text:
    FLORIDA BOARD OF BAR EXAMINERS RE: M.K.F.
    CASE NO.: SC17-1910
    Supreme Court of Florida.
    NOVEMBER 1, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and M.K.F. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of three years from July 20, 2016.
2. During the period of probation, the applicant shall:
(a) abstain from the consumption of alcoholic beverages;
(b) abstain from' the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on August 29, 2017, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice -AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other-'hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and
(g) submit quarterly .sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period .attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above!
3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its' designated monitoring agency.
4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates' outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the appli- • cant fails to do so, the Supreme Court of Florida shall terminate his license.
5; The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.
6.If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar,
7. A failure to observe the conditions of . the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of á violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order’of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall, issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the. Court, an order- of suspension shall 'remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.
8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.
9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum 'period of time must be established prior to admission to The Florida Bar on an unconditional basis, . Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.
10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s . file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsi- . bilities under this Consent Agreement.


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Inquiry Concerning a Judge No. 16-496 RE: Philip James YACUCCI, Jr.
    No. SC16-2178
    Supreme Court of Florida.
    [November 2, 2017]

      Honorable Kerry I. Evander, Chair, Honorable Robert Morris, Past Chair, Michael Louis Schneider, Executive Director and General Counsel, and Alexander John Williams, Special Counsel and Assistant General Counsel, Judicial Qualifications Commission, Tallahassee, Florida; and Lauri Waldman Ross of Ross & Girten, Counsel to the Hearing Panel of the Florida Judicial Qualifications Commission, Miami, Florida, for Florida Judicial Qualifications Commission, Petitioner
    Robert J. Watson of Robért J. Watson, P.A., Stuart, Florida, for Judge Philip Ya-cucci, Jr., Respondent
   PER CURIAM.

This matter is before the Court to review the determination of the Florida Judicial Qualifications Commission (JQC) that Judge Philip James Yacucci, Jr., violated Canons 1, 2A, 3B(8), 3B(9), and 3(E)(1) of the Florida Code of Judicial Conduct. The JQC recommends: (1) a public reprimand; (2) a thirty-day suspension without pay; (3) completion of a judicial ethics course within one year; and (4) payment of the costs of the JQC proceedings. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC’s findings and recommended discipline.

BACKGROUND

Judge Yacucci has served as a county court judge in the Nineteenth Judicial Circuit since 2002. On December 8, 2016, the JQC Investigative Panel filed a Notice of Formal Charges against Judge Yacucci for conduct in violation of Canons 1 (judge shall uphold the integrity and independence of the judiciary), 2A (judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), 3B(8) (judge shall dispose of judicial matters promptly, efficiently and fairly), 3B(9) (judge shall refrain from commenting publicly or non-publiely in ways that could interfere with fair trials or hearings), and 3E(1) (judge shall disqualify himself or herself in proceedings where his or her impartiality might reasonably be questioned) of the Code of Judicial Conduct. In his answer, Judge Yacucci denied that his conduct was violative of the Code of Judicial Conduct. On May 1, 2017, the JQC Hearing Panel held an evidentiary hearing, and issued its “Findings of Fact, Conclusions of Law and Recommendations of the Hearing Panel, Florida Judicial Qualifications Commission” (Findings) on June 29, 2017. In re Judge Philip James Yacucci, Jr., No. 16-496 (Fla. Jud. Qual. Comm’n June 29, 2017).

FINDINGS OF THE HEARING PANEL

Judge Yacucci’s violations occurred during the course of an adversarial and contentious professional relationship between Judge Yacucci and attorney Stephen Smith. Id. at 1. Judge Yacucci has served as a county court judge in St. Lucie County since 2002. Id. at 3. Smith, who joined his current employer “The Ticket Clinic” in 2009, handled all of the Ticket Clinic’s cases in St. Lucie County. Id. at 4. Judge Yacucci held Smith in contempt in 2009 for accidentally showing up late to a hearing, and again in 2014 where he jailed Smith for five days for “hotly disputed” reasons. Id. During the 2014 contempt finding, Judge Yacucci announced in the courtroom that he had “lost confidence” in Smith, and. subsequently filed a Florida Bar complaint which was later resolved with ho imposition of discipline. Id. at 4-5.

Thereafter, in 2014, Smith ran against Judge Yacucci for a county court seat in a highly combative election. Id. at 5. Judge Yacucci sued Smith and an electioneering communication organization (“ECO”) for defamation, invasion of privacy, and intentional infliction of emotional distress. Id. Judge Yacucci obtained a temporary injunction against the ECO, but the Fourth District Court of Appeal in Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So.3d 68, 72-73 (Fla. 4th DCA 2014), overturned it for lacking supporting evidence and for triggering First Amendment concerns. Id. at 5-6.

Before election day, a public altercation between Smith and Judge Yacucci occurred at a polling place. Id. at 6. Judge Yacucci asserted that Smith made a sexual innuendo about Judge Yacueci’s wife, and that he responded with heated and profane words. Id. Smith asserted that the judge verbally attacked and physically assaulted him, and so he subsequently sued Judge Yacucci for assault, battery, and defamation. Id. During a televised interview in his courtroom immediately following the incident, Judge Yacucci remarked that Smith “should not be a lawyer,” “should not be in a courtroom,” and that he is “truly a disgrace as a judicial candidate and really as a human being.” Id.

In December 2014, Judge Yacucci won the election, but later appeared before the JQC to discuss his behavior during the election. Id. Judge Yacucci informed the Investigative Panel that he would recuse himself on Smith’s cases, which he did for the following two-and-a-half years. Id. at 7. However, in September 2016, Judge Yacucci refused to recuse himself in State v. Harracksingh, 2015-CT-2111, resolving that he had recused himself on Smith’s case's for long enough and that Smith “was simply a conduit., of the Ticket Clinic,” which Judge Yacucci surmised had funded the ECO in the election campaign against him and was attempting to forum shop by funding judicial-campaigns. Id. at 7-8.

On October 5, 2016, Smith petitioned for a writ of prohibition disqualifying Judge Yacucci from presiding over the Harracksingh case; Id. at 8. Thereafter, Judge Yacucci on his own initiative filed a response to Smith’s petition, detailing the history of disputes between Judge Yacucci and Smith. Id. Judge Yacucci later denied additional motions to disqualify filed by Smith, despite their legal sufficiency, because he wanted an appellate ruling and was “not going to recuse anymore” until he secured it. Id. at 9. Multiple parties subsequently joined the petition for writ of prohibition. Id.

Judge Yacucci later sought guidance from the JQC but did not recuse himself despite advice that recusal was a safer course. Id. Instead, he filed a.seeond unsolicited pleading in response to Smith’s petition for writ of prohibition, reiterating points about Smith’s contempt conviction, Bar complaint, and funding of judicial campaigns by the Ticket Clinic, as well as accusing appellate counsel of intentionally misleading the court. Id. at 9-12. On November 16, 2016, the circuit court granted the writ of prohibition, disqualifying Judge Yacucci from hearing several cases. Id. at 12.

• At the May 1, 2017, evidentiary hearing, the Hearing Panel-heard testimony from Judge Yacucci who maintained that he did not act inappropriately during the polling place altercation and in responding, to Smith’s petition. Id. at 13. He further testified that his televised statements about Smith were truthful, and acknowledged he still.held the same feelings about Smith. Id. at 13-14. Judge Yacucci defended his actions as necessary to counter the Ticket Clinic’s schemes, and “at no point” considered recusal from the viewpoint-of Smith’s clients. Id. at 15-17.

Ultimately, the Hearing Panel found Judge Yacucci guilty of violating Canons 1, 2A, 3B(8), 3B(9), and 3E(1) of the Florida Code of Judicial Conduct. Id. at 19. The Hearing Panel recognized that “[i]t is hard to conceive a situation more likely to create a reasonable fear of partiality and bias on the part of a litigant than the longstanding, personal and professional disputes between these, parties.” Id. at 20. Accordingly, the Hearing Panel recommended: (1) a public reprimand; (2) a thirty-day suspension without pay; (3) completion of a judicial ethics course within one year; and (4) payment of the costs of the JQC proceedings. Id. at 23-25.

