee to determine what action, if any, should be taken to avoid conflicts and other potential issues with the proposal. While this coordination scheme may not be perfect, it allocates rule coordination responsibilities to ■ the committee best suited to each task. The RJA Committee, with its diverse membership and liaison subcommittee, is best suited to review all proposed rules changes to identify changes that might impact other rules or pending proposals; and the several substantive rules committees are best equipped to work together to resolve identified issues with rules proposals.

According to the RJA Committee’s report and response to the comments, that committee’s liaison subcommittee currently reviews all rules proposals to determine how they relate to other rules and whether a proposal should be referred to any potentially affected rules committees for consideration. The liaison subcommittee consists of members from each of the other rules committees who are appointed to serve as liaisons between their respective committees and the RJA' Committee. As amended, subdivision (a)(4) of rule 2.140 will specifically require the liaison committee members appointed to the RJA Committee by the chairs of their respective rules committee to “facilitate and implement routine periodic reporting by and to the Rules of Judicial Administration Committee on the development and progress of rule proposals under consideration .and their potential impact on other existing or proposed rules.” This ongoing, active communication between the RJA Committee and the other rules committees about the status of rules proposals will enhance the RJA Committee’s rule coordination efforts. While we decline- to adopt the proposed amendments that would expand the RJA Committee’s rule coordination responsibilities, there is nothing to preclude the RJA Committee from including in its referral to an affected rules committee or providing in a comment submitted to a proposing committee, under rule 2.140(b)(2) or new rule 2.140(e)(2), any information, insights, or suggestions the RJA Committee believes might be helpful to those committees in considering a proposed rule change. In this way, the RJA Committee can take a more active role in resolving potential issues with rule proposals that will not result in undue delay or otherwise detrimentally affect the rule-making process..

The proposed amendments to rule 2.140 we do adopt are intended to clarify, improve, and streamline the rule-making process. We adopt the amendments to subdivision (a)(2) of rule 2.140, as proposed, to clarify that proposals to amend court rules may be submitted to the Clerk of this Court for referral to the appropriate rules committee, as currently provided, or may be submitted directly to the appropriate rules committee chair or Bar staff liaison to the rules committee. We amend subdivision (a)(4) of rule 2.140, as proposed, to require that members of the RJA Committee have “previous rules committee experience or substantial experience in the administration of the Florida court system.” The requirement that the chairs of each rules Committee appoint one of the committee’s members to “serve as a regular member of the Rules of Judicial Administration Committee” is moved from current subdivision (a)(6) to subdivision (a)(4). And, as noted above, proposed language is added that requires the committee liaisons to “facilitate and implement routine periodic reporting by and to the Rules of Judicial Administration Committee on the development and progress of rule proposals under consideration and their potential impact on other existing or proposed rules.” We further amend subdivision (a)(4), as proposed, to clarify that committee liaison members serve at the pleasure of their respective committee chair and to clarify that the president-elect of the Board of Governors appoints sitting members of each rules committee to serve as chairs and vice chairs.

We also amend subdivision (a)(5) of rule 2.140, as proposed, to ensure that each rules committee shares rule amendment information with other committees in a timely manner by adding a requirement that each committee “promptly and timely” furnish to the other rules committees “all meeting agendas and all minutes or other record of action taken.” This change furthers the RJA Committee’s goal of improving communication between the rules committees and allows other rules committees, including the RJA Committee, to identify and communicate about potential issues with rule changes even before the proposals are approved and formally submitted to the RJA Committee under subdivision (a)(6).

We adopt many of the proposed amendments to the other subdivisions of rule 2.140 either as proposed or with some modifications. On our own motion, we also make a number of additional changes to the rule that are consistent with current procedures for amending court rules. First, we modify the proposed new title to subdivision (b) (Schedule for Rules Proposals) to read “Schedule for Regular-Cycle Rules Proposals.” We change, as proposed, the date a committee must report revisions to its regular-cycle proposals to the Board of Governors from October 15 to October 31. We make several additional changes to subdivision (b) that are consistent with current procedures for regular-cycle rules changes, such as recognizing that some proposals are considered without oral argument and that regular-cycle rules cases that are scheduled for oral argument are generally scheduled for June. We make the proposed technical changes to subdivision (d) (Emergency Amendments by Court) of rule 2.140 and also make a number of additional changes to more fully delineate the current procedures for amendments adopted on the Court’s own motion.

The RJA Committee proposes extensive amendments to subdivision (e) (Emergency Recommendations by Committee) of rule 2.140, including changing the subdivision’s title and adding new subdivisions (e)(1) and (e)(2). We adopt some of the committee’s changes as proposed, and modify some of the proposals, including the suggested subdivision titles. We retitle subdivision (e) “Out-of-Cycle Committee Proposals” and title new subdivisions (e)(1) and (e)(2) “Emergency Proposals and Proposals in ' Response to Legislative Changes” and “Non-Emergency Out-of-Cycle Proposals,” respectively. On our own motion, we make additional changes to this subdivision in order to make this subdivision consistent with current procedures for out-of-cycle rule proposals and to clarify that the rules committees should use their “fast-track procedures” for rule amendments needed due to changes in legislation.

We make the proposed technical changes to subdivision (f) (Request by Court). On our own motion, we make a number of changes to streamline this subdivision and make it consistent with the current procedures for committee recommendations submitted in response to a request by the Court. We delete much of the existing language in subdivision (f) and add new subdivisions (f)(1) (Recommended Rule Changes) and (f)(2) (No Action Recommendations). New subdivision (f)(1) recognizes that rule changes recommended in response to a request by the Court are currently submitted to the Court in either regular or out-of-cycle reports and the procedures for regular and out-of-cycle proposals generally are followed. New subdivision (f)(2) delineates the current procedure for committee recommendations that no rule change is warranted and requires such recommendations to be submitted to the Court in a “no action report” rather than in a report proposing rule changes under other subdivisions of rule 2.140. This new subdivision also codifies the Court’s current practice of having the Clerk of this Court provide notification of the Court’s action on the committee’s recommendation. These procedures promote the Court’s timely consideration of “no action” recommendations and ensure their efficient processing. We also make the proposed technical amendments to subdivision (g) (Amendments to the Rules of Judicial Administration) and make several additional technical changes to that subdivision that are consistent with technical changes being made to other subdivisions of rule 2.140.

We amend 2.510(a) (Foreign Attorneys; Eligibility), as proposed, to remove the pro hac vice appearance limitation for federally authorized state court appearances by providing that the rule “shall not affect the eligibility of a foreign attorney to appear in a Florida court when authorized by federal law.” We have modified the proposed editorial change in item 10 of the “Verified Motion for Admission to Appear Pro Hac Vice” at the end of rule 2.510 that would replace the reference to disciplinary resignation with a reference to disciplinary revocation. As modified, the amendment to item 10 requires the movant to represent that he or she “is not a disbarred member of The Florida Bar nor has Movant received a disciplinary resignation or disciplinary revocation from The Florida Bar.” This change recognizes that while a disciplinary revocation has replaced a disciplinary resignation, and since 2006, attorneys have not been able to agree to a disciplinary resignation, there are still former members of The Florida Bar who were granted disciplinary resignations. See In re Amends. to Rules Regulating Fla. Bar, 916 So.2d 655, 656 (Fla. 2005) (deleting rule 3-7.12 (Disciplinary Resignation from the Florida' Bar) from the Rules Regulating the Florida Bar effective January 1, 2006); In re Amends. to Rules Regulating Fla. Bar (Biannual Report), 101 So.3d 807, 807-808 (Fla. 2012) (adding rule 3-7.12 (Disciplinary Revocation of Admission to the Florida Bar) to the Bar Rules).

Finally, we adopt the proposed clarifying and technical amendments to rule 2.616 (Service pf Pleadings and Documents). Subdivision (b)(l)(E)(i) (Format of E-mail for Service) is amended to require the “case style” be included in the subject line in a service e-mail. The amendment to subdivision (b)(2) (Service by Other Means) provides that service in that situation, must be made by “noting the non-service in the certificate of service;1 and stating in the certificate of service that a copy of the served document may be obtained, on request, from the clerk of the court or from the party serving the document.” According to the report, this amendment is intended to avoid the failure of -service in situations when a pro se litigant has not designated an e-mail address, and no physical address is known.

CONCLUSION

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; -deletions are indicated by struck-through type. The. amendments shall become effective January 1, 2018, at 12:01 a.m. Because the amendments to rule 2.140 that are adopted on the Court’s own motion have not been published for comment, interested persons shall have sixty days from the date of this opinion in which to comment on those amendments.

It is so ordered.

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

APPENDIX

RULE 2.140. AMENDING RULES OF COURT

(a) Amendments Generally. The following procedure shall be followed for consideration of rule amendments generally other than those adopted under subdivisions (d), (e), (f), and (g):

(1) [No Change]

(2) Proposals shall be submitted to the clerk of the supreme courts the committee chairist of aFloridaBar committee listed in subdivision ia¥3\ or the Bar staff liaison of The Florida Bar in writing and shall include a general description of the proposed rale change or a specified proposed change in content. The clerk of the supreme court shall refer proposals to the appropriate committee under subdivision (a)(3).

(3) [No Change]

(4) Each committee shall be composed of attorneys and judges with extensive experience and training in the committee’s area of practice of the committee calling for-r-egular-freauent-use-of-the-rulesconcentration. Members of the Rules of Judicial Administration Committee shall also have previous rales committee experience or substantial experience in the administration of the Florida court system. The chair of each rules committee shall appoint one of its members to the Rules of Judicial Administration Committee to seive as a regular member of the Rules of Judicial Administration Committee to facilitate and implement routine periodic reporting bv and to the Rules of Judicial Administration Committee on the development and progress of rule proposals under consideration and their potential impact on other existing or proposed rules. The members of theeach rules committee shall serve for 3-year staggered terms, except members appointed bv a rules committee chair to the Rules of Judicial Administration Committee who shall seive at the pleasure of the respective rules committee chairs. The president-elect of The Florida Bar shall appoint sitting members of each rales committee to serve as the-chair(s) and vice chair£s) of eaoh eommitteefor each successive year.

■ (5) The-committees shall consider'(md-vote on aaoh-proposal-The rules committees may originate proposals and are-drarged-witfa-the-dutv-ofshall regularly review and reevaluation ofreevaluate the rales to advance orderly and inexpensive procedures mfor the administration of justice. The committees shall consider and vote on each proposal. The rules committees may accept or reject proposed amendments or may amend proposals. The rules committees shall keep Hdatites-of their activities^ ■which minutes'shall-refleet die action taken on-each erenesalnrepare meeting agendas and minutes reflecting the status of rales proposals under consideration and actions taken. Copies of the minutes shall be furnished to the clerk of fee supreme court, to fee board of governors of The Florida Bar, and to the proponent of any proposal considered at fee meeting. Each mies committee shall furnish promptly and timely to every other rules committee all meeting agendas and all minutes or other record of action taken.

(6) The Rules of Judicial Administration Committee shall also serve as afee central rules coordinating committee. Each mies committee-shall have at least 1 of its members appointed to-fee-Rules of Judicial Administration Committee to-serve-as liaison. All committees shall provide a copy of any proposed rules changes to the Rules of Judicial Administration Committee within 30 days of a committee’s affirmative vote to recommend fee proposed change to fee supreme court. The Rules of Judicial Administration Committee shall then refer all proposed mies changes to those mies committees that might be affected by fee proposed change.

(7) [No Change]

(b) Schedule for Regular-Cycle RuIes Proposals.

(1) [No Change]

(2) No later than June 15 of the year prior to each reporting year or such other date as the board of governors of The Florida Bar may set, each reporting committee shall submit all proposed rule changes to fee board of governors with the committee’s final numerical voting record on each proposal. Contemporaneously wife reporting proposed rule changes to fee board of governors, each committee report shall be furnished to the Speaker of fee Florida House of Representatives, the President of the Florida Senate, and the chairs of the House and Senate committees as designated by fee Speaker and the President, and published on the -Internet-website of The Florida Bat- and in the Fl-or-ida-Bar Joumal-or-The Florida Bar NewsNews. Any person desiring to comment upon proposed rule changes shall submit written comments to the appropriate committee chair£s) no later than August 1 of the year prior to each reporting year. Each committee shall consider any comments submitted and thereafter report to the board of governors, no later than October ⅜531 of the year prior to each reporting year, any revisions to the proposed rule changes. Contemporaneously with reporting any revisions to the board of governors, each committee’s revised proposed rule changes shall be furnished to the Speaker of the Florida House of Representatives, the President of the Florida Senate, and the chairs of the House and Senate committees as designated by the Speaker and the President, and published on the Internet website of The Florida Bar? and in the Florida Bar J&umal-orThe Florida Bar NewsAfewy. Any person desiring to comment thereafter shall submit written comments to the supreme court in accordance with subdivision (b)(6).

(3) [No Change]

(4) No later than Februaty 1 of each reporting year, each committee and the executive director of The Florida Bar shall file a report of its proposed rule changes with the supreme court. Each committee may amend its recommendations to coincide with the recommendations of the board of governors or may decline to do so or may amend its recommendations in another manner. Any such amendments shall also be reported to the supreme court. The report and proposed rule changes must confonn to the Guidelines for Rules Submissions approved by administrative order and posted on the Internet websites of the supreme court and The Florida Bar. Consistent with the requirements that are fully set forth in the Guidelines, the report shall include:

(A) a list of die proposed changes, together with a detailed explanation of each proposal that includes a narrative description of how each amendment changes the language of the rule and a thorough discussion of the reason for each change;

(B) the final numerical voting record of the proposals in the committee;

(C) the name and address of tire proponent of each change, if other than a member of the rules committee;

(D) a report of the action taken by the committee on comments submitted in accordance with subdivision (b)(2);

(E) a report of the action and voting record of the board of governors;

(F) any dissenting views of the committee and, if available, of the board; and

■ (G) an appendix containing all comments submitted to the committee, all relevant background documents, the proposed amendments in legislative format, and a,two-column chart setting forth the proposed changes in . legislative format in the festleft column and a brief summary of the explanation of each change given in the report in the second-right column.

The report and the proposed rule changes shall be filed with the supreme court-, in-lcgislative-forma.t, both on pape-r-and- in an electronic format approved by the supreme court.

(5) If oral argument is deemed necessary, the supreme court shall establish a date d-uringin the month ofM-ay-or-June of each reporting year for oral argument on fee proposals. Notice of the feeariaaoral argument on the proposals and a copy of the proposals shall be furnished to fee affected committee chair(s) and vice chairisl. the executive director and staff liaison of The Florida Bar, all members of fee Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of fee Florida House of Representatives, the President of fee Florida Senate, the chairs of fee House and Senate committees as designated by the Speaker and the President, and any person who has asked in writing filed with fee clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically, If-the-coKaarttee-meéifies-its-reeoHgHeHdations after-considering comments submitted-in-accer-dance-wife- suhdivis-ion-(-b)(2)r4Xhe recommendations or a resume of them shall be published on the -Internet-websites of the supreme court and The Florida Bar and in -fee-Florida. Bar Journal-or-The Florida Bar NewsAfewy before the -hearingoral argument or consideration of fee proposals without oral argument. Notice of the hearineoral argument, if scheduled. shall also be published on the Internet-websites of the supreme court and- The F-loHda-Bar-and-m-th&F-lo-fida-Bar Journal-or-Fl-eriéa Bar News.

(6) Before-the-da.te of oral -argumentWithin the time allowed for comments set bv the supreme court, any person may file comments concerning the proposals. All comments and other submissions by interested persons shall be filed with the clerk of the supreme court and served on the chair£s) of the appropriate rules committee, the Bar staff liaison, and on the proponent of the rule change if other than a member of the rules committee. The chant's) of the rules committee and the executive director of The Florida Bar shall file a response to all comments within the time period set by the court. Ail comments and other submissions regarding the rale change proposals; in .addition to being filed-with-the supreme ' court in-paper-format, shall ateo-be filed in an approved electronic format approved bvwith the supreme court. Priorto-tlie date-of oral argument and aAs soon as practicable after the date of filing, the clerk of the supreme court shall publish on the Internet-websites of the supreme court and'The Florida Bar-all comments and the responses of the chair£s) of the rales committee that have been filed concerning the rule change proposals. All requests or submissions by a rules committee made in connection with a pending rule change proposal shall be filed with the clerk of the supreme court and thereafter published by the clerk of the supreme court on the ■Internet-websites of the supreme court and The Florida Bar.

(7) Qrders-efthe-susreme court on saidOpinions adopting the proposals should be adópteáissued in sufficient time for the rule changes to take effect on January 1 of the year following the reporting year. The supreme court may permit motions for rehearing to be filed on behalf of any person who filed a comment. The Florida Bar, any bar association, and the affected committee.

(c) Rejected Proposals. If a committee rejects a proposal, the proponent may submit the proposed rule to the board of governors and shall notify the chair£s) and vice chair{s} of the affected committee of the submission of the proposed rale to the board of governors. Minority reports of committees are allowed and may be submitted to both the board of governors and the supreme court.

(d) Emergency Amendments by Court. The supreme court, with or without notice, may change court rules at any time if an emergency exists that, does not permit reference to the appropriate committee of The Florida Bar for recommendations. The rule changes must cOrifonnto the Guidelines for Rules Submissions approved bv administrative order and posted on the websites of the supreme court and The Florida Bar. If a change is made without reference- to ths committee^ tThe change may become effective immediately or at a future time. In either event, the court shall give notice of and fix a date for further consideration of the change. Any person may file comments concerning the change, seeking its abrogation or a delay in the effective date, in accordance with the procedures set forth in subdivision (b)(6)-of-this-rule. The court may allow oral argument'in support of such comments by The Florida Bar, by its sections and committees, and by other bar associations. Notice of the hearineoral argument, if scheduled, on the change and a copy of the change shall be furnished to the affected committee chair(s) and vice chants'), the executive director and staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, and any person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically. TheNotice of the change shall be published on the Internet websites of the supreme court and The Florida Bar, and in the-Florida Bar Journal or The Florida Bar NewsNews either before the Irear-mgor after the change is adopted. Notice of the hearineoral argument if scheduled, shall also be published on the Internet-websites of the supreme court and The-Florida-Bar, and in the Florida-Bar Journal or Florida Bar-News,

(e) Out-of-Cvcle Committee Proposals.

ill Emergency Recommcndatioas-bv GommittceProposals and Proposals in Response to Legislative Changes. If, in the opinion of a committee, a proposal is of an emergency nature or a rule amendment is necessary due to changes in legislation, and the board of governors concurs, proposals may be made at any time to the supreme court. The report and proposed rale changes mav be riled without prior publication for comment and must conform to the Guidelines for Rules Submissions approved by administrative order and posted on the -I-nt-em-et websites of the supreme court and The Florida Bait The rules committees’ fast-track procedures shall be used to address legislative changes to ensure that any resulting proposed rule amendments are filed with and can be adopted bv the court before or soon alter tire effective date of the legislation. If the court agrees that an emergency exists or a rule change is necessary due to a legislative change, the court may publish the rale amendment for comment after adopting it or mav set a time for oral argument -aador for consideration of tire proposal without oral argument. Notice of the heariagoral argument on the proposals, if scheduled before or after adoption, and a copy of the proposals shall be furnished to the affected committee chair£s} and vice chairfsl. the executive director and the staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of tire Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, and any person who has asked in wilting filed with the clerk of the supreme court tor a copy of the notice. The clerk may provide the notice electronically. Prior to or after their adoption. Tthe recommendations or a resume of them shall be published oil tire Internet-websites of tire supreme court and The Florida Bar, and in the Florida Bar Journal orThe Florida Bar NewaNews before-the-hearing. Anv person mav tile comments concerning the changes, in accordance with the procedures set forth in subdivision (⅛⅛6\ Notice of the hearingoral argument if scheduled, shall also be published on the Internet websites of the supreme court -and The Florida Bar, and in-t-he-Flori da -Bar .Touraal-or Florida Bar-News.

(21 Non-Emergencv Out-of-CvcIe Proposals. If. in the opinion of a committee, a proposal is not of an emergency nature, but is sufficiently necessary to the administration of justice that it should not wait until the next reeular-cvcle submission, and the board of governors concurs, proposals mav be made out-of-cvcle at anv time to the supreme court. The report and proposed rule changes must conform to the Guidelines for Rules Submissions approved by administrative order and posted on tire websites of the supreme court and The Florida Bar. Such out-of-cvcle submissions must be published in The Florida Bar News and posted on the website of The Florida Bar for comment, and such comment must be reviewed and addressed by the committee prior to the out-of-cvcle rule submission to tire board of governors to recommend acceptance, rejection, or amendment. If the supreme court agrees that a proposal should be addressed before the next regular-cvcle report, the supreme court mav set a tune for oral argument or for consideration of the proposal without oral argument. Notice of the oral argument on the proposals. if scheduled, and a copy of the proposals shall be furnished to the affected committee chain's) and vice chairtsl the executive director and the staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each j udicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of tire House and Senate committees as designated by the Speaker and the President, the person who initially proposed the matter to the committee, and anv person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk mav provide the notice electronically. The recommendations or a resume of them shall be published on the websites of the supreme court and The Florida Bar, and in The Florida Bar News for comment before the oral argument or consideration of the proposals without oral argument. Anv person mav file comments concerning the proposals, in accordance with the procedures set forth in subdivision (W6\ Notice of the oral argument, if scheduled, shall also be published on the website of the supreme court.

(f) Request by Court The supreme court may direct special consideration of a proposal at times other than those specified in this rule and may require a committee to report its recommendation with the recommendations of tire board of governors. All requests or submissions by a rules committee made in connection with a request under this subdivision shall be filed with or submitted to the clerk of tire supreme court as provided in this subdivision, The report and proposed rule changes must conform to the Guidelines for Rules Submissions approved by administrative order and posted-on the Internet websites-of-t-fae supreme court and-The -F-loridarBar: Thosupremo court-may-scf-oral argumont-on the report at anytime. Notice of the hearing-on-the proposals-and a- copy-efthe proposals shall be-fumished-te4he affected" committee-chair and vice chalr^-the executive direetor- of-The-F-loHda Bar;' all members-of-the-Judicial Management Councilrthe -eledc-and-chief judge of each-distr-ief-oourt of-appeal, the clerk and chief judge of each judicial circuit, the Speaker-of the Florida House-of Representatives;- -the-Pwsidenfef the-F-lorida-Senate,'' the chairs of the -House-and Senate committees as-designated by the Speaker and the'Presi dent;-and-any-persen who has- asked-in -writ-ing-ffled-w-ith-the clerk of the-supiome-court for a copy-of-tfae-notioo:-Rhe-&1-&rk nmy-prov-idet-hs notice-ekiefroiTically.- Tile -recommendations or-a resume-of ■ the-a-shall-be-publ-ished on the-Internet websites-of-the - supreme court and-T-he-F-lorida-Baivand-in-tlie -Florida Bar-J&tMwl-or Flori da- Bar--News-befer-e4he hearing, Notioe of-the-heari-ng-shall also be published-on-the-T-ntemet-websites of the-supreme-eourl-and-T-he-FloridaBar, and-ln-the-Ploi-idaDar Journal or-F4e-ri4a

(11 Recommended Rule Changes, A rule change recommended in response to a request under this subdivision shall be included in the rules committee’s next regular-cycle report filed under subdivision (bl. unless the court directs or the committee determines and the board of governors agrees that tire rule change should be submitted out of cycle. If the committee submits a recommended change out of cycle, the procedures for out-of-cvcíe ride proposals under subdivision Tel shall apply, except the report shall state that it is filed in response to a request bv the court under this subdivision.

(21 No Action Recommendations. If tire court refers a matter to a rules committee for consideration only and does not direct the committee to propose a rule change, and after considering the matter referred the committee determines that no rule change is warranted, the committee shall submit a “no action report” to the court exnlainingits recommendation that no rule change is needed. A no action recommendation should not be included in a report proposing rule changes filed under any other subdivision of this rule. After the court considers the recommendation, the clerk shall notify the rules committee chaiifsl and the executive director and the staff liaison of The Florida Bar whether any further action is required of the committee.

(g) Amendments to the Rules of Judicial Administration.

(1) Amendments Without Referral to Rules Committee. Changes to the Rules of Judicial Administration contained in Part II, State Court Administration, of these mies, and rules 2.310, and 2,320, contained in Part III, Judicial Officers, generally will be considered and adopted by the supreme court without reference to or proposal from the Rules of Judicial Administration Committee. The supreme court may amend mies under this subdivision at any time, with or without notice. If a change is made without notice, the court shall fix a date for future consideration of the change and the change shall be published on the Internet websites of the supreme court and The Florida Ban and in the Florida ■Bar-Journal orThe Florida Bar News/fcw.v. Any person may file comments concerning the change, in accordance with the procedures set forth in subdivision (b)(6)-of this rule. The court may hear oral argument on the change. Notice of the hearingoral argument on the change, if scheduled, and a copy of the change shall be provided in accordance with subdivision (d) of this rule.

(2) Other Amendments. Amendments to all other Rules of Judicial Administration shall be referred to or proposed by the Rules of Judicial Administration Committee and adopted by the supreme court as provided in subdivisions (a), (b), (c), (d), (e), and (f) of-this rule.

(h) [No ChangeJ

Committee Notes

[No Change]

RULE 2.510. FOREIGN ATTORNEYS

(a) Eligibility. Upon filing a verified motion with the court, an attorney who is an active member in good standing of the bar of another state and currently eligible to practice law in a state other than Florida may be permitted to appear in particular cases in a Florida court upon such'conditions as the court may deem appropriate, provided that a member of The Florida Bar in good standing is associated as an attorney of record. The foreign attorney must malee application in each court in which a case is filed even if a lower tribunal granted a motion to appear in the same case. In determining whether to permit a foreign attorney to appear pursuant to this rule, the court may consider, among other tilings, information provided under subdivision (b)(3) concerning discipline in other jurisdictions. No attorney is authorized to appear pursuant to this rule if the attorney (1) is a Florida resident, unless the attorney has an application pending for admission to The Florida Bar and has not previously been denied admission to The Florida Bar; (2) is a member of The Florida Bar but is ineligible to practice law; (3) has previously been disciplined or held in contempt by reason of misconduct committed while engaged in representation permitted pursuant to this rule provided, however, the contempt is final and has not been reversed or abated; (4) has failed to provide notice to The Florida Bar or pay the filing fee as required in subdivision (b)(7); or (5) is engaged in a “general practice” before Florida courts. For purposes of this rule, more than 3 appearances within a 365-day period in separate cases shall be presumed to be a “general practice.” Appearances at different levels of the court system in the same case shall be deemed 1 appearance for the purposes of determining whether a foreign attorney has made more than 3 appearances within a 365-day period. In cases involving indigent or pro bono clients, the court may waive the filing fee for good cause shown. This rule shall not affect the eligibility of a foreign attorney to appear in a Florida court when authorized by federal law.

(b) [No Change]

VERIFIED MOTION FOR ADMISSION TO APPEAR PRO HAC VICE PURSUANT TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.510

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing motion was served by mail to PHV Admissions, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2333 accompanied by payment of the $250.00 filing fee made payable to The Florida Bar, or notice that the movant has requested a judicial waiver of said fee; and by (e-mail) (delivery) (mail) (fax) to (name of attorney or party if not represented)

RULE 2.516. SERVICE OF PLEADINGS AND DOCUMENTS

(a) [No Change]

(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court,

(1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal (“Portal”) or other authorized electronic filing system with a supreme court approved electronic service system (“e-Service system”) served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk (“e-Service”). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1)(A).

(A) ]No Change]

(B)Exception to E-mail Service on Attorneys. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision i

(C) Service on and by Parties Not Represented by an Attorney. Any party not represented by an attorney may serve a designation of a primary e-mail address and also may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding by the means provided in subdivision (b)(l) of this rule. If a party not represented by an attorney does not designate an e-mail address for service in a proceeding, service on and by that party must be by the means provided in subdivision (b)(2)ofth]’s--H-ile.

(D) [No Change]

(E) Format of E-mail for Service. Service of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.

(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served.

(ii) - (iv) [No Change]

(2) Service by Other Means. In addition to, and not in lieu of, service by e-mail, service may also be made upon attorneys by any of the means specified in this subdivision. Tf a document is served by more than one method of service, the computation of time for any response to the served document shall be based on the method of service that provides the shortest response time. Sendee on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by leaving it with noting the non-service in the certificate of service, and stating in the certificate of service that a copy of the served document may be obtained, on request, from the clerk of the court or from the party serving the document. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:

(A) - (F) [No Change]

(c)-(h) [No Change]

      . See art. V, § 2(a), Fla. Const.

      . Minor editorial and technical amendments also are made throughout rule 2.140. As explained later in this opinion, we have modified a proposed "editorial” amendment to rule 2.510.

      . All comments- must be filed with the Court on or before November 6, 2017, with a certificate of service verifying that a copy has beeri served on the Chair of the RJA Committee, Jqdson Lee Cohen, 14125 N.W. 80th Avenue Suite 400, Miami Lakes, Florida 33016-2350, jcohen@weinsteincohen.com, and on the Bar Staff Liaison to the Committee, Krys Godwin, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, kgodwin@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November .27, 2017, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar/the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No, AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017), Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies áre required or will be accepted..


text:
    IN RE: AMENDMENTS TO FLORIDA PROBATE RULES 5.550 AND 5.695-2017 FAST-TRACK REPORT.
    No. SC17-1365
    Supreme Court of Florida.
    September 7, 2017
    Jonathan Adam Galler, Chair, Florida Probate Rules Committee, Proskauer Rose, LLP, Boca Raton, Florida; John F. Harkness, Jr., Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

In response to recent legislation, The Florida Bar’s Probate Rules Committee (Committee) has filed an out-of-cycle, fast-track report proposing amendments to Florida Probate Rules 5.650 (Petition to Determine Incapacity) and 5.695 (Annual Guardianship Reports). The Board of Governors of The Florida Bar unanimously approved the proposals. We adopt the proposed rule amendments and make minor revisions to the new committee note to rule 5.550 in order to correct some of the statutory references.

The proposed amendments are in response to changes to sections 744.331 and 744.367, Florida Statutes (2016), that were made by sections 1 and 2 of chapter 2017-16, Laws of Florida, which became effective July 1, 2017. After considering the Committee’s proposals and the relevant legislation, we amend the Florida Probate Rules as proposed.

We amend rule 5.550 (Petition to Determine Incapacity) to add new subdivisions (e) (Reports) and (f) (Adjudicatory Hearing) to address changes made to sections 744.331(3)(e), (3)(h), and (5)(a), Florida Statutes (2016), and the creation of new section 744.331(3)(i), Florida Statutes, by section 1 of chapter 2017-16, Laws of Florida. New subdivisions (e)(1) (Filing), (e)(2) (Service), and (e)(3) (Objections) of rule 5.550 provide the filing, service, and objection requirements for the reports of committee members appointed to examine an alleged incapacitated person. See § 744.331(3)(e), (3)(h), & (3)(i), Fla. Stat. (2017). New subdivision (f) (Adjudicatory Hearing) provides the timing requirements for conducting the adjudicatory hearing on a petition to determine incapacity. See § 744.331(5)(a), Fla. Stat. (2017). We have revised the new committee note to rule 5.550 to reference the appropriate statutory provisions.

Finally, we amend subdivision (a)(1) (Contents and Filing; Guardian of the Person) of rule 5.695 to change the reporting deadlines for annual guardianship reports consistent with the changes made to section 744.367(1), Florida Statutes (2016), by section 2 of chapter 2017-16, Laws of Florida. A new committee note also is added to this rule.

Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

APPENDIX

RULE 5.550. PETITION TO DETERMINE INCAPACITY

(a) - (d) [No Change]

(el Reports.

(1) Filing. Each member of the examining committee must file his or her report with the clerk of the court within 15 davs after appointment.

(21 Service. Within 3 davs after receipt of each examining committee member’s report, the clerk shall seive the report on die petitioner and the attorney for the alleged incapacitated person bv electronic mail delivery or ■ United States mail, and, upon service, shall file a certificate of service in the incapacity proceeding. The petitioner and the attorney for tire alleged incapacitated person must be served with all reports at least 10 davs before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person mav waive the 10-dav requirement and consent to the consideration of the report bv the court at the adjudicatory hearing. If such service is not timely effectuated, the petitioner or the alleged incapacitated person mav move for a continuance of the hearing.

(31 Objections. The petitioner and the alleged incapacitated person mav object to the introduction into evidence of all or anv portion of the examining committee members’ reports bv filing and serving a written objection on the other party no later than 5 davs before tire adjudicatory hearing. The objection must state tire basis upon which the challenge to admissibility is made. If an objection is timely filed and served, the court shall apply the rules of evidence in determining the reports’ admissibility. For good cause shown. Hie court mav extend the time to file and serve the written objection.

(f) Adjudicatory Hearing. Upon appointment of the examining committee, the court shall set the date upon which the petition will he heard. The adjudicatory hearing must he conducted within at least 10 davs. which time period mav be waived, but no more than 30 davs after the filing of the last filed report of the examining committee members, unless good cause is shown.

Committee Notes

Rule History

1980 Revision - 2016 Revision: [No Change]

2017 Revision: Adopts new subdivisions (ciflWe¥3) to address statutory changes in sections 744.331 (3 Yet. f3Yh). and Í3¥i\ Florida Statutes, regarding filing, service, and objections to examining committee members’ reports. Adopts new subdivision ffl to address statutory changes regarding the timing of the adjudicatory hearing in section 744.331f5Ya\ Florida Statutes. Committee notes revised.

Statutory References

[No Change]

Rule References

[No Change]

RULE 5.695. ANNUAL GUARDIANSHIP REPORTS

(a) Contents and Filing.

(1) Guardian of the Person. Unless the court requires reporting on a calendar-year basis, the guardian of the person shall file an annual guardianship plan at lcast-60 davs. but no -morc-than 90 davs. beforewithin 90 davs after the last day of the anniversary month in which the letters of guardianship were signed. The plan must cover the coming fiscal year, ending on the last day of such anniversary month. Tf the court requires calendar-year reporting, the guardianship plan for the forthcoming year must be filed on or after-September-1, but no later than December 1. of the current-vearbefore April 1 of each year.

(2) [No Change]

(b) [No Change]

Committee Notes

[No Change]

Rule History

1975 Revision - 2015 Revision [No Change]

2017 Revision: Subdivision CaY l-) amended to conform to statutory changes regarding reporting deadline in section 744,36711 ~). Florida Statutes. Committee notes revised.

Statutory References

[No Change]

Rule References

[No Change]

      . See Fla. R. Jud. Admin. 2.140(e),

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      .See ch. 2017-16, § 6, Laws of Fla.

      . All comments must be filed with the Court on or before November 6, 2017, with a certificate of service verifying that a copy has been served on the Committee Chair, Jonathan Adam Galler, 2255 Glades Road, Suite 421, Boca Raton, Florida 33431-7382, jgaller@ proskauer.com, and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, HTelfer@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November 27, 2017, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


author: Per Curiam.

text:
    Justin SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-467
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]
    Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

This case involves two adjudications of direct criminal contempt stemming from profane and rude comments made by the Appellant during a change of plea healing. Appellant raises four challenges to his adjudications and sentences: (1) he lacked the necessary intent for his first contempt charge; (2) his two charges should have been one charge because they were part of a continuous series of events; (3) the trial court erred by not strictly following the procedures of Florida Rule of Criminal Procedure 3.830; and (4) the trial court erred in imposing various fees and costs. As explained below, we find merit in all but the first challenge.

First, Appellant’s stream of profanity, and especially a vulgar comment referring to “disqualifying” the court, were sufficient to show an intent to “embarrass, hinder, or obstruct the court” or to “lessen its authority or its dignity.” Berman v. State, 751 So.2d 612, 614 (Fla. 4th DCA 1999) (quoting Schenck v. State, 645 So.2d 71, 73 (Fla. 4th DCA 1994)). Appellant’s first argument is therefore without merit.

Next, Appellant’s second contempt charge was based on what appears from the transcript to be a mocking statement toward the trial judge, asking if he “fe[lt] better” after sentencing Appellant for the first contempt charge. This statement was not sufficiently separate from the original stream of profanity to merit a second contempt charge. See Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th DCA 1992) (describing how multiple instances of contempt can be “continuous” and therefore subject to only one sanction), receded from on other grounds in Gibbs v. State, 676 So.2d 1001 (Fla. 4th DCA 1996). We find the interaction between Appellant and the trial court in this instance to be materially indistinguishable from that described in B.M. v. State, 523 So.2d 1185 (Fla. 2d DCA 1988). In B.M., the defendant and the judge “engaged in a continuous episode of sparring,” as compared with the defendant committing “temporally distinct episodes of contumacious conduct.” Id. at 1186 (quoting Tenorio v. State, 462 So.2d 880, 881 (Fla. 2d DCA 1985)). The “continuous episode” involved the defendant reacting to the judge’s imposition of a first contempt charge by sticking out his tongue. Id. at 1185-86. Here, Appellant reacted to his first contempt charge by mocking and/or questioning the judge’s intentions for the sentence. In both cases, the defendant/appellant engaged in a verbal sparring match with the court, was found to be in contempt, and immediately reacted in a way further intended to lessen the court’s authority. We, like the Second District in B.M., hold that Appellant’s attempt to simply get the last word into the argument is sufficiently continuous with the original contempt charge such that only a single charge was appropriate. Therefore, we reverse Appellant’s second contempt charge in its entirety.

Appellant’s next issue relates to the trial - court’s failure to strictly follow the procedures of Florida Rule of Criminal Procedure 3.830. Such a failure constitutes fundamental error. See A.W. v. State, 137 So.3d 521, 522 (Fla. 4th DCA 2014) (holding a trial court commits fundamental error by failing to follow Florida Rule of Juvenile Procedure 8.150, the juvenile rule equivalent of Florida Rule of Criminal Procedure 3.830); see also Peters v. State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993) (requiring “[sjcrupulous compliance” with Rule 3.830). The State in this case concedes that the trial court failed to allow Appellant the opportunity to present evidence in his defense, instead asking only “why shouldn’t I hold you in direct contempt right now?” See A.W., 137 So.3d at 523 (holding that near-identical phrasing was insufficient). The State also concedes that the trial court erred by not providing a recital of the facts supporting the adjudication of guilt. See id. (references to “his statements,-demeanor, and behavior”’' are insufficient); see also Johnson v. State, 584 So.2d 95, 96 (Fla. 1st DCA 1991) (holding that the attachment of a transcript, which the court apparently .tried but failed to do here, is insufficient). Appellant argues that this error should result, in the complete reversal of his charge, whereas the State argues that a new hearing is the appropriate remedy. The State is correct. The proper remedy for a trial court’s failure to strictly adhere to the requirements of Rule 3.830 is a new hearing at which the rule will be followed. Golant v. State, 202 So.3d 946, 949 (Fla. 4th DCA 2016).

Finally, we agree with Appellant arid with the State’s concession that the statutes and rules supporting the fees and costs imposed by the trial court do not apply to this particular case. Following the hearing required under the previous paragraph, the trial court shall refrain from imposing any of the costs imposed in- its previous judgment.

Reversed and remanded with instructions.

Warner, Levine and Forst, JJ., concur.

      . We need not address whether the trial court could have increased the penalty for the first charge of direct criminal contempt after the follow-up action, as the court had already imposed the maximum penalty permitted trader section 775.02, Florida Statutes (2016).


author: Ciklin, C.J.

text:
    Anthony HENRY, Appellant, v. Tiffany LYONS, Appellee.
    No. 4D16-398
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]

      Tami L. Augen Rhodes of The Law Offices of Tami L. Augen, P.A., West Palm Beach, for appellant.
    Tiffany Lyons, Boynton Beach, pro se.
   Ciklin, C.J.

In this appeal from a final judgment of dissolution of marriage, appellant Anthony Henry (“the husband”) raises multiple issues. We find two of the arguments related to equitable distribution have merit. We otherwise affirm.

First, we address the trial court’s inclusion of a motorcycle in its equitable distribution scheme. The husband claimed the motorcycle had been stolen, but counsel for the appellee (“the wife”) argued it should be included in the equitable distribution scheme and assigned its value at the time of filing, which counsel asserted was about $7,999. During the evidentiary portion of the hearing, the parties did not present any evidence regarding the value of the motorcycle. The trial court, apparently rejecting the testimony that the motorcycle had been stolen, included it in equitable distribution and assigned it a value of $7,999.

The trial court did not err in rejecting the husband’s claim that the motorcycle was stolen. See Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) (recognizing that a judge sitting as a fact-finder may reject a witness’s uncontradict-ed testimony). Nevertheless, the court erred in assigning a value to an asset in the absence of any supporting evidence. See Young v. Young, 816 So.2d 799, 800 (Fla. 3d DCA 2002) (finding that court’s adoption of a valuation supported only by argument of counsel could not be upheld). As to this equitable distribution issue, we reverse and remand for further proceedings. The trial court may take additional evidence on the value of the motorcycle and shall revisit the equitable distribution scheme if necessary.

We turn now to the provisions of the final judgment related to the marital home. The wife was awarded the marital home, and the husband was required to “execute and return to Wife a quit claim deed within three (3) days of presentment.” The final judgment provided for the wife to make an equalizing payment to the husband, of $25,162.25 within ninety days of the date of the judgment. The husband argues that these provisions deprive him of his interest in the marital home.

The husband relies on Thomas-Nance v. Nance, 189 So.3d 1040 (Fla. 2d DCA 2016). There, the trial court awarded the marital home to the husband and required him to pay the wife $100 a month until he had paid off the wife’s $25,000 interest in the home, but required the wife to quitclaim the home to the husband within thirty days of the judgment. Id. at 1041-42. On appeal, the court found this was error, reasoning that the award “effectively deprives the Wife of her present interest in the marital home,” and that the error was compounded by requiring the wife to quitclaim the property to her husband within thirty days of judgment. Id. at 1042. The Second District characterized the twenty-year payment plan as “patently unreasonable.” Id.

Here, the wife was ordered to pay the husband his equalizing payment in full within ninety days of judgment. This payoff scheme is not comparable to the one in Thomas-Nance—the payment plan is not so attenuated that it effectively deprives the husband of his interest in the property. On its face, it is not “patently unreasonable.” However, to the extent the wife is not in a financial position to make the equalizing payment within ninety days of the judgment, the husband would in fact be deprived of his interest in the property if he had to quitclaim the marital home.

While the wife testified that she would obtain equalizing payment funds from a home equity loan if necessary, she offered this testimony before she knew that the trial court would fix the equalizing payment at $25,000. Aside from this testimony, there was no evidence making it apparent that the wife was in a financial position to make the equalizing payment within ninety days of entry of the judgment or that her ability to obtain a home equity loan was likely. The trial court seemingly recognized these issues because in response to the husband’s post-judgment motion, the court required the husband to provide a quitclaim deed to the wife’s counsel, who would deliver it to the wife after the wife made the equalizing payment. The order, however, did not make it clear whether this arrangement would stay in place if this court were to affirm the final judgment.

The wife seems to believe these requirements will stay in place, as she relies on the post-judgment order in characterizing this issue as moot. Based on the lack of evidence of the wife’s ability to make the equalizing payment, and the wife’s apparent lack of objection to the imposition of requirements on delivery of the deed, we remand for the trial court to amend the final judgment to impose any conditions on execution and delivery of the deed that will ensure the husband is not deprived of his interest in the marital home.

In sum, we affirm the final judgment in part, but reverse and remand for further proceedings and amendment of the final judgment with respect to these two equitable distribution issues.

Affirmed in part, reversed in part, and remanded with instructions.

Levine and Forst, JJ., concur.