source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte Michael Jerome LEWIS. (In re Michael Jerome Lewis v. State of Alabama).
    1070647.
    Supreme Court of Alabama.
    May 29, 2009.

      Stephen A. Strickland of Jaffe, Strickland, Drennan & Dodd, P.C., Birmingham, for petitioner.
    Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   WOODALL, Justice.

Michael Jerome Lewis was convicted of the capital murder of Timothy John Kaye. The murder was made capital because it was committed “during a kidnapping in the first degree or an attempt thereof.” § 13A-5-40(a)(l), Ala.Code 1975. The jury recommended, by a vote of 10-2, that Lewis be sentenced to death, and the trial court sentenced him to death.

Initially, the Court of Criminal Appeals remanded the case for further action by the trial court regarding Lewis’s claim that the State had violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using its peremptory challenges to remove African-Americans from the jury venire. Lewis v. State, 24 So.3d 480 (Ala.Crim.App.2006). On return to remand, the Court of Criminal Appeals affirmed Lewis’s conviction and sentence of death. Lewis v. State, 24 So.3d 480, 492 (Ala.Crim.App.2006) (opinion on return to remand). Lewis then petitioned this Court for certiorari review.

“[Pjetitions for writs of certiorari will be considered ... [f]rom decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama.” Rule 39(a)(1)(C), Ala. RApp. P. We granted Lewis’s petition for a writ of certiorari solely to consider two such questions. The first question is whether a defendant who has been found guilty of a capital offense beyond a reasonable doubt is entitled to have the jury instructed on “residual doubt” during the penalty phase of the trial. The second question is whether, pursuant to § 13A-5-53, Ala.Code 1975, the Court of Criminal Appeals is required to independently find the existence of any mitigating circumstances not found by the trial court and then to weigh the mitigating circumstances against the aggravating circumstances. We answer both questions in the negative, and, thus, we affirm the judgment of the Court of Criminal Appeals.

I. Residual-Doubt Instruction

Lewis requested the trial court to instruct the jury on “residual doubt” during the penalty phase of his trial. His requested instruction defined “residual doubt” as “whimsical doubt — -the absence of absolute certainty of guilt.” Lewis requested that the jury be instructed that “the mere whimsy of one juror or several [would require the jury to] consider the existence of such a residual doubt as a mitigating circumstance that warrants a sentence of life in prison rather than death.” The trial court refused the requested jury charge.

The Court of Criminal Appeals held that the trial court had correctly denied the requested charge on “residual doubt.” The Court of Criminal Appeals stated that it “has held on numerous occasions that ‘capital defendants have no right to demand jury consideration of “residual doubts” in the sentencing phase.’ ” Lewis, 24 So.3d at 526. The Court of Criminal Appeals’ holdings regarding residual-doubt instructions are correct and have a sound statutory basis.

Lewis concedes that “[cjriminal defendants do not have a federal constitutional right to present residual doubt as to guilt as a mitigating factor during the sentencing phase of a capital murder trial.” Lewis’s brief, at 22. Further, he does not argue that this Court should recognize such a right under the Alabama Constitution of 1901. Instead, he argues that “[r]e-sidual doubt about the defendant’s guilt is a relevant mitigating factor under Alabama’s [statutory] death penalty scheme.” Lewis’s reply brief, at 15. We disagree.

Section 13A-5-51, Ala.Code 1975, without limiting possible mitigating circumstances, statutorily defines a number of mitigating circumstances. Residual doubt as to the defendant’s guilt is not a statutory mitigating circumstance. Instead, as the State argues, “all seven statutory mitigating circumstances [in § 13A-5-51] relate to the defendant or the circumstances of the crime for which the defendant [has been found guilty] and merely reduce the defendant’s culpability for committing that crime.” State’s brief, at 29.

Section 13A-5-52, Ala.Code 1975, allows a capital defendant to offer mitigating circumstances in addition to those enumerated in § 13A-5-51. Specifically, it provides:

“In addition to the mitigating circumstances specified in Section 13A-5-51, mitigating circumstances shall include any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstances which the defendant offers as a basis for a sentence of life imprisonment without parole instead of death.”

It is inarguable, as the Court of Criminal Appeals has pointed out on many occasions, that residual doubt is not a factor about the “defendant’s character or record [or] any of the circumstances of the offense.” See, e.g., Melson v. State, 775 So.2d 857, 899 (Ala.Crim.App.1999), aff'd, 775 So.2d 904 (Ala.2000). Indeed, as the State argues, residual doubt “is nothing more than a juror’s state of mind and bears directly on the defendant’s guilt, [and] is not a fact or situation relating to the defendant’s character or record or which reduces the defendant’s culpability in the commission of a crime for which guilt is a foregone conclusion.” State’s brief, at 25.

According to Lewis, the language of § 13A-5-52 providing that “mitigating circumstances shall include ... any other relevant mitigating circumstance which the defendant offers as a basis for a sentence of life imprisonment without parole instead of death” is broad enough to allow the consideration of residual doubt at the penalty phase of a capital-murder trial. It is not, however, because residual doubt is not a “relevant mitigating circumstance.”

A mitigating circumstance is “[a] fact or situation that does not bear on the question of a defendant’s guilt but is considered ... in imposing punishment and esp. in lessening the severity of a sentence.” Black’s Law Dictionary 260 (8th ed.2004). As previously stated in this opinion, residual doubt bears directly on the question of a defendant’s guilt. In fact, Lewis admits as much: “Residual doubt arises because even though the evidence the juror saw was enough to convict, there is a possibility that ... the defendant is really innocent.” Lewis’s reply brief, at 13. Also, residual doubt is not a “fact or situation.” Instead, it is merely “a lingering uncertainty about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ” Franklin v. Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring). Stated simply, Lewis’s arguments find no support in Alabama’s statutory provisions addressing mitigating circumstances.

Residual doubt is not a mitigating circumstance. Consequently, the Court of Criminal Appeals was correct in holding that the trial court did not err in denying Lewis’s requested jury charge on residual doubt during the penalty phase of Lewis’s capital-murder trial.

II. Independent Finding and Weighing of Mitigating Circumstances by Court of Criminal Appeals

In its sentencing order, the trial court found the existence of two aggravating circumstances and several mitigating circumstances. See § 13A-5-47(d), AIa.Code 1975. The trial court found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Lewis to death. See § 13A-5-47(e), Ala. Code 1975.

On appeal to the Court of Criminal Appeals, Lewis argued that that court had a duty under § 13A-5-53 to independently find mitigating circumstances and then to weigh the mitigating circumstances against the aggravating circumstances. The Court of Criminal Appeals did not err in rejecting this contention.

Alabama’s statutory sentencing and review scheme for capital offenses clearly supports the Court of Criminal Appeals’ holding. In pertinent part, § 13A-5-47(e) provides that, “[i]n deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist.” This language clearly contemplates factual findings “[bjased upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it.” § 13A-5-47(d). Factual determinations are the responsibility of the trial court, and the role of an appellate court is not to determine what the facts are. See, e.g., Ex parte Williford, 931 So.2d 10, 13 (Ala.2005).

Although the factual findings regarding mitigating circumstances are the responsibility of the trial court, they are not beyond review. On appeal, the Court of Criminal Appeals must determine “whether the trial court’s findings concerning the aggravating and mitigating circumstances were supported by the evidence.” § 13A-5-53(a). “If the court determines ... that one or more of the trial court’s findings concerning aggravating and mitigating circumstances were not supported by the evidence, it shall remand the case for new proceedings to the extent necessary to correct the error or errors.” Id. It is only where “the appellate court finds that no error adversely affecting the rights of the defendant was made in the sentence proceedings and that the trial court’s findings concerning aggravating and mitigating circumstances were supported by the evidence [that] it shall proceed to review the propriety of the decision that death was the proper sentence.” Id. These statutory review provisions clearly recognize that the responsibility for finding mitigating circumstances is the trial court’s and just as clearly limit the appellate court’s role to determining whether the trial court’s findings concerning mitigating circumstances are supported by the evidence.

The scope of the appellate review contemplated by § 13A-5-53(a) clearly embraces the review of a trial court’s failure to find a mitigating circumstance. Indeed, as the State points out, defendants “can, and often do (as Lewis did in this case), raise on appeal the trial court’s failure to find and consider mitigating circumstances, and the Court of Criminal Appeals routinely reviews those claims, as it did below.” State’s brief, at 34. In conducting such a review, the Court of Criminal Appeals must determine whether the trial court’s failure to find a circumstance to be mitigating is “supported by the evidence,” as required by § 13A-5-53(a).

In Clark v. State, 896 So.2d 584 (Ala.Crim.App.2000), the Court of Criminal Appeals conducted a proper review of a trial court’s failure to find that proffered evidence constituted a mitigating circumstance, stating, in pertinent part:

“The sentencing order shows that the trial court considered all of the mitigating evidence offered by Clark. The trial court did not limit or restrict Clark in any way as to the evidence he presented or the arguments he made regarding mitigating circumstances. In its sentencing order, the trial court addressed each statutory mitigating circumstance listed in § 13A-5-51, Ala.Code 1975, and it determined that none of those circumstances existed under the evidence presented. Although the trial court did not list and make findings as to the existence or nonexistence of each nonstatu-tory mitigating circumstance offered by Clark, as noted above, such a listing is not required, and the trial court’s not making such findings indicates only that the trial court found the offered evidence not to be mitigating, not that the trial court did not consider this evidence. Clearly, the trial court considered Clark’s proffered evidence of mitigation but concluded that the evidence did not rise to the level of a mitigating circumstance. The trial court’s findings in this regard are supported by the record.
“Because it is clear from a review of the entire record that the trial court understood its duty to consider all the mitigating evidence presented by Clark, that the trial court did in fact consider all such evidence, and that the trial court’s findings are supported by the evidence, we find no error, plain or otherwise, in the trial court’s findings regarding the statutory and nonstatutory mitigating circumstances.”

896 So.2d at 652-53 (emphasis added).

This appropriate review is not the de novo review sought by Lewis. Instead, the Court of Criminal Appeals, presuming that the allegedly mitigating evidence was considered and rejected by the trial court and not ignored, must determine only whether the trial court’s conclusion that the “evidence did not rise to the level of a mitigating circumstance” is “supported by the evidence.” 896 So.2d at 653. This assessment requires an evaluation of the allegedly mitigating evidence in light of all the circumstances of the case. If the trial court’s explicit or implicit rejection of tendered evidence as a mitigating circumstance is appropriate when viewed in this broad perspective, then the trial court’s failure to find a mitigating circumstance is “supported by the evidence.” On the other hand, if the trial court’s rejection is not supported by the evidence, the Court of Criminal Appeals is required to “remand the case for new proceedings to the extent necessary to correct the error or errors.” § 13A-5-53(a).

The Court of Criminal Appeals does not “proceed to review the propriety of the decision that death was the proper sentence” until it has found “that no error adversely affecting the rights of the defendant was made in the sentence proceedings and that the trial court’s findings concerning aggravating and mitigating circumstances were supported by the evidence.” § 13A-5-53(a). When it does proceed to review the propriety of a death sentence, the Court of Criminal Appeals is charged with making certain determinations, including “[wjhether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence.” § 13A — 5—53(b)(2) (emphasis added). The Court of Criminal Appeals has properly construed this clause to mean that it “must reweigh the aggravating and mitigating circumstances as found by the trial court.” Roberts v. State, 735 So.2d 1244, 1269 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999) (emphasis added). Indeed, any other construction would be contrary to the plain meaning of § 13A-5-53.

III. Conclusion

The Court of Criminal Appeals properly held that a defendant who has been found guilty of a capital offense is not entitled to have the jury instructed on residual doubt during the penalty phase of the trial. Also, that court properly construed the scope of its responsibility pursuant to § 13A-5-53(b)(2). Thus, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

LYONS, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., and SHAW, J., recuse themselves.


author: KELLUM, Judge.

text:
    Anthony DOWDLE v. STATE of Alabama.
    CR-07-1912.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      Matthew T. Jackson, Birmingham, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Anthony Dowdle, appeals from the circuit court’s revocation of his probation. The record indicates that on April 5, 2004, Dowdle pleaded guilty to one count of stalking, a violation of § 13A-6-90, Ala.Code 1975. He was sentenced to 10 years’ imprisonment; that sentence was split and he was ordered to serve 18 months, followed by 5 years’ supervised probation.

On May 24, 2006, a warrant was issued for Dowdle’s arrest on a new charge of stalking. Dowdle was ordered to appear before the circuit court to show cause why his probation should not be revoked. However, it was not until March 31, 2008, that Dowdle was taken into custody as a result of the May 24, 2006, warrant. A probation-revocation hearing was held on June 19, 2008. A transcript of that hearing is not contained in the record on appeal. Following that hearing, the circuit court entered an order on the case-action-summary sheet revoking Dowdle’s probation and reinstating Dowdle’s original 10-year sentence. In its order, the circuit court, in pertinent part, stated:

“The defendant having been advised in writing of the alleged violation of the terms of his probation was brought before the court, with counsel present, for a hearing on these allegations.
“A hearing was held, the witnesses were duly sworn and testimony was taken ore tenus before the Court. The evidence relied on by the Court is:
“Testimony by the probation officer and the defendant.
“And the specific condition of violation of probation is as follows:
“Failure to report; failure to pay supervision fees; and a new charge.”

The circuit court crossed out language in its order pertaining to whether the proceedings were taken down by a court reporter, thus indicating that the probation-revocation hearing had not been transcribed by a court reporter.

On June 26, 2008, Dowdle filed a “Motion to Reconsider” and on July 10, 2008, filed an “Amended Motion to Reconsider.” On August 15, 2008, the circuit court entered an order purporting to deny both motions. This Court recently recognized that no rule exists that allows post-judgment motions in probation-revocation proceedings. Wank v. State, 18 So.3d 972 (Ala.Crim.App.2009). Thus, the circuit court had only 30 days from the date it entered its probation-revocation order to modify its judgment. See Wank, supra. Accordingly, the circuit court’s order dated August 15, 2008, is void. Nevertheless, Dowdle filed a timely notice of appeal on July 30, 2008.

On appeal, Dowdle contends that the circuit court’s revocation of his probation should be reversed because, he says, (1) the circuit court erred when it revoked his probation without adequately stating in its invocation order the evidence upon which it relied on to revoke his probation; (2) the circuit court erred by not having the probation-revocation hearing transcribed, thereby making it impossible to determine whether the court abused its discretion in revoking his probation; and (3) the State failed to present sufficient evidence to support the revocation of his probation.

In McCoo v. State, 921 So.2d 450, 462 (Ala.2005), the Alabama Supreme Court relaxed the requirements of a written probation-revocation order and this court’s review of that order:

“[T]he requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412,] 414 [ (11th Cir.1994) ].”

Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, “[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.”

“In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is ‘the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.’ McCoo [v. State], 921 So.2d [450,] 462 [ (Ala.2005) ] (emphasis added).”

Ex parte Garlington, 998 So.2d 458, 458-59 (Ala.2008).

The circuit court’s probation-revocation order in this case lists the witnesses upon whose testimony it relied in revoking Dowdle’s probation and lists the conditions of probation Dowdle violated; however, the court’s order fails to set out the specific evidence it relied upon in reaching its decision to revoke Dowdle’s probation. Although this Court has upheld a probation-revocation order listing the witnesses upon whose testimony the court has relied in revoking probation as sufficient, we have done so only when a transcript of the probation-revocation hearing is available for this Court’s review. See Edwards v. State, 26 So.3d 1263 (Ala.Crim.App.2008).

The record in this case does not contain a transcript of the probation-revocation hearing. Therefore, we are unable to review the transcript to ascertain whether the requisite Rule 27.6(f) statements are presented in the record. See McCoo, supra. Further, we are unable to determine whether the State presented sufficient evidence to support the revocation of Dowdle’s probation. Because the record contains no transcript of the probation-revocation hearing and because we are unable to ascertain from the circuit court’s order the evidence the court relied on in revoking Dowdle’s probation, this court cannot fulfill its duty to review the correctness of the circuit court’s actions. Accordingly, we reverse the circuit court’s judgment and remand this case for that court to set aside the June 19, 2008, probation-revocation order and to conduct a new probation-revocation hearing that is properly recorded and transcribed for this Court’s review. The circuit court should also enter written findings in accordance with Rule 27.6(f), Ala. R.Crim. P., and Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). In the event that Dow-dle is dissatisfied following his new probation-revocation hearing, he should file a new appeal to this Court.

REVERSED AND REMANDED.

WISE, P.J., and WELCH and WINDOM, JJ., concur.

      . The record indicates that counsel for Dow-dle certified that no reporter’s transcript would be filed in the instant case.


text:
    Michael James REEVES v. STATE of Alabama.
    CR-07-1683.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      Stephen J. Townes, Greenville, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Michael James Reeves, entered a guilty plea and was convicted of one count of receiving stolen property in the first degree, a violation of § 13A-8-17, Ala.Code 1975. The court sentenced Reeves to three years’ imprisonment; that sentence was suspended, and Reeves was sentenced to two years’ supervised probation. He was also ordered to pay a $500 fine, a $100 assessment to the crime victims compensation fund, $33,000 in restitution, and all court costs.

The record on appeal indicates the following. Clint Davis, an investigator with the Alabama Department of Agriculture and Industries testified that he had investigated cases of stolen property recovered in Alabama in 2005 following Hurricane Katrina’s devastation of New Orleans and Louisiana. Davis testified that he had received information from investigators in other Alabama counties regarding employees of the Federal Emergency Management Agency transporting stolen property from New Orleans to Alabama. According to Davis, the stolen property consisted of heavy equipment, including automobiles. Davis stated that some of the stolen property was reported to be in Butler County. Davis testified that while he was investigating the reports, he discovered equipment that had been described as equipment stolen from Louisiana on Cody Sorrells’s property and subsequently arrested Sorrells. Davis testified that the equipment he discovered on Sorrells’s property consisted of several automobiles and trucks that had been dismantled. Following his arrest, Sorrells gave Davis the names of others who had received stolen property from Louisiana, including Reeves. Davis located additional stolen property at Reeves’s house, including a 24-foot enclosed cargo trailer, a race-car frame, several race-car tires, a motor, transmissions, a motorcycle, and various aluminum motor parts. Pictures of the items found at Reeves’s house were admitted into evidence at the hearing. Davis testified that he returned to Louisiana to find the owners of the stolen property and identified those owners as Lonzo Dawson, Loren Lablanc, and David Ragas. Davis testified that most of the property was identified by the owners over the telephone.

Davis testified that Ragas had lost a 24-foot enclosed cargo trailer and a 10-foot pop-up type trailer designed to pull behind a motorcycle. Ragas reportedly valued those items to be worth $20,000, and $10,000, respectively. Davis testified that when he found the 24-foot cargo trailer, he observed “a gash that was down through one of the sides of it.” (R. 63.) Davis testified that he estimated the value of the cargo trailer to be $20,000 at that time and that he valued the pop-up trailer to be worth $5,000. Davis explained that he was able to find other stolen property that belonged to Ragas, including car parts, a ladder, a nail gun, and various other tools, but he testified that he did not assign a value to the property. Davis testified that the property “looked good” and noted that some of the property remained in its original packaging.

Davis testified that he identified Dawson as the owner of the race-car frame, assorted motor parts, and motors that he had found at Reeves’s house. According to Davis, the frame, parts, and motors appeared to have no obvious damage. Davis testified that the items looked like they had been cleaned. Davis stated that he and the Department of Agriculture and Industries assigned a collective value of $80,000 to all the items. Davis testified that Dawson subsequently identified additional property discovered at Reeves’s house as belonging to him, including tools, transmission housings, and other assorted automobile parts. Davis did not assign a value to this property. Davis testified that he believed that the property he recovered from Reeves’s house that belonged to Dawson “looked good.”

Davis testified that after the property was recovered from Reeves’s house, the property was transported to Lowery’s Wrecker Service facility. Davis testified that Ragas and Dawson were subsequently taken to Lowery’s by local law enforcement to view the property on two occasions and that on the second occasion Ragas and Dawson noticed that property they had identified on their first trip to view the property was now missing.

Ragas testified that he evacuated from Louisiana to Houston before Hurricane Katrina made landfall and that he returned three weeks later. Ragas testified that the cargo trailer was at his house when he returned after the hurricane. According to Ragas, the left side of the cargo trailer was split approximately two inches apart at that time, but the contents of the cargo trailer appeared to be untouched. Ragas testified that he had stored numerous items in the cargo trailer, including the pop-up trailer, two ladders, a zero-radius push lawnmower, a large black box full of drills and other tools, a table saw, a commercial tile saw, and plumbing tools.

Ragas testified that he had purchased the cargo trailer in 2001 for $5,000; he stated it was in “perfect shape.” Ragas testified that he had purchased the cargo trailer from someone who had used it once and who wanted to “get rid” of it. According to Ragas, the cargo trailer was worth approximately $10,000 to $20,000. Ragas testified that in 2003 he had purchased a pop-up trailer for a motorcycle for $5,000. Ragas testified that he had paid approximately $100 for the ladder and had paid approximately $200 for the nail gun.

Ragas testified that he traveled to Alabama two or three times in an attempt to recover his property and that it cost him approximately $200 in gas each time to drive back and forth from Alabama to Louisiana. Ragas testified that, at the time of the restitution hearing, he had regained possession of the cargo trailer. Ragas testified that two anchors, a hood, and a jack had been removed from the cargo trailer; Ragas estimated those items were worth a combined value of $350. At the time of the restitution hearing, Ragas had not taken the cargo trailer for an estimate to repair the damage. Ragas testified that he had to buy four tires for the cargo trailer at an estimated cost of $120 each. Ragas testified that the tires were in good condition before he evacuated in advance of Hurricane Katrina.

Dawson testified that he was forced to evacuate from his house in New Orleans in August 2005 because of Hurricane Katrina. Dawson testified that he returned a week after the hurricane and secured his garage with padlocks. Dawson stated that a race car and race-car parts were being stored in his garage at the time. Dawson had purchased the race car in 1992. Dawson testified that the race car was worth $80,000 and estimated that $700,000 worth of car parts were stored in his garage at the time. According to Dawson, when he returned after Hurricane Katrina to check on his property, most of the items in the garage were unharmed. Dawson testified that the race car was covered in dirt but otherwise undamaged. Dawson left again and subsequently returned to find his property missing.

Dawson identified items found at Reeves’s house that belonged to him, including the race car which had been stripped and the parts removed. Dawson identified a racing seat, seat cover, wire harness, fuel-pump system, miscellaneous hoses, and two bell housings from pictures taken of items recovered during the investigation. Dawson testified that the bell housings were worth $9,000 each. Dawson further identified his race car. Dawson testified that the race car had been stripped of its parts and that all the paint had been removed from the frame. Dawson testified that he had paid $80,000 for the race-car frame and that one could be purchased brand new unpainted for $70,000.

Dawson testified that he had recovered only the frame of the race car at the time of the restitution hearing and that it was not in the same condition as it was when he left it in his garage in New Orleans. Dawson testified that he had attempted to retrieve his remaining property from Lowery’s but that he was informed that it would cost $6,500 to retrieve his property. Dawson explained that when he i’eturned to Lowery’s to try to retrieve the property a second time, 90% of the property was gone. Dawson testified that he later saw some of the parts being auctioned on a Web site. Dawson estimated that his total loss was $280,000.

On appeal, Reeves contends that the circuit court erred in ordering him to pay restitution because, he argues, the evidence failed to demonstrate that Reeves’s criminal activity, i.e., receiving stolen property, was the proximate cause of the loss or damage to the victims’ property once it was in the State’s control. Reeves maintains that the State failed to safeguard the victims’ property once it was collected and, therefore, that the State’s actions were an “intervening factor and the proximate cause of the victims’ loss.” (Reeves’s brief, at p. 9.)

Section 15-18-65, Ala.Code 1975, requires all “perpetrators of criminal activity or conduct ... to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof.” (Emphasis added.) The term “criminal activities” is defined in § 15-18-66(1), Ala.Code 1975, as “[a]ny offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” “Pecuniary damages” are defined in § 15-18-66(2), Ala.Code 1975, in pertinent part, as follows:

“All special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities; the term shall include, but not be limited to the money or other equivalent of property taken, broken, destroyed, or otherwise used or harmed

“Before a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained by the victim.” Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986). Therefore, under Alabama’s restitution statute, Reeves could be ordered to pay restitution only if one of two conditions existed: (1) his victims suffered any direct or indirect pecuniary losses as a result of the activity for which he has been convicted or, (2) he admitted to other criminal conduct during the proceedings that was the proximate cause of any injuries to the victims. Lamar v. State, 803 So.2d 576 (Ala.Crim.App.2001). The State has the burden of proving that a defendant’s criminal act was the proximate cause of the victim’s injury before a defendant can be held liable for damages. Richardson v. State, 603 So.2d 1132 (Ala.Crim.App.1992).

We can find no Alabama caselaw addressing the issue of intervening causation in the context of a criminal-restitution proceeding — specifically, whether the State’s alleged failure to safeguard the victims’ property was an intervening, superseding cause of the victims’ loss. However, our research revealed cases in Ohio and Utah addressing similar issues.

In State v. Lacey, (Ms. 2006-CA-115, Nov. 7, 2007) (Ohio Ct.App.2007) (not published in N.E.2d), the appellant was convicted of receiving stolen property, namely, firearms; the trial court ordered the appellant to, among other things, pay $1,000 in restitution. On appeal, the appellant argued that the trial court abused its discretion in ordering restitution for the victim’s firearms because the amount of restitution included restitution for the damages to the firearms that occurred while they were in the custody of the State of Ohio pending trial. The Court of Appeals of Ohio affirmed the trial court’s restitution order, holding:

“R.C. 2929.18(A)(1) grants a trial court authority to order restitution by an offender to a victim in an amount commensurate with the victim’s economic loss....
“Appellant argues that he is not liable for the restitution because his actions were superceded by the negligent storage of the firearms and/or the prosecutor’s failure to release the firearms. The question then becomes whether these intervening acts so overcome the defendant’s initial criminal behavior that the appellant’s liability is superceded.
“ ‘An intervening cause is one which comes into active operation in producing the result after the negligence of the defendant.’ Prosser, Law of Torts (4 Ed.1971), at 271. Therefore, in order to excuse the defendant, an intervening cause must be either a superseding or responsible cause. It is a superseding cause, when it so entirely supersedes the operation of the defendant’s criminal conduct that it alone, without the criminal conduct contributing thereto in the slightest degree, produces the damage. See, 39 Ohio Jurisprudence 2d 543, Negligence, Section 38.’
“Furthermore, whether an intervening act breaks the causal connection between the criminal conduct or negligence and injury sustained, depends upon whether the intervening cause was reasonably foreseeable by the one who was guilty of the criminal conduct or negligence. See R.H. Ma[c]y & Co., Inc. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108, 554 N.E.2d 1313; Mor[n]er v. Giul[i]an[o] (2006) 167 Ohio App.3d 785, 2006-Ohio-2943, 857 N.E.2d 602. Therefore, we conclude that, where a person engages in criminal behavior and that behavior is followed by the negligence of a third person which directly results in damages, the defendant’s earlier criminal conduct may be found to be the proximate cause of the damages if the intervening act could have been reasonably foreseen. Only intervening acts which are not reasonably foreseeable can negate liability.
“In this case, it was the [defendant’s] actions of receiving the stolen property and selling it for a substantial financial gain, which led to the firearms being held as evidence. It is reasonably foreseeable and general practice that evidence is held pending trial. Furthermore, once property is illegally removed from the custody of its owner it is reasonably foreseeable that the property may suffer damage.”

As in Lacey, the effect of the state’s purported negligence on the amount of restitution owed was also at issue in State v. McBride, 940 P.2d 539 (Utah Ct.App.1997). In McBride, the defendant was stopped by the police while driving a stolen vehicle. After arresting McBride, the police erroneously transcribed the identification number of the vehicle. As a result, the police were unable to contact Martinez, the owner of the vehicle, and an impound lot subsequently sold the vehicle. Following a hearing, the trial court ordered McBride to pay restitution to Martinez. On appeal, McBride argued that the intervening and superseding negligence of the police in failing to contact the owner of the vehicle relieved him of any liability for any loss resulting from the sale of the impounded vehicle. The Utah court, affirming the trial court’s restitution order, held:

Utah Code Ann. § 76-3-201(l)(d) (Supp.1996) defines ‘restitution’ as the ‘full, partial, or nominal payment for pecuniary damages to a victim.’ ... ‘Pecuniary damages’ are defined, in relevant part, as ‘all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities and includes the money equivalent of property taken, destroyed, broken, or otherwise harmed.’
“... [McBride] argues that the intervening negligence of the police supersedes his liability under a civil conversion theory of recovery. Utah law provides that ‘ “a more recent negligent act may break the chain of causation and relieve the liability of a prior negligent actor under the proper circumstances.” ’ Steffensen v. Smith’s Management Corp., 820 P.2d 482, 488 (Utah Ct.App.1991) (quoting Godesky v. Provo City Corp., 690 P.2d 541, 544 (Utah 1984)), aff'd, 862 P.2d 1342 (Utah 1993). ‘However, if the subsequent negligent act is foreseeable to the prior actor, both acts are concurring causes and the prior actor is not absolved of liability. The issue is whether the subsequent intervening conduct, either criminal or negligent, was reasonably foreseeable.’ Id. (citation omitted). “‘A superseding cause, sufficient to become the proximate cause of the final result and relieve defendant of liability for his original negligence, arises only when an intervening force was unforeseeable and may be described with the benefit of hindsight, as extraordinary.” ’ Id. (quoting Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 789 P.2d 1040, 1047 (1990) (en banc)).
“We believe a modified ‘but for’ test is appropriate in the context of a restitution hearing. ... Aided by the benefit of hindsight, we cannot say that the negligence of the police in transcribing the vehicle identification number was so unforeseeable as to supersede the fault of [McBride] in causing Martinez’s loss. In addition, it is clear that but for [McBride’s] criminal act, which resulted in the impoundment that created the opportunity for the transcription error, Martinez’s loss would not have occurred. Accordingly, [McBride’s] intervening and superseding negligence argument fails.”

McBride, 940 P.2d at 542-44.

Although not in the context of criminal restitution proceedings, as was the case in Lacey and McBride, the Alabama Supreme Court has addressed intervening and superseding causation in civil proceedings. In Alabama Power Co. v. Moore, 899 So.2d 975 (Ala.2004), our Supreme Court explained:

“ ‘ “The proximate cause of an injury is that cause which, in the natural and probable sequence of events, and without the intervention or coming in of some new or independent cause, produces the injury, and without which the injury would not have occurred.” ’ Hicks v. Vulcan Eng’g Co., 749 So.2d 417, 424 (Ala.1999)(quoting trial court’s jury charge). ‘[I]f a new, independent act breaks the chain of causation, it supersedes the original act, which thus is no longer the proximate cause of the injury.’ Riojas v. Grant County Pub. Util. Dist., 117 Wash.App. 694, 697, 72 P.3d 1093, 1095 (2003). ‘[AJn [act] is superseding only if it is unforeseeable. A foreseeable intervening [act] does not break the causal relationship betiveen the defendants’ actions and the plaintiffs’ injuries.’ Kelly v. M. Trigg Enters., Inc., 605 So.2d 1185, 1190 (Ala.1992).”

899 So.2d at 979 (some emphasis added).

Our Supreme Court’s analysis of intervening causation is applicable in the context of a criminal restitution proceeding to determine whether the State’s failure to safeguard the victims’ property superseded Reeves’s liability for the victims’ losses. A similar analysis was used by the appellate courts in Lacey and McBride, both of which we find to be persuasive. Therefore, we conclude that where a person engages in criminal activities and that behavior is followed by the negligence of a third party that directly results in damage, the perpetrator’s criminal conduct may be found to be the proximate cause of the damage if the intervening act could have been reasonably foreseen. Our holding is in keeping with Alabama’s restitution statute, which allows compensation for any pecuniary loss, damage, or injury that is a direct or indirect result of a perpetrator’s criminal activity or conduct. § 15-18-65, Ala.Code 1975.

In the instant case, the evidence presented to the circuit court established that the victims’ property was found at Reeves’s house and that some of the property was not in the same condition as it had been when it was last seen by the victims before the theft. Further, the evidence indicates that the victims’ losses were not all attributable to the loss of property while under the State’s control and while in the possession of Lowery’s. Ragas testified that the cargo trailer was returned to him missing parts that included two anchors, a hood, and a jack. Dawson, who had recovered only the frame of the race car at the time of the restitution hearing, testified that his race car had been stripped of its parts and that the frame had been stripped of paint.

The losses sustained by the victims and the damage to their respective property were not so unforeseeable as to supersede the fault of Reeves in causing the victims’ losses. The State presented evidence from which the circuit court could conclude that the victims suffered both direct and indirect pecuniary losses as a result of Reeves’s criminal activity. “At a restitution hearing, the trial judge need be convinced only by a preponderance of [the] evidence.” Hagler v. State, 625 So.2d 1190, 1191 (Ala.Crim.App.1993). Given the evidence presented at the restitution hearing, we cannot say that erred in ordering Reeves to pay restitution.

AFFIRMED.

WISE, P.J., and WELCH and WINDOM, JJ., concur.


text:
    Dracye WARE v. STATE of Alabama.
    CR-07-0754.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      John C. Craft, Montgomery, for appellant.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Dracye Ware, appeals from the circuit court’s revocation of his probation. The record indicates that on January 28, 2003, Ware pleaded guilty to robbery in the first degree. He was sentenced to 20 years’ imprisonment; that sentence was split, and he was ordered to serve 4 years’ imprisonment and followed by one year of supervised probation. The court ordered Ware to pay $50 to the crime victims compensation fund, a $250 fine, and $715 in restitution.

While on probation, Ware was arrested for the unlawful breaking and entering of a vehicle. On September 20, 2007, the State moved to revoke Ware’s probation on the ground that Ware had violated certain conditions of his probation. After conducting a probation-revocation hearing on October 1, 2007, the circuit court revoked Ware’s probation. The following entry appears on the case-action summary:

“After hearing, defendant has violated his probation by breaking into a vehicle on 5-28-07 at or near 3rd Avenue and Center Street. Defendant’s sentence of sixteen (16) years is hereby placed in effect. Defendant to receive credit for jail time pending his probation revocation hearing.”

This appeal followed.

On appeal, Ware contends that the circuit court’s order revoking his probation should be reversed because, he says, it is unclear from the record whether a hearing was actually held before his probation was revoked or whether he waived his right to a hearing and admitted to violating the terms of his probation. Ware further argues that the circuit court’s order revoking his probation was deficient because it did not contain a statement of the evidence relied on and the reasons for revoking his probation as required by Rule 27.6(f), Ala. R.Crim. P.

Although the record on appeal indicates that the circuit court conducted a probation-revocation hearing, the record on appeal does not include a transcript of the probation-revocation hearing. We note that after the instant case had been submitted to this Court for decision, we issued an order to the circuit court to clarify the meaning of its October 1, 2007, order and, if the probation-revocation hearing was indeed transcribed, to supplement the record with a copy of a transcript of that hearing. In response to this Court’s order, the circuit court indicated that Ware’s probation-revocation hearing was not transcribed by a court reporter.

In Williams v. State, 982 So.2d 615 (Ala.Crim.App.2007), this Court addressed a similar situation involving the lack of a transcript in the record on appeal. In Williams, the defendant argued on appeal that “ ‘the lack of a colloquy and/or transcript indicating that [he] knowingly “confessed” the violation of the terms of his probation demands a remand for further findings.’ ” 982 So.2d at 616 (quoting Williams’s brief). The case-action summary in Williams indicated that the circuit court had conducted a probation-revocation hearing before revoking the defendant’s probation. However, the record on appeal did not include a transcript of the revocation hearing. The defendant moved to supplement the record on appeal with a transcript of the revocation hearing. The circuit court denied the motion to supplement because no transcript of the probation-revocation hearing existed. This court reversed the circuit court’s revocation order, stating:

“In this case, the revocation hearing was not transcribed. Also, the written revocation order does not include any facts regarding the voluntariness of the [defendant's admission. Therefore, we cannot properly review the [defendant’s claim regarding the voluntariness of his admission. Accordingly, we must reverse the circuit court’s judgment revoking the [defendant’s probation and remand this case for the circuit court to conduct a new revocation hearing.”

Williams v. State, 982 So.2d at 616-17.

In the instant case, the case-aetion-sum-mary sheet indicates that, contrary to Ware’s assertion on appeal, the circuit court conducted a probation-revocation hearing; however, that hearing was not transcribed by a court reporter. The circuit court’s October 1, 2007, order gives no indication whether Ware admitted at the hearing to violating the terms of his probation. Moreover, the circuit court’s order does not state the evidence relied on by the court to revoke Ware’s probation as required under Rule 27.6(f), Ala. R.Crim. P.

In McCoo v. State, 921 So.2d 450, 462 (Ala.2005), the Alabama Supreme Court held that this court could

“examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412, 414 (11th Cir.1994) ].”

The Court, however, noted that its holding did not “diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.” McCoo, 921 So.2d at 462. While this court is permitted to examine the record to determine whether a circuit court’s findings, either oral or transcribed, create a sufficient record to advise of the reasons for the revocation and the evidence relied on, see McCoo, supra, we are unable to do so in this case because no transcript of the probation-revocation hearing exists for this court to review.

Given that no transcript exists of the probation-revocation hearing and that we are unable to ascertain from the circuit court’s order the evidence the court relied on in revoking Ware’s probation, this Court cannot fulfill its duty to review the correctness of the circuit court’s actions. Accordingly, we reverse the circuit court’s judgment and remand this case for that court to set aside the October 1, 2007, probation-revocation order and to conduct a new probation-revocation hearing that is properly recorded and transcribed for this Court’s review. The circuit court should also enter written findings in accordance with Rule 27.6(f), Ala. R.Crim. P., and Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). In the event Ware is dissatisfied following his new probation-revocation hearing, he should file a new appeal to this Court.

REVERSED AND REMANDED.

WISE, P.J., and WELCH and WTNDOM, JJ., concur.


author: GERBER, J.

text:
    David C. SCHERER, DPM, David C. Scherer, DPM, P.A. and Podiatry Management, Inc., Petitioners, v. Patricia Ann RIGSBY, Respondent.
    No. 4D08-2484.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Richard L. Freedman of Elkins & Freedman, Fort Lauderdale, for petitioners.
    Jonathan D. Wald of Wald, Gonzalez & Graff, P.A., Miami, for respondent.
   GERBER, J.

Defendants below appeal the trial court’s order declining to hear their third motion for summary judgment. Each of the motions alleged, among other things, that the plaintiff in this medical malpractice action did not comply with the presuit notice requirements of section 766.106(2), Florida Statutes, and Florida Rule of Civil Procedure 1.650. The defendants alleged that their third motion for summary judgment raised new arguments with updated affidavits and case law.

Where chapter 766 presuit requirements are at issue, a party may seek certiorari review. See Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 662 (Fla. 4th DCA 2008) (“Certiorari may lie to review an order denying a motion to dismiss for failure to comply with presuit investigation requirements in a medical malpractice action.”). An appellate court may grant certiorari where the trial court’s action departs from the essential requirements of the law from which the petitioner will suffer irreparable harm which cannot be cured on plenary appeal. Id. at 663. Treating the defendants’ appeal as a petition for writ of certiorari, we find that the trial court did not depart from the essential requirements of the law in declining to hear the defendants’ third motion for summary judgment.

Petition denied.

POLEN and FARMER, JJ., concur.


author: POLEN, J. POLEN, J.

text:
    Courtney BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4013.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Order Amending Opinion on Grant of Rehearing in Part Oct. 7, 2009.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Courtney Brown (“Brown”) timely appeals his conviction and sentence for aggravated neglect, a lesser included offense. This Court has jurisdiction. Fla. R.App. P. 9.140(b)(1)(A) (2007).

Brown was charged by information with one count of aggravated manslaughter of an elderly person and one count of aggravated neglect of an elderly person (his mother). After a jury trial, Brown was acquitted of aggravated manslaughter, but convicted of aggravated neglect. At sentencing, the court assessed Brown 120 victim injury points for the death of his mother and sentenced him to ten years in prison with credit for time served.

On appeal, Brown raises three separate claims, but we find only his argument as to the victim injury points to be persuasive. We affirm as to the other claims without further discussion.

The standard of review of the legality of the court’s assessment of victim injury points is de novo. Jupiter v. State, 833 So.2d 169, 170 (Fla. 1st DCA 2002).

Rule 3.704(d)(9) of the Florida Rules of Criminal Procedure provides:

“Victim injury” is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.... Victim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims. However, victim injury must not be scored for an offense for which the offender has not been convicted.

(Emphasis added.) Under this rule, “victim injury points for ‘death’ cannot be scored where a defendant is acquitted of all murder charges.” Lane v. State, 981 So.2d 596, 598 (Fla. 1st DCA 2008); see also, e.g., Harris v. State, 658 So.2d 1226 (Fla. 4th DCA 1995); Key v. State, 779 So.2d 525 (Fla. 2d DCA 2001). Thus, Brown should not have been assessed victim injury points for the death of his mother as he was acquitted of aggravated manslaughter.

Brown’s conviction still stands. But we remand this case with an instruction for the trial court to recalculate Brown’s scoresheet with the victim injury points eliminated and to resentence him accordingly.

STEVENSON and DAMOORGIAN, JJ., concur.

On Motions for Rehearing

POLEN, J.

Appellee, the State of Florida, and Appellant, Courtney Brown, have both filed motions for rehearing. On July 1, 2009, this court issued an opinion ordering the trial court to recalculate Brown’s sentencing scoresheet with the victim injury points eliminated and to resentence Brown accordingly. See Brown v. State, No. 4D07-4013, 2009 WL 1872339 (Fla. 4th DCA 2009).

The State argues that the victim injury points should not be eliminated and that this court may have overlooked the fact that the trial court could still assess some victim injury points for degrees of victim injury other than death. Additionally, the state seeks a rehearing regarding the court’s conclusion that Brown could not be assessed 120 points for the victim’s death because he was acquitted of the manslaughter charge.

Brown, pro se, argues that this court’s decision is not in accordance with the decisions of Thomas v. State, 885 So.2d 968 (Fla. 4th DCA 2004), Willis v. State, 669 So.2d 1090 (Fla. 3d DCA 1996), nor Fed. R.Evid. 403.

After careful review of both motions, we deny Brown’s motion for rehearing and grant the State’s motion for rehearing in part. We substitute the last sentence in our opinion with the following:

But we remand this case with an instruction for the trial court to recalculate Brown’s scoresheet and to resen-tence him accordingly.

STEVENSON and DAMOORGIAN, JJ., concur.


author: PER CURIAM.

text:
    Michael ANDERSON, Appellant, v. DEPARTMENT OF REVENUE o/b/o Belva BAINES, Appellee.
    No. 4D08-3390.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Michael Anderson, Naples, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).

STEVENSON, MAY and LEVINE, JJ„ concur.


author: FARMER, J.

text:
    Scott LEWIS, Carol Lewis, and Scott Lewis Gardening & Trimming, Inc., Appellants, v. NICAL OF PALM BEACH, INC., and Amy Habie, Appellees.
    No. 4D07-3721.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.

      Scott Lewis and Carol Lewis, West Palm Beach, pro se.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Jack Scarola of Searcy Denney Scarola Barnhart & Shipley P.A., West Palm Beach, for appellant Scott Lewis Gardening & Trimming.
    Elliot B. Kula, Alan T. Dimond, Elliot H. Scherker and Daniel M. Samson of Green-berg Traurig, P.A., Miami, and Mark F. Bideau of Greenberg Traurig, P.A., West Palm Beach, for appellees.
   FARMER, J.

In this long running breach of contract dispute with frequent appearances in our court, we are asked to add the time value of paralegal work to an award of attorney’s fees and to require prejudgment interest on several fee awards in different contempt proceedings. We are loathe to add to the ocean of words generated by this protracted dispute, so will simply state our results with but a brief comment.

The attorneys for the Scott Lewis side claim the value of paralegal labor in preparing for hearings and related proceedings. The paralegals in question are not regular employees or staff of their able counsel but instead none other than Scott Lewis and Carol Lewis themselves. The trial court denied this request.

We affirm that decision. The inherent possibility for mischief in deeming the client a paralegal of the representing attorney is apparent enough to cast a dense shadow over even the mere theoretical prospect of the argument they make. In this instance we note the utter absence of any showing that the labor of the client was required by the lawyer or had the effect of reducing the fee claimed by the lawyer.

We reverse the trial court’s denial of prejudgment interest on the attorney’s fees awarded. On remand, the court shall calculate the amount of prejudgment interest due from the date of each discrete decision of entitlement to fees for a contempt proceeding.

POLEN and STEVENSON, JJ., concur.

        .See Nical of Palm Beach Inc. v. Lewis, 815 So.2d 647, 652 (Fla. 4th DCA 2002) (upholding contempt but remanding to reconsider fine, holding that Lewis failed to prove actual loss and court failed to include purge), review denied, 828 So.2d 388 (Fla.2002); Lewis v. Nical of Palm Beach Inc., 959 So.2d 745 (Fla. 4th DCA 2007) (holding that civil contempt sanction may be coercive, sanction suspended on condition of future compliance with court orders is proper; court may reconsider entire penalty); Nical of Palm Beach Inc. v. Lewis, 981 So.2d 502 (Fla. 4th DCA 2008) (affirming amended civil contempt sanction; reversing attorney’s fees and cost judgment). As yet unreported are Lewis v. Nical of Palm Beach Inc., No. 4D08-1104 (denying petition for writ of prohibition); Scott Lewis Gardening & Trimming, Inc. v. Nical of Palm Beach Inc., No. 4D07-2057 (denying petition for writ of prohibition); and pending cases; Special Prosecutor v. Nical of Palm Beach Inc., No. 4D08-568; Lewis v. Nical of Palm Beach Inc., No. 4D07-3720; and Lewis v. Nical of Palm Beach Inc., Nos. 4D08-419 & 4D08-671.

      . See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985) (prejudgment interest runs from date entitlement is determined).

      . The agreement of the parties provided: "This entitlement [to attorney's fees] shall be determined separate for each arbitration contempt proceeding, appellate proceeding or other legal proceeding.”


text:
    Barrett Richard PHELPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1693.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.
    Barrett Richard Phelps, Lake City, Pro Se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009).

WARNER, MAY and, LEVINE, JJ., concur.


text:
    Warren STANG, Petitioner, v. STATE of Florida, Respondent.
    No. 2D08-3536.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.

      Warren Stang, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Warren Stang seeks a writ of certiorari directed to the Circuit Court for the Tenth Judicial Circuit, which denied his petition for writ of habeas corpus. Stang contends that he is being illegally detained in the Tenth Judicial Circuit under a sentencing order that is void. Because the attachments to Stang’s petition show that the sentencing order is void, we treat Stang’s petition as a petition for writ of habeas corpus, grant it, and order his release.

Stang initially pleaded guilty in January 2000 to twenty-four various white-collar offenses that occurred between 1991 and 1994. He was sentenced to five years in prison for fifteen of the counts, to run concurrently and with credit for time served, followed by three years of probation for the remaining nine counts, also to run concurrently. After serving his time in prison, Stang was released to probation, which he subsequently violated. The sentencing order on the violation of probation, dated March 30, 2005, imposed a combination of concurrent and consecutive sentences on the pending nine counts that totaled twenty-seven years. However, the order also granted Stang 1915 days’ credit for time served and indicated that the credit was to be applied against each count. The practical effect of this sentencing order was that Stang would serve about two months in prison and then be released with no further supervision.

On April 21, 2005, Stang appealed the revocation of his probation to the Fourth District Court of Appeal. While this direct appeal was pending, Stang was transferred to the custody of the Department of Corrections. When the Department saw the March 30, 2005, sentencing order, it was “confused.” Thus, on June 6, 2005, with no notice to Stang, his counsel, or the State, the Department faxed a letter to “Ana” at the Palm Beach