After the JQC filed the Hearing Panel’s Findings, this Court ordered Judge Yacucci to show cause why the recommended action. should not be granted. In his response,- Judge Yacucci conceded the findings and most recommendations, disputing only.the recommendation of a thirty-day suspension. -

ANALYSIS

“According to article V, section 12(c)(1) of the Florida Constitution, this Court has discretion to either accept, reject, or modify the [JQC’s] findings and recommendation of -discipline.” In re Renke, 933 So.2d 482, 493 (Fla. 2006). “This Court reviews the. findings of the JQC to determine-whether the alleged violations are supported by clear and convincing evidence ....”, In re Woodard, 919 So.2d 389, 390 (Fla. 2006). “In cases where a-judge admits to wrongdoing and the JQC’s findings are undisputed this Court will ordinarily conclude that, the JQC’s findings are supported by clear and convincing evidence.” In re Diaz, 908 So.2d 334, 337 (Fla. 2005). Judge Yacucci did not contest that his conduct violated Canons 1, 2A, 3B(8), 8B(9), and 3E(1) of the Florida Code of Judicial Conduct, and the JQC’s findings are’undisputed. We therefore conclude that the JQC findings are supported by clear and convincing evidence.

Although this Court “gives the findings and recommendations of-the JQC great weight, ‘the ultimate power and responsibility in making a determination [to discipline a judge] rests with this Court.’ ” In re Kinsey, 842 So.2d 77, 85 (Fla. 2003) (footnote omitted) (quoting In re Davey, 645 So.2d 398, 404 (Fla. 1994)). This Court “reviews the recommended discipline to determine whether it should be approved.” In re Flood, 150 So.3d 1097, 1098 (Fla. 2014) (quoting In re Woodard, 919 So.2d at 390). As previously explained, the JQC recommended: (1) a public reprimand; (2) a thirty-day suspension without pay; (3) completion of a judicial ethics course within one year; and (4) payment of the cost of the proceedings. Because Judge' Yacucci does not contest any aspect of the recommendation other than the thirty-day suspension, we limit our discussion to the suspensión.

Judge Yacucci argues that a thirty-day suspension without pay is excessive and inconsistent with this Court’s precedent. To the contrary, because Judge Yacucci repeatedly violated his duty to be impartial and to disqualify himself from Smith’s cases, and because, this. Court’s precedent supports the imposition of this additional sanction, we conclude that suspension is an appropriate-sanction.

Judge Yacucci’s conduct warrants a sanction harsher than a mere public reprimand, as his longstanding combative relationship with Smith created legitimate fears of partiality and bias on the part of several litigants before his court. The acrimonious relationship between Judge Ya-cucei and Smith, marked by lawsuits, a public altercation and televised disparagement, the jailing of Smith for contempt, judicial campaign disputes, unsolicited attempts to influence a petition for writ of prohibition, and multiple refusals to disqualify himself, clearly displayed Judge Yacucci’s disregard for proper judicial conduct. Further, the responses filed by Judge Yacucci disputed the charges against him and attempted to taint the court’s view of Smith, The judge’s pattern of behavior towards Smith arid his refusal to disqualify himself on several cases despite the legal sufficiency of Smith’s motions constitute clear and egregious violations of the Canons of the Code of Judicial Conduct.

In cases involving misconduct of a similarly serious nature, where judges have diminished the public’s confidence in the integrity of the judiciary and in judicial impartiality, this Court has previously imposed sanctions such as suspension without pay in addition to a public reprimand. See In re Holloway, 832 So.2d 716, 729 (Fla. 2002) (ordering thirty-day suspension without pay where a judge repeatedly confronted other judges and aided parties in an ex parte manner); In re Albritton, 940 So.2d 1083, 1089 (Fla. 2006) (ordering thirty-day suspension without .pay where a judge violated five canons via a pattern of misconduct involving improper courtroom decorum and intemperate behavior); In re Shepard, 217 So.3d 71, 83-84 (Fla.) petition for cert. filed, No. 17-493 (U.S. Sept. 29, 2017) (ordering ninety-day suspension without pay where a judge circulated a deceptive and misleading advertisement in her. judicial campaign).

In In re Contini, 205 So.3d 1281, 1284-86 (Fla. 2016), this Court affirmed a public reprimand, but not suspension, where the judge engaged in ex parte 'communications with counsel and berated counsel in open court. However, the judge in In re Contini admitted, to the wrongdoing, accepted complete responsibility for hjs actions, and apologized with sincere remorse. Id. Here, unlike the judge in In re Contini, Judge Yacucci has not exhibited regret or remorse for his conduct. See In re Davey, 645 So.2d at 405 (“Where a judge admits wrongdoing and expresses remorse before the Commission, this candor reflects positively on his or her present fitness to hold office and can mitigate to some extent a finding of misconduct.”). Judge Yacucci did not apologize nor cooperate with the JQC, but instead attempted to justify his actions during the JQC hearings as well as in his briefs to this Court.

CONCLUSION

Judge Philip James Yacucci, Jr., is hereby suspended without pay for thirty days from his duties as a county court judge of the Nineteenth Judicial Circuit. We order Judge Yacucci to pay the costs of these proceedings, and we remand this case to the JQC for a determination of the amount of such costs. We order Judge Yacucci to attend a judicial ethics course to be completed within one year. We also command Judge Yacucci to appear before this Court for the administration of a public reprimand at a time to be set by the. Clerk of this Court. The effective date of the suspension shall be within fifteen days from the date of this opinion at the direction of the Chief Judge of the Nineteenth Judicial Circuit. Once the effective date is determined, the Court Administrator for the Nineteenth Judicial Circuit shall submit a personnel action request (PAR) form to the Personnel Office of the Office of State Courts Administrators for processing. Absent an order from this Court, a motion for rehearing of this decision will not toll the effective date of the suspension.

It is so ordered.

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

LEWIS,. J., concurs in result.

PARIENTE, J., concurs in part and dissents in part with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

concurring in part and dissenting in part.

I concur with the majority because I agree that Judge Yacucci violated the Code of Judicial Conduct throughout the course of an adversarial and contentious professional relationship that escalated during a contested election between Judge Yacucci and attorney Stephen Smith. I dissent in part because I conclude that a longer suspension of at least ninety days is warranted in light of the totality of Judge Yacucci’s conduct, which occurred over a period of years and was unbefitting of a judicial officer both in the courtroom and on the campaign trail. I recognize that Judge Yacucci, first elected as a county court judge in 2002, has in many respects had an unblemished legal-and judicial career, but we' cannot and do not condone Judge Yacucci’s misconduct as found by the Judicial Qualifications Commission (“JQC”) and approved by this Court.

Before the JQC and this Court, Judge Yacucci asserts that his conduct was motivated by “more important larger issues.” He claims that his conduct was motivated by a concern to maintain the independence of the judiciary, which he asserts was under siege by the actions of attorney- Smith, and his employer, the Ticket Clinic. Specifically, Judge Yacucci alleges that attorney Smith engaged in an unethical campaign with the sole goal of obtaining Judge Ya-cucci’s blanket recusal from any of his cases following the campaign.

But the conduct of attorney Smith is not before this Court, and Judge Yacucci’s actions in this case, as found by the JQC, show that Judge Yacucci failed to act in a “manner that promoted public confidence in the integrity and impartiality of the judiciary.” See Code of Jud. Conduct, Canon 2(A). Stating in a televised interview in his courtroom that Smith “should not be a lawyer,” “should not be in a courtroom,” and is “truly a disgrace as a judicial candidate and really as a human being” is the type of quintessential conduct that stands contrary to the core principles espoused in our Code of Judicial Conduct. That those comments followed a public altercation at a polling place where Smith claims that Judge Yacucci verbally and physically assaulted him only confirms that Judge Ya-cucci was conducting himself in a manner antithetical’ to the high standards of conduct expected of our judges.

As the JQC found, “Judge Yacucci attempted to justify his conduct -by resort to the ‘larger issues’ of judicial independence and its ostensible subversion by the Ticket Clinic.” In re Judge Philip James Yacucci [Jr.], No. 16-496 (Fla. Jud. Qual. Comm’n June 29, 2017), at 22. But as the JQC also observed, Canon 1 requires both judicial integrity and judicial independence. The latter “does not offer judges the power to do as they please.” Id. (quoting In re Eriksson, 36 So.3d 580, 588 (Fla. 2010)).

In this case, the majority makes clear that “Judge Yacucci repeatedly violated his duty to be impartial and to disqualify himself from Smith’s cases,” and the “acrimonious relationship between Judge Yacucci and Smith, marked by lawsuits, a public altercation and televised disparagement, the jailing of Smith for contempt, judicial campaign disputes, unsolicited attempts to influence a petition for writ of prohibition, and multiple refusals to disqualify himself, clearly displayed Judge Yacucci’s disregard for proper judicial conduct.” Majority op. at 527. Moreover, “Judge Yacucci did not apologize nor cooperate with the JQC, but instead attempted to justify his actions during the JQC hearings as well as in his briefs to this Court.” Majority op. at 527. Accordingly, the majority properly concluded and Judge Yacucci conceded that he violated the Code of Judicial Conduct.

As the JQC observed, a judge is “not a knight-errant, roaming at will in pursuit of his own ideal[s].” Yacucci, No. 16-496 (Fla. Jud. Qual. Comm’n June 29, 2017), at 22 (quoting Benjamin N. Cardozo, The Nature of the Judicial Process (1921)). Apparently Judge Yacucci also claimed to be motivated by the lack of an adequate response from The Florida Bar to his complaint about attorney Smith. Of course, as the JQC observed:

The Florida Bar has jurisdiction to investigate and discipline lawyers for their conduct in court and during judicial campaigns. Judge Yacucci’s dissatisfaction with the Florida Bar, and perceived disparity between judges and judicial candidates during a contentious election, did not justify personal efforts to punish Mr. Smith and his employer by other means, including improper comments about their character on television or in the appellate court.

Id.

Most assuredly, if an attorney undertook the type of cumulative actions as occurred here, this Court would have imposed a suspension longer than thirty days. Just as we expect attorneys to treat judges with respect, judges have an obligation to treat attorneys with respect. If attorneys act improperly, there are procedures judges can properly follow to address a contempt of court. As the JQC observed:

Judge Yacucci is an experienced lawyer and judge, who made what he perceived to be a valiant effort to rid St. Lucie County of attempts “to intimidate judges with veiled threats” of future judicial challenges. “His zealous pursuit of a pure society apparently clouded his ability to impartially adjudicate the matters before him. His motives are acceptable, but his methods are not.” [In re] Graham, 620 So.2d [1273,] 1275 [(Fla. 1993) ].

Id. at 23.

Judge Yacucci’s cumulative misconduct in this case diminished the public’s perception of the judiciary and, by engaging in this conduct, Judge Yacucci failed to uphold the integrity and independence of the judicial office. If the JQC’s unrefuted findings of misconduct did not cause Judge Yacucci to reflect upon the totality of his actions, I am skeptical that this Court requiring Judge Yacucci to take a judicial ethics course will have its desired effect. See majority op. at 1. For all of these reasons, I would conclude that the conduct in this case warrants, at minimum, a ninety-day suspension.

Accordingly, I concur with the majority with respect to its findings regarding Judge Yacucci’s conduct but dissent as to the majority’s imposition of only a thirty-day suspension without pay and would impose a suspension of at least ninety days.

QUINCE, J., concurs.

      . See, e.g., In re Shepard, 217 So.3d 71, 74 (Fla. 2017) (holding that a ninety-day suspension without pay, public reprimand, and costs, was appropriate where judge made an intentionally deceptive campaign ad misrepresenting an endorsement from a local newspaper and failed to take responsibility for her conduct through either an apology or ac-knowledgement of wrongdoing); In re Decker, 212 So.3d 291, 309 (Fla. 2017) (holding that discipline including a six-month suspension, public reprimand, and costs, was appropriate where misconduct included campaign violations, conflict of interest in representation of clients, and lying to the- court and opposing counsel),


author: PER CURIAM. LAWSON, J.,

text:
    James Bernard BELCHER, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-1144
    Supreme Court of Florida.
    [November 2, 2017]
    Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune Beach, Florida; and Billy H. Nolas, Chief, Cápital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

Petitioner James Bernard Belcher has filed a petition for writ of habeas corpus, challenging the constitutionality of his death sentence, which was based upon a nonunanimous jury recommendation. See Belcher v. State, 851 So.2d 678 (Fla. 2003). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. Because Belcher’s sentence became final after Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), he is entitled to relief, See Mosley v. State, 209 So.3d 1248 (Fla. 2016). Accordingly, we grant the petition, vacate the sentence of death, and remand this case for a new penalty phase proceeding.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ„ concur.

LAWSON, J., concurs specially with an opinion.,

CANADY and POLSTON, JJ., dissent.

LAWSON, J.,

concurring specially.

See Okafor v. State, 225 So.3d 768, 776 (Fla. 2017) (Lawson, J., concurring specially).


author: PER CURIAM.

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 17-02.
    No. SC17-514
    Supreme Court of Florida.
    [November 2, 2017]
    Rebecca Mercier Vargas, Chair, Supreme Court Committee on Standard Jury Instructions in Civil Cases, West Palm Beach, Florida; and Laura K. Whitmore, Vice Chair and Subcommittee Chair, Filing Subcommittee of the Supreme Court Committee on Standard Jury Instructions in Civil Cases, Tampa, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committée filed its report proposing to amend civil jury instructions 502.2 (Wrongful Death Damages: Elements for Estate and Survivors), and 601.2 (Believability of Witnesses). The Committee published its proposals in The Florida Bar News. No comments were received pertaining to the proposal to amend instruction 502.2, while three comments were received pertaining to the proposal to amend instruction 601.2. Upon consideration of these comments, the Committee did not revise its proposed amendments, and the Court did not publish the Committee’s proposals.

Because subparagraphs (d) (Damages of surviving spouse), (e) (Damages by surviving child), and (f) (Damages by surviving parent of child) of instruction 502.2, do not precisely explain that survivors’ pain and suffering damages are to be measured from the date of the decedent’s injury, instruction 502.2 is amended to add the language “[from the date of the injury]” to the above-identified subparagraphs to clarify when survivors’ pain and suffering damages should be measured.

The proposal to amend instruction 601.2 derives from criminal instruction 3.9 (Weighing the Evidence), which- explains that it is proper for a lawyer to talk to a witness about what testimony the witness would give if called to testify. Civil instruction 601.2 is amended to provide that “[It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited just because the witness talked with a lawyer about [his] [her] testimony.]” In addition, the Committee added a new Note on Use for 601.2, which states that “Witness talked to lawyer. This - may be given if requested as either a substantive or a curative instruction whenever there is testb mony that a witness spoke to or met with an attorney for one of the parties. This instruction is not meant to prohibit or limit argument by counsel of the general considerations set forth in 601.2a.”

Having considered the Committee’s report, the comments submitted in response, and the Committee’s reply thereto, we authorize the Committee’s proposals for publication and use as set forth in the appendix to this opinion. New language is indicated by underlining; In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

502.2 WRONGFUL DEATH DAMAGES: ELEMENTS FOR ESTATE AND SURVIVORS

ELEMENTS FOR ESTATE:

In determining the damages recoverable on behalf of (decedent’s) estate, you shall consider the following elements:

a. Lost earnings:

The estate’s loss of earnings of (decedent) from the date of injury to the date of death, [less any amount of monetary support you determine a survivor lost during that period].

b. Lost accumulations:

The estate’s loss of net accumulations: “Net accumulations” is the part of (decedent’s) net income [from salary or business] after taxes, including pension benefits [but excluding income from investments continuing beyond death], which (decedent), after paying [his] [her] personal expenses and monies for the support of [his] [her] survivors, would have left as part of [his] [her] estate if [he] [she] had lived [his] [her] normal life expectancy.

NOTE ON USE FOR 502.2b

The estate may recover lost accumulations when the sole survivor is a parent without a cause of action in his or her own right, as well as when survivors include a spouse or lineal descendant. F.S. 768.21(6)(a) (1985); Vildibill v. Johnson, 492 So.2d 1047 (Fla. 1986). The committee expresses no opinion concerning whether “net accumulations” include income ending at death "which is not derived from salary or business. See F.S. 768.18(5) (1985); Delta Air Lines, Inc. v. Ageloff, 552 So.2d 1089 (Fla. 1989); Wilcox v. Leverock, 548 So.2d 1116 (Fla. 1989).

c. Medical or funeral expenses:

Medical or funeral expenses due to (decedent’s) injury or death which [have become a charge against, (decedent’s) estate] [were paid by or on behalf of (decedent) by one other than a survivor].

ELEMENTS FOR SURVIVING SPOUSE, CHILD, OR PARENTS OF CHILD:

In determining any damages to be awarded (decedent’s) personal representative for the benefit of .(decedent’s) surviving [spouse] [children] [or] [parents], you shall consider certain additional elements of damage for which there is no exact standard for fixing the compensation to be awarded. Any such award should be fair and just in the light of the evidence regarding the following elements:

d. Damages of surviving spouse:

The [ (wife’s) (husband’s) ] loss of (decedent’s) companionship and protection, and [her] [his] mental pain and suffering as a result of (decedent’s) injury and death [from the date of injury]. In determining the duration of the losses, you may consider the [joint life expectancy of (decedent) and (surviving spouse) ] [life expectancy of (surviving spouse) ] together with the other evidence in the case.

NOTES ON USE FOR 502.2d

1. F.S. 768.18 and 768.21 (1990), applicable to causes of action accruing after October 1, 1990, expand eligible survivor claim: ants in wrongful death actions by surviving parents and children, but are not applicable to claims for medical malpractice as defined by F.S. 766.106(1) (1989).

2. This instruction is intended to allow a jury determination, if warranted by the evidence, that the surviving spouse’s loss will continue beyond the “joint life expectancy” until the survivor’s death, or will end before that actuarial period has elapsed.

e. Damages by surviving child:

The loss by (name all eligible children) of parental companionship, instruction and guidance, and [his] [her] [their] mental pain and suffering as a result of (decedent’s) injury and death [from the date of injury]. In determining the duration of those losses, you may consider the [joint life expectancy of (decedent) and (surviving child) [each of (surviving children) ]] [life expectancy of (surviving children) [each of the surviving children]] together with the other evidence in the case.

f. Damages by surviving parent of child:

The mental pain and suffering of (parents) as a result of the' injury and death of (child) [from the date of injury]. In determining the duration of mental pain and suffering, you may consider the life [expectancy] [expectancies] of (surviving parent(s)) together with the other evidence in the case.

ELEMENTS FOR SURVIVORS, INCLUDING SURVIVING SPOUSE, CHILD, OR PARENTS OF CHILD:

In determining any damages to be awarded (decedent’s) personal represén-tative for the benefit of [each of] (decedent’s) survivor[s]* (name them all), you shall consider the following elements:

*Further instructions may be required if there is a factual question of whether a person is' a “survivor” within the meaning of F.S. 768.18(1).

g. Lost support and services:

The [survivor’s] [survivors’, (name them all) ], loss, by reason of (decedent’s) injury and death, of (decedent’s) support and services [including interest at (legal rate) on any amount awarded for such loss from the date of injury to the date of death]. In determining the duration of any future loss, you may consider the joint life expectancy of the survivor(s) and (decedent) [and the period of minority, ending at age 25, of a healthy minor child].

In evaluating past and future loss of support and services, you shall consider the survivor’s relatipnship to (decedent), the amount of (decedent’s) probable net income available for distribution to the survivor and the replacement value of (decedent’s) services to the survivor(s). [“Support” includes contributions in kind as well as sums of money, “Services” means tasks regularly performed by , (decedent) for a survivor that will be a necessary expense to the survivor because of (decedent’s) death,]* ;

*The bracketed material should be given only when warranted by the evidence and'requested by a party.

NOTES ON USE FOR 502.2g

1. Period of minority. The period of minority for purposes of the wrongful death act is age 25, F.S. 768.18(2). The bracketed reference to the period of minority, in the first paragraph, should not be given if the minor survivor’s dependency will continue beyond that age because the child is not “healthy,” or if the decedent was a minor on whose support or services the claimant survivor would remain dependent beyond that time.

2. Support and services specially defined. The special definitions of these terms bracketed in the second paragraph should be given only when warranted by the evidence and requested by a party.

h. Medical and funeral expenses paid by survivor:

[Medical] [or] [funeral] expenses due to (decedent’s) [injury] [or] [death] paid by any survivor.

601.2 BELIEVABILITY OF WITNESSES

a. General considerations:

Let me speak briefly about witnesses. In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor , of the witness while testifying; the. frankness or lack , of frankness of the witness; the intelligence of the witness; any interest the fitness may have in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters about which the witness testified; and the reasonableness of the. testimony of the witness, considered in the light of all the evidence in the case and in the light of your own experience and common sense.

b. Expert witnesses:

[You have heard opinion testimony [on certain technical subjects] from [a person] [persons] referred to as [an] expert witnesses].] [Some of the testimony before you was in the form of opinions about certain technical subjects.]

You may accept such opinion testimony, reject it, or give it the weight you thinjk it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.

c. Witness talked to lawyer:

[It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited just because the witness talked with a lawyer about [his] [her] testimony.]

NOTES ON USE FOR 601.2

1. Expert witness, See F.S. 90.702 (1985), and Shaw v. Puleo, 159 So.2d 641 (Fla. 1964). The court will select one or the other introductory sentence in keeping with the court’s practice and preference in announcing before the jury, or acceding to counsel’s characterization, that a tendered witness is an “expert.”

2. Common knowledge and everyday experience. Except to the extent indicated in instruction 601.2, the committee recommends that the jury hot be instructed that the jurors may bring to bear their “common knowledge and everyday experience.”

3. Failure to produce witness. The committee recommends that no instruction be given. While it. may be permissible in some circumstances to instruct the jury regarding inferences arising from a party’s failure to produce a witness (compare Weeks v. Atlantic Coast Line Railroad Co., 132 So.2d 315 (Fla. 1st DCA 1961), with Georgia Southern & Florida Railway Co. v. Perry, 326 F.2d 921 (5th Cir. 1964)), the committee believes that generally such inferences are more properly referred to in counsel’s argument.

4. Witness talked to laivyer. This may be given if requested as either a substantive or a curative instruction whenever there is testimony that a witness spoke to or met with an attorney for one of the parties. This instruction is not meant to prohibit or limit argument by counsel of the general considerations set forth in 601.2a.


author: LEWIS, J. LAWSON, J.,

text:
    Christopher L. CARPENTER, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-2125
    Supreme Court of Florida.
    [November 2, 2017]

      Ross A. Keene of Ross Keene Law, P.A., Pensacola, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Virginia Harris, Assistant Attorney General, Tallahassee, Florida, for Respondent
   REVISED OPINION

LEWIS, J.

Christopher L. Carpenter seeks review of the decision of the First District Court of Appeal in State v. Carpenter, 158 So.3d 693 (Fla. 1st DCA 2015), on the basis that it expressly and directly conflicts with the decision of the Second District Court of Appeal in Willis v. State, 148 So.3d 480 (Fla. 2d DCA 2014), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS AND BACKGROUND

On April 2, 2013, Carpenter was charged with one count of traveling to meet a minor to commit an unlawful sex act, one count of soliciting a minor to commit an unlawful sex act, and three counts of transmission of material harmful to a minor. At the time of the incident, law enforcement already had extensive evidence that Carpenter, who was twenty-eight years old, had engaged, through e-mail and text message, in a series of sexually explicit conversations in response to. a Craigslist ad with an undercover officer posing as a fourteen-year-old girl. These conversations ultimately resulted in Carpenter and the undercover officer planning to meet. Upon his arrival at the agreed-upon address, officers arrested Carpenter.

At the time of Carpenter’s arrest, the arresting officers conducted a search incident to arrest and seized his cell phone, separating Carpenter from the cell phone. These officers then transported the cell phone in a special protective covering to a specialty technician who later entered into and searched the phone at a distant location without first obtaining a warrant. Sexually explicit text messages and photos were found on the seized cell phone.

Carpenter filed a motion to suppress the evidence found on his cell phone, relying on Smallwood v. State (Smallwood II), 113 So.3d 724 (Fla. 2013), to support his assertion that the warrantless search of his cell phone violated his Fourth Amendment rights.

At the suppression hearing, Investigator Josh Scioners testified that he performed the forensic examination of Carpenter’s cell phone. Scioners also testified that cell phones present issues with regard to the potential for the contents to be removed or destroyed remotely, thus necessitating turning off the device or using a Faraday bag, which blocks any signals from coming in or out of the device. While Faraday bags do help prevent the cell phone’s data from being remotely erased, these bags are not a guaranteed method of data protection and the cell phone still must be removed from the Faraday bag to be examined, risking that the data be compromised. Investigator Scioners further testified that he relied on Smallwood v. State (Smallwood I), 61 So.3d 448 (Fla. 1st DCA 2011), when he searched Carpenter’s phone. He did, however, note that it would have taken a short time to obtain a warrant and that Carpenter would likely not have had the opportunity to make any calls while he was detained in the patrol car or initially transported to the station.

After the suppression .hearing, the trial court granted Carpenter’s motion to suppress, relying on the holding in Smallwood II that warrantless cell phone searches are unconstitutional/ The First District reversed, relying on Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), to support the position that, because the officers were relying in good faith on the holding in Smallwood I, the appellate precedent at the time of the search, the evidence recovered from Carpenter’s cell phone was not subject to the exclusionary rule because the good-faith exception applied. Carpenter, 158 So.3d at 697. This review follows.

ANALYSIS

In Davis, the United States Supreme Court announced the application of the good-faith exception to the exclusionary rule' in cases where officers have reasonably relied on binding appellate precedent when conducting a search, even when that appellate precedent is later overruled and the search is deemed to be unconstitutional. 564 U.S. at 232, 131 S.Ct. 2419. Davis involved the search of a vehicle passenger-compartment after the police had removed the individuals from the vehicle and secured two arrestees in the back of patrol cars. Id. at 235, 131 S.Ct. 2419. The officers, in conducting the search, were relying on the United States Supreme Court’s holding in New York v. Belton, 453 U.S. 454, 459, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which had been utilized and controlling for almost thirty years, and which held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Davis 564 U.S. at 233, 131 S.Ct. 2419 (quoting Belton, 453 U.S. at 459-60, 101 S.Ct. 2860). For almost thirty years, courts across the United States had uniformly read Belton’s holding as authorizing vehicle searches incident to arrest, regardless of whether the arrestee was secured in a patrol car or within reaching distance of the vehicle. Id.

While Davis's appeal was pending'in the United States Court of Appeals for the Fourth Circuit, the United States Supreme Courfc released its decision in Arizona v. Gant, 566 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 486 (2009), which created a new rulé that limited Belton’s holding. In discussing the new Gant decision, the Supreme Court emphasized in Davis that the exclusionary rule’s purpose is to deter future Fourth Amendment violations: “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237, 131 S.Ct. 2419.

The Supreme Court explained that Davis’s claim turned on the lack of police culpability, and determined that penalizing officers for continuing to follow the then-biriding law, which had been clearly controlling for almost thirty years at the time of the search, would not have the requisite deterrent effect needed to justify exclusion. Id. at 240-41, 131 S.Ct. 2419.

About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment' precedent and .'will conform their conduct to these rules.’ But by'the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on bindirig appellate precedent does no more than “ ‘ac[t] as a reasonable officer would and should act’ ” under the circumstances. The deterrent ef-feet of exclusion in such a case can only be to discourage the officer from (“do[ing] his duty.’” .
That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before," and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Evidence obtained during a search conducted in reasonable reliance' on binding precedent is not subject tó the exclusionary rule.

Id. at 241, 131 S.Ct. 2419 (emphasis and alterations in original) (citations omitted). Thus, the Supreme Court in Davis held that the good-faith exception to the exclusionary rule applied when officers acted with objectively reasonable reliance on binding judicial precedent that had been in place and followed, for almost thirty years.

The State and our dissenting colleagues in this case seek to expand Davis to the significantly different facts here. We reject that expansion.

In Davis, the officers, in conducting the later-invalidated search, were relying on the 1981 holding in Belton, which had been the law from the United States Supreme Court for almost thirty years and had been uniformly applied across the country before Gant was decided in 2009. Conversely, Smallwood I was decided on April 29, 2011, and was under active consideration by this Court when the search of Carpenter’s cell phone was conducted on June 14, 2012. Unlike the law under Belton, which had been in force for almost thirty years when the officers in Davis relied on Belton, the officers in this case were relying on an opinion that was not only not well-established, but on the face'of the Smallwood I opinion, doubt was expressed and the case was certified to this Court for final Florida consideration; Moreover, the Second District’s decision in Willis, holding that the exclusionary, rule applied to a warrantless cell phone search, further fuels the notion that the issue of warrantless, cell .phone searches was a significant and still-deyeloping area of law and thus not one that the officers should have relied upon as being well-established precedent under Davis. See Willis, 148 So.3d at 482.

The holding in Davis was logical, based on the longstanding, thirty-year precedent that had been overruled by- Gant. The State, however, asks us to expand Davis to a case where, the facts present a highly uncertain area of law and the precedent relied upon demonstrates on its face that it was certified to a higher court for resolution. The face of the opinion reflected this status. The State’s attempt fo cherry pick favorable parts of a district court of appeal opinion while ignoring other portions of that same opinion defies logic and expands Davis in a way that we cannot endorse.

Recognizing the rapidly developing nature of technology, the First . District in Smallwood I expressed its concern with the holding,, which would permit warrant-less cell phone searches, and thus certified the question to this Court for final resolution as one of great public importance. 61 So.3d at 461-62. In expressing its unease, however, the First District was clearly satisfying the state-required procedural hurdle of issuing a decision for this Court to exercise jurisdiction to review and decide the issue, rather than issuing a final ruling that was contemplated to be the final Florida determination on the 'matter of war-rantless cell phone searches. As we explained in Floridians for a Level Playing Field v. Floridians Against Expanded Gambling,

In order to have discretionary jurisdiction based on a certified question, there are essentially three prerequisites that must be met. First, it is essential that the district court of appeal pass- upon the question certified by it to be of great public importance .... Second, there must be a district court “decision” to review. See art. V, § 3(b)(4), Fla. Const. For instance, where a district court is unable to reach a clear majority decision on an issue and elects to certify a ques-tion without resolving the merits, we are without jurisdiction to answer such a question under article V, section 3(b)(4) of the Florida Constitution .... Third, ... the question must be in fact “certified” by a majority decision of the district court.

967 So.2d 832, 833 (Fla. 2007) (emphasis added) (footnote omitted);' see also art. V, § 3(b)(4), Fla. Const. (The Florida Supreme Court “[m]ay review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance ....” (emphasis added)). Thus, absent issuing an actual decision, the First District would not have been able to certify the question to this Court for final consideration and determination.

Furthermore, in the Smallwood I opinion, the First District certified the precise question to this Court with regard to the new subject of cell phone searches as one of great public importance, thus placing law enforcement officers on actual notice that the case was subject to further consideration on the face of the opinion. 61 So.3d at 462. Until this Court issued either an order declining review or an opinion deciding the issue, Smallwood I was not final, well-settled, unequivocal, or clearly established. See Davis, 564 U.S. at 251, 131 S.Ct. 2419 (Sotomayor, J., concurring in judgment); see also United States v. Sparks, 711 F.3d 58, 64-66 (1st Cir. 2013) (elaborating on the meaning of “well-settled law”); United States v. Lee, 862 F.Supp.2d 560, 568-69 (E.D. Ky. 2012) (stating that officers must rely on unequivocal and well-settled decisions of binding legal authority); Willis, 148 So.3d at 483 n.2 (“[W]hen a Fourth Amendment issue is rapidly evolving, it is hard to justify an approach to the good-faith exception that allows the first defendant to reach the United States Supreme Court to receive the benefit of the exclusionary rule while other defendants in the legal pipeline do not.”). While the State relies on Pardo to argue the binding nature of the Smallwood I decision, it misapplies Pardo’s underlying premise from a different context that an opinion from a Florida district court of appeal is not final if it is still being reviewed by this Court. See Pardo, 596 So.2d at 666 (“This Court has stated that ‘[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.’ ” (emphasis added)). In fact, the rule announced in Pardo was not designed or intended to describe the parameters of Fourth Amendment search and seizure law, especially for a case pending review in this Court; rather, it was a rule geared toward promoting judicial convenience in Florida’s uniquely constructed judicial system. E.g.,, Willis, 148 So.3d at 483 (“We are not inclined to believe that the rule announced in Pardo should be used in the Fourth Amendment context to determine whether evidence from a warrantless search is admissible.”). Moreover, while an opinion from a district court of appeal may be binding on lower trial courts in Florida under a Pardo theory, this fact does not necessarily justify law enforcement’s reliance on thati decision as “binding” law authorizing a warrantless cell phone search, especially when on actual notice of the pending review in this Court. Indeed, this issue can be likened to that of Schró-dinger’s Cat, where a decision of a district court of appeal may be both binding and not binding, while under review in this Court, until a decision is rendered by this Court ultimately answering the question.

Additionally, Davis made clear that the exclusionary rule is only to be applied if the underlying deterrent effect on law enforcement will be achieved, which was found not to be the case in Davis, 564 U.S. at 237, 131 S.Ct. 2419 (“Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly ... unwarranted.’ ” (quoting United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976))). In Carpenter’s case, however, suppression would further the exclusionary rule’s intended deterrence because law enforcement officers would now, in areas of unsettled law, be reminded to err on the side of caution by obtaining a search warrant instead of relying on nonfinal, unsettled questions of law still under active review in this Court. The “conscientious police work” discussed in Davis requires that officers not engage in warrant-less searches unless clearly authorized by law to do so. Thus, if the law on a particular issue is still developing, it is not reasonable for officers to rely on questionable decisions in pipeline cases to justify war-rantless searches when the nonfinal nature of the decision is noted on the. face of the opinion. Our conclusion is again buttressed by the Second District’s opinion in Willis.

Perhaps the most instructive aspect of Davis, for our purposes, is Justice Sotomayor’s opinion concurring in judgment, which predicted the issue arising in the present case and explicitly stated that the holding in Davis did not answer the question of the good-faith exception’s application to areas of law that were unsettled at the time of the search. Davis, 564 U.S. at 250-51, 131 S.Ct. 2419 (Sotomayor, J., concurring in judgment). This is such a case. Aside from the national variation on the issue of warrantless cell phone searches incident to arrest, the very fact that the case on which the officers relied was under active review in this Court indicates that the law was not yet settled as to the issue of warrantless cell phone searches in Florida at the time of Carpenter’s search for purposes of the Davis analysis. The First District’s certified question to this Court only furthers the notion that the officers in Carpenter’s case should not have relied on Smallwood I as being the final controlling judicial precedent in this area of constitutional law while the case was certified to this Court for final decision. Since the issue decided in Smallwood I was one concerning a rapidly developing area of unsettled law at the time of the officers’ alleged reliance, the State’s reliance on the United States Supreme Court’s holding in Davis to justify the search is misplaced. Furthermore, the dissent attempts to broadly force cases with vastly different facts into Davis’s application, which is precisely what Justice Sotomayor predicted would happen.

Finally, in determining whether exclusion is warranted in this case, we must determine whether the deterrent benefits of exclusion outweigh the heavy societal costs.

If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded-only in the one case definitively resolving the unsettled question.

Davis, 564 U.S. at 250-51, 131 S.Ct. 2419 (Sotomayor, J., concurring in judgment) (quoting United States v. Johnson, 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)); see also Lee, 862 F.Supp.2d at 569 (“If law enforcement could ‘rely oh non-binding authority ...” officers would ‘beg forgiyeness rather than ask permission in ambiguous situations involving ... basic civil rights,”’ (citations omitted)). Thé scenario described above is the exact scenario at issue in Carpenter’s case. Holding that the good-faith exception applies when officers rely on developing law that facially demonstrates the status of further review is a slippery slope which essentially abrogates the exclusionary rule in cases concerning unsettled law. The deterrent benefits of exclusion in Carpenter’s case outweigh the societal costs because exclusion reminds law enforcement officers that warrantless searches are the exception to the rule and that this exception should only be used when specifically authorized by law. The' rule on searches in questionable areas of law is simple and unequivocal: Get a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (.“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’. ” (emphasis added)); see also Riley v. California, — U.S. —, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014) (“Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow “weighed” against the claims of police efficiency.’” (quoting Coolidge, 403 U.S. at 481, 491, 91 S.Ct. 2022)),

Therefore, contrary to the dissent, we hold that, under Davis, the good-faith exception to the exclusionary rule does not apply to Carpenter’s case because the officers were not relying on the type of longstanding, thirty-year appellate precedent at issue in Davis, but rather on a nonfinal, pipeline case still under active review in this Court at the time of the search.

CONCLUSION

Accordingly, we quash the First District’s decision below in Carpenter and h’old that the good-faith exception to the exclusionary rule does not apply to the officers’ warrantless search of Carpenter’s cell phone in this case. Moreover, although Willis reached the correct result, we do not adopt the reasoning used in reaching that result. As such, we disapprove of the opinion in Willis to the extent that it conflicts with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur.

LAWSON, J.,' dissents with an opinion, in which CANADY and POLSTON, JJ., concur,

LAWSON, J.,

dissenting.

I respectfully dissent. Article I, section 12, of the Florida Constitution, as amended in 1982, mirrors the protection against unreasonable searches and seizures found in the Fourth Amendment, but also mandate^ that this protection “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Id. Clearly, we are bound by the United States Supreme Court’s Fourth Amendment jurisprudence, including the majority opinion in Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

In Davis, the United States Supreme Court held that the exclusionary rule is not to be applied “when the police conduct a search in objectively reasonable reliance on binding judicial precedent.” Id. at 239, 241, 131 S.Ct. 2419. The majority mistakenly fails to follow this binding precedent and, instead, applies the analysis in Justice Sotomayor’s separate opinion, in which she expresses her disagreement with the rule announced by the six-person Davis majority but explains that she would nevertheless reach the same result in Davis, given the facts of that case. By “facts,” here, I mean the state of the law at issue in, Davis. In other words, Justice Sotomayor would have excluded the evidence in that case if the law relied upon by police was merely “binding precedent,” but agreed to application of the “good faith exception” in Davis because the law in question had also become well-settled. See id. at 250, 131 S.Ct. 2419 (Sotomayor, J., concurring in judgment). That is the analysis of our majority here. However, we are bound to follow Davis, which properly fashioned a different rule—one grounded in the Davis majority’s clear understanding of the purpose and limits of the exclusionary rule, as well as the interests at stake.

As explained in Davis:

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Amendment says nothing about suppressing- evidence obtained in violation of this, command, That rule— the exclusionary rtile—is a prudential doctrine, created by this Court to compel respect for the constitutional, guaranty. Exclusion is not a personal constitutional right, nor is it designed to redress the injury occasioned by an unconstitutional search. The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. Our cases have thus limited the rule’s operation to situations in which this purpose is thought most efficaciously served. Where suppression fails to yield appreciable deterrence, exclusion is clearly unwarranted.

Id. at 236-37, 131 S.Ct. 2419 (internal citations, quotation marks, and quptations omitted). The Davis majority further explained that, although “[r]eal deterrent value is a necessary condition for exclusion, ... it is not a sufficient one.” Id. at 237, 131 S.Ct. 2419 (internal quotation omitted). This is. the critical juncture at which our majority, like Justice Sotoma-yor, diverges from the opinion of the Court in Davis in its philosophical view-as to how the exclusionary rule should be applied. Both would prefer a rule grounded solely in. deterrence of potential Fourth Amendment violations. But, as explained in Davis;

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

Id. (internal citations and quotation marks omitted).

Factoring in the reality of these societal costs, the United States Supreme Court’s focus has shifted from the deterrent effect of exclusion to “the flagrancy of the police misconduct at issue.” Id. at 238, 131 S.Ct. 2419 (internal quotation omitted). Given that focus, it is easy to see why the United States Supreme Court chose the rule that it did in this context over the rule that Justice Sotomayor and our majority prefer: There is simply no way that reliance on binding legal precedent—whether well-settled or not—can be cast as police misconduct, much less “flagrant” police misconduct.

The officer in this case relied upon case law that bound every trial court in Florida. The fact that the opinion had been issued by an intermediate appellate court, or that the appellate court had certified the question to our Court, does not change the relevant “facts”: (1) at the time of the search in this case, only one Florida appellate court had addressed the issue; (2) this sole appellate opinion held that no warrant was needed to search the contents of a cell phone lawfully seized incident to a valid arrest; and (3) this law was binding precedent throughout the State of Florida. Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (holding that decisions of a district court of appeal constitute binding appellate precedent and “represent the law of Florida unless and until they are overruled by this Court” (internal quotation omitted)).

Our majority’s attempted explanation of the Davis majority opinion as also justified based upon the “well-settled” understanding of the “search incident to arrest” rule announced in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), is simply not plausible. Although Davis recognized that Belton was “[fjor years ... widely understood to have set down a simple, brightline rale,” Davis, 564 U.S. at 233, 131 S.Ct. 2419, the Davis majority pointed out that “[n]ot every court ... agreed with this reading of Belton.” Id. at 234, 131 S.Ct. 2419. However, the only contrary case cited by the Davis majority, State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), aff'd, Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), was decided approximately three months after Mr. Davis’s arrest “[o]n an April evening in 2007 ... in Greenville, Alabama.” Davis, 564 U.S. at 234-235, 131 S.Ct. 2419. Clearly, the Davis majority could have framed the issue as preferred by Justice Sotomayor with the same result.

Instead, the Davis majority analyzed the issue based upon controlling precedent from the Eleventh Circuit Court of Appeals, which was binding in the Middle District of Alabama, where and when the search occurred. Id. at 235, 239-40, 131 S.Ct. 2419. The Court ultimately concluded that because police conducted the search in reliance upon “binding judicial precedent” in their federal district, the “absence of police culpability dooms Davis’s claim [that the exclusionary rule should apply].” Id. at 239-40, 131 S.Ct. 2419. Were we to apply this same analysis here, we would disapprove the Second District’s opinion and approve the First District’s opinion—and the evidence in this case would not be suppressed.

Finally, it is worth noting that our majority’s opinion is antithetical to a significant proposition underlying the good-faith exception, which is also addressed by the Davis majority: the exclusionary rule should not be used to penalize an officer for judicial errors. Id. at 241, 131 S.Ct. 2419. This is not a new or novel idea, but the very “rationale behind” the good-faith exception, beginning with the seminal United States Supreme Court case addressing the exception, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. McGill, 125 So.3d 343, 352 (Fla. 5th DCA 2013) (“The rationale behind the good faith exception is that the exclusionary rule ‘is designed to deter police misconduct rather than to punish the errors of judges and magistrates.’ ” (quoting Leon, 468 U.S. at 916, 104 S.Ct. 3405)). It would defy logic to suggest that a rule designed to allow law enforcement to rely upon the judgment of a single magistrate would have the same law enforcement officer question a rule of law announced in precedent from the appellate court binding in his or her jurisdiction. Cf. State v. Watt, 946 So.2d 108, 110 (Fla. 5th DCA 2007) (“In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant.”).

In contrast to this Court’s novel approach, the majority in Davis would encourage law enforcement officers to stay abreast of the law in their jurisdictions and govern themselves based upon the pronouncements in binding appellate precedent:

About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn what is required of them under Fourth Amendment precedent and 'will conform their conduct to these rules. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than act as a reasonable officer would and should act under the circumstances. The deterrent effect of exclusion in such a case can only be to discourage the officer from doing his duty.
That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion should not be applied to deter objectively reasonable law enforcement activity. Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.

Davis, 564 U.S. at 241, 131 S.Ct. 2419 (internal citation's and quotation marks omitted).

We should apply Davis, as our Constitution requires, and hold that because the officers in this case acted in good-faith reliance on binding appellate precedent, the sexually explicit messages and images revealed during their search of Mr. Carpenter’s cell phone are not subject to the exclusionary rule. Therefore, I dissent.

CANADY and POLSTON, JJ., concur.

      . Willis also involved a warrantless cell phone search conducted after" Smallwood I but before Smallwood II. The Second District found that the warrantless search at issue was permitted at the time because Smallwood I was a decision then binding in Florida under Pardo v. State, 596 So.2d 665 (Fla. 1992). Willis, 148 So.3d at 482.
      The Second District nevertheless noted that the case law with regard to what constitutes ‘‘binding appellate precedent” permitting ‘‘objectively reasonable reliance” was still unsettled. Id.
      The rule in Pardo was created to establish consistency within Florida law in light of our unique system in which the intermediate appellate courts are intended to. be the normal final courts of review .... But an opinion from a single district court is not binding on another district court in Florida. We are not inclined to believe that the rule announced in Pardo should be used in the Fourth’ Amendment context to determine whether evidence from' a warrantless search is admissible.
      Id. at 482-83 (citations omitted). The Second District expressed its doubts that the rule announced in Pardo was intended to establish that “one recent decision from another Florida district court of appeal on such a controversial issue [was sufficient] to create ‘binding precedent,’ at least in qther districts, for purposes of the good-faith exception as announced in Davis." Id. at 483. Thus, the Second District in Willis found that the good-faith exception to the exclusionary rule did not apply. Id.

      . In fact, a cursory search of Westlaw reveals at least 3,086 cases referencing Belton from the time of its release until the release of Gant.

      . "The commentary to the 1982 amendment states that the amendment was necessary to modify the exclusionary rule [in Florida] and to allow adherence by the Florida courts to the good faith exception adopted by the federal courts,” Crain v. State, 914 So.2d 1015, 1022-23 (Fla. 5th DCA 2005) (en banc).


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: S.A.H.
    CASE NO.: SC17-1917
    Supreme Court of Florida.
    NOVEMBER 2, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and S.A.H. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of five years from October 31, 2014.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by. complying with the rehabilitation contract with that organization executed .on October 31, 2014, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc,; practice AA/NA principles in all of her affairs and carry the AA/NA message to other individuals with a substance use disorder;

(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;

(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Tnc.; and

(g) submit, quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) and (e) above.

3. The Florida Bar- shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1—3.2(b) of the Rules Regulating The Florida Bar, and-the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for, any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law,

6. If the applicant’s license is surrendered of terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full' compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe- the conditions of the probation or a finding of probable cause as to conduct of the applicant committed . during the period of probation may. terminate the probation and subject the. applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or'8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials .in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: A.G.
    CASE NO.: SC17-1916
    Supreme Court of Florida.
    NOVEMBER 2, 2017
   Upon consideration of the Report.' and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and A.G.'shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation,' the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by' Florida Lawyers Assistance, Inc.; '
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary’ period by complying with the rehabilitation contract with that organization executed on January 26, 2015, and'by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcohoi-ics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance,' Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and
(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1—3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this. Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: I.A.C.
    CASE NO.: SC17-1920
    Supreme Court of Florida.
    NOVEMBER 2, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and I.A.C. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the applicant shall:

(a) continue to consult with Dr. Lino Fernandez, or other licensed mental health provider, at least, monthly or more frequently as his mental health provider deems necessary;
(b) follow promptly, diligently and completely all instructions by his mental health provider including taking of any medication in the recommended manner as may be prescribed by his mental health provider;
(c) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the applicant’s continuing ability to engage in the active practice of law;
(d) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and
(e) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (e), and (d) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule . l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

6. A failure,to observ.e. the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the. applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order, of suspension shall.-remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

7. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related,to the applicant’s practice .of law.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable, the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    Mark A. TWILEGAR, Appellant, v. STATE of Florida, Appellee.
    No. SC17-839
    Supreme Court of Florida.
    November 2, 2017

      Neal Dupree, Capital Collateral Regional Counsel, Suzanne Myers Keffer, Chief Assistant, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A. Free-land, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Mark A. Twilegar, a prisoner under sentence of death, appeals the circuit court’s order denying his successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851 seeking relief from his death sentence 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), cert. denied. — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). We have jurisdiction. See art, V, § 3(b)(1), Fla. Const.

As the circuit court correctly recognized, the Hurst decisions do not apply to defendants like Twilegar who waived a penalty phase jury. See Mullens v. State, 197 So.3d 16, 38-40 (Fla. 2016), cert. denied. — U.S. —, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017); see also Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016). Although Twilegar urges this Court to revisit, in light of the Hurst decisions, its prior holding in Twilegar’s direct appeal that his waiver was knowing, intelligent, and voluntary, see Twilegar v. State, 42 So.3d 177, 204 (Fla. 2010), cert. denied, 562 U.S. 1225, 131 S.Ct. 1476, 179 L.Ed.2d 315 (2011), that argument is without merit. See Mullens, 197 So.3d at 39-40 (explaining that a defendant “cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence”). Accordingly, we affirm the circuit court’s denial.

It is so ordered.

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


text:
    DISTRICT COURTS OF APPEAL FIRST DISTRICT
    Adams v. State
    1D17-1114
    07/12/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Arline v. State
    1D16-3641
    09/24/2017
   Aff.

Cir. Ct. (Duval)


text:
    Arnett v. State
    1D17-0799
    07/05/2017
   Aff.

Cir. Ct. (Leon)


text:
    Austin v. Austin
    1D17-491
    08/01/2017
   Cert. den.


text:
    B.J.L. v. Department of Children and Families
    1D16-5720
    07/24/2017
   Aff.

Cir. Ct. (Columbia)


text:
    Bacchus v. State
    1D17-1925
    08/23/2017
   Aff.

Cir. Ct. (Duval)


text:
    Bain v. State
    1D16-5088
    07/12/2017
   Dism.

Cir. Ct. (Taylor)


text:
    Baker v. State
    1D17-1468
    07/14/2017
   Aff.

Cir. Ct. (Duval)


text:
    Battista v. State
    1D15-5702
    07/06/2017
   Aff.

Cir. Ct. (Suwan-nee)


text:
    Bell v. State
    1D16-3506
    07/25/2017
   Den.

Cir. Ct. (Escam-bia)


text:
    Bell v. State
    1D16-5398
    07/27/2017
   Aff.

Cir. Ct. (Jackson)


text:
    Bentley v. State
    1D16-3320
    07/28/2017
   Aff.

Cir. Ct. (Duval)


text:
    Biggs v. State
    1D16-2225
    08/29/2017
   Aff.

Cir. Ct. (Santa Rosa)


text:
    Bishop v. State
    1D16-3151
    07/06/2017
   Aff.

Cir. Ct. (Leon)


text:
    Blankenship v. Hill
    1D16-2789
    07/28/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Booker v. State
    1D16-2697
    07/06/2017
   Aff.

Cir. Ct. (Nassau)


text:
    Bouie v. State
    1D17-0379
    09/15/2017
   Aff.

Cir. Ct. (Gadsden)


text:
    Boyer v. State
    1D17-1368
    07/06/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Bradt ex rel. Bradt v. Agency for Persons with Disabilities
    1D16-4427
    07/24/2017
   Aff.

Dept, of Children and Families


text:
    Broadhead v. State
    1D16-4307
    07/28/2017
   Aff.

Cir. Ct. (Columbia)


text:
    Brown v. State
    1D17-0709
    07/06/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Brown v. State
    1D17-2092
    07/12/2017
   Aff.

Cir. Ct. (Duval)


text:
    Brown v. State
    1D17-1829
    07/14/2017
   Aff.

Cir. Ct. (Duval)


text:
    Brown v. State
    1D17-2153
    09/29/2017
   Aff.

Cir. Ct. (Duval)


text:
    Browning v. State
    1D17-0499
    07/14/2017
   Aff.

Cir. Ct. (Duval)


text:
    Burnett v. State
    1D16-5315
    09/26/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    C.D. v. C.P.
    1D16-4059, 1D16-4060
    07/25/2017
   Aff.

Cir. Ct. (Wakul-la) ■


text:
    Campbell v. State
    1D16-2857
    07/25/2017
   Aff.

Cir. Ct. (Leon)


text:
    Capital One, N.A. v. Servicelink Title Company
    1D16-1469
    07/10/2017
   Aff.

Cir. Ct. (Duval)


text:
    Carmona-Rodriguez v. PA Contractors/USIS
    1D16-4035
    07/12/2017
   Aff.

Judge of Comp. Claims


text:
    Carrasquillo v. State
    1D16-4354
    08/01/2017
   Aff.

Cir. Ct. (Santa Rosa)


text:
    Carrion v. American Airlines
    1D17-1199
    07/28/2017
   Aff.

Judge of Comp. Claims


text:
    Carter v. State
    1D17-1501
    07/14/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Carter v. State
    1D16-3825
    07/28/2017
   Aff.

Cir. Ct. (Taylor)


text:
    Cashman v. State
    1D16-5347
    07/14/2017
   Aff.

Dept, of Children and Families


text:
    Challender v. State
    1D17-1846
    07/21/2017
   Aff.

Cir. Ct. (Holmes)


text:
    Chapman v. Florida Commission on Offender Review
    1D16-3757
    07/18/2017
   Aff.

Cir. Ct. (Leon)


text:
    Charles v. Oaks at SJ, LLC
    1D16-5635
    07/14/2017
   Aff.

Cir. Ct. (Duval)


text:
    Chase v. Horace Mann Insurance Company
    1D16-5533
    07/27/2017
   Aff.

Cir. Ct. (Duval)


text:
    Chehab v. Jaz Corporation
    1D17-86
    07/28/2017
   Aff.

Cir. Ct. (Duval)


text:
    Chestnut v. State
    1D17-0342
    09/14/2017
   Aff.

Cir. Ct. (Leon)


text:
    Clark v. State
    1D16-4335
    07/12/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Cobb v. State
    1D16-2486
    07/10/2017
   Aff.

Cir. Ct. (Calhoun)


text:
    Cobb v. State
    1D17-2567
    08/18/2017
   Pet. den,


text:
    Collins v. State
    1D16-4919
    07/12/2017
   Aff,

Cir. Ct (Duval)


text:
    Collins v. State
    1D16-4910
    07/14/2017
   Aff,

Cir, Ct, (Duval)


text:
    Cook v. Palm Beach County School Board
    1D17-0953
    07/25/2017
   Aff.

Judge of Comp, Claims


text:
    Creamer v. State
    1D17-0972
    07/18/2017
   Aff.

Cir, Ct. (Duval)


text:
    Cregg v. State
    1D16-1157
    07/12/2017
   Aff,

Cir. Ct, (Duval)


text:
    Cuevas-Rodriguez v. State
    1D17-1339
    07/14/2017
   Mand.den,


text:
    D. R. v. Florida Department of Children and Families
    1D17-1896
    07/25/2017
   Aff,

Cir. Ct, (Escam-bia)


text:
    D.W. v. State
    1D17-656
    07/25/2017
   Aff,

Cir. Ct, (Leon)


text:
    Davis v. State
    1D16-3104
    07/24/2017
   Aff.

Cir, Ct, .(Ala-chua)


text:
    Delancy v. State
    1D17-1042
    07/14/2017
   Aff.

Cir, Ct. (Duval)


text:
    Derting v. State
    1D16-2141
    10/16/2017
   Aff.

Cir, Ct. (Duval)


text:
    Destin Pointe Owners’ Association, Inc. v. Department of Environmental Protection
    1D16-4573
    07/27/2017
   Aff.

Dept, of Environmental Protection


text:
    DeSloover v. Reemployment Assistance Appeals Commission
    1D17-1260
    07/24/2017
   Aff.

Reemployment Assistance Apps. Com’n


text:
    Douglas v. State
    1D16-4384
    08/01/2017
   Aff.

Cir. Ct. (Leon)


text:
    Dukes v. State
    1D16-4149
    08/01/2017
   Aff.

Cir. Ct. (Leon)


text:
    Edwards v. State
    1D17-1984
    07/14/2017
   Aff.

Cir. Ct, (Escam-bia)


text:
    El-Williams v. State
    1D17-0147
    07/25/2017
   Aff.

Cir. Ct, (Escam-bia)


text:
    Fernandez v. Publix Supermarket #1007
    1D17-0315
    07/28/2017
   Aff.

Judge of Comp, Claims


text:
    Franklin v. State
    1D17-1543
    08/23/2017
   Aff.

Cir. Ct. (Ala-chua)


text:
    Freeman v. CertiStaff Inc.
    1D17-0812
    07/10/2017
   Aff.

Judge of Comp. Claims


text:
    French v. State
    1D15-5940
    08/01/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Garvin v. State
    1D16-1646
    09/14/2017
   Aff.

Cir. Ct. (Duval)


text:
    Geile v. State
    1D16-5466
    09/26/2017
   Proh.den.


text:
    Gibson v. State
    1D17-1290
    07/12/2017
   Aff.

Cir. Ct, (Baker)


text:
    Gibson v. State
    1D17-1293
    07/12/2017
   Aff.

Cir. Ct. (Baker)


text:
    Gilliam v. State
    1D16-2961
    07/06/2017
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Gomez v. State
    1D16-3851
    09/14/2017
   Aff.

Cir. Ct. (Duval)


text:
    Goni v. Department of Corrections
    1D17-2083
    08/31/2017
   Cert.dism.


text:
    Gonzalez v. Southeast Personnel Leasing, Inc.
    1D16-5080
    07/28/2017
   Aff.

Judge of Comp. Claims


text:
    Gooding v. State
    1D16-4401
    07/14/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Griego v. State
    1D17-1868
    08/10/2017
   Aff.

Cir. Ct. (Santa Rosa)


text:
    Griffin v. State
    1D17-2414
    07/18/2017
   Belated App. den.


text:
    Grimace v. Department of Corrections
    1D17-299
    08/24/2017
   Cert.den.


text:
    Gulliver v. State
    1D17-0170
    07/18/2017
   Aff.

Cir. Ct. (Duval)


text:
    Haidy v. Martin County Sheriff’s Office
    1D16-4964
    08/01/2017
   Aff.

Judge of Comp. Claims


text:
    Harless v. Florida Commission on Offender Review
    1D15-5836
    07/21/2017
   Cert.den.


text:
    Harris v. Reemployment Assistance Appeals Commission
    1D16-5487
    07/28/2017
   Aff.

Reemployment Assistance Apps. Com’n


text:
    Harris v. State
    1D17-0674
    07/14/2017
   Aff.

Cir. Ct. (Leon)


text:
    Harvin v. State
    1D17-1409
    07/06/2017
   Aff.

Cir. Ct, (Duval)


text:
    Henderson v. State
    1D16-4337
    07/10/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Hendrix v. State
    1D17-466
    07/07/2017
   Aff.

Cir. Ct. (Escam-bia)


text:
    Hernandez v. State
    1D17-2251
    07/12/2017
   Aff.

Cir. Ct. (Leon)


text:
    Holzinger v. Holzinger
    1D17-1079
    07/12/2017
   Aff.

Cir. Ct. (Santa Rosa)


text:
    Hope v. State
    1D17-1680
    07/18/2017
   Aff.

Cir. Ct, (Levy)-'


text:
    Houston v. State
    1D17-1639
    08/29/2017
   Aff.

Cir. Ct. (Leon)


text:
    I.A.D. v. State
    1D17-1022
    07/28/2017
   Aff.

Cir. Ct, (Okaloo-sa)


text:
    Isaacs v. State
    1D17-1430
    07/18/2017
   Aff.

Cir. Ct. (Levy)


text:
    Ivey v. State
    1D17-1169
    07/14/2017
   Aff.

Cir. Ct. (Leon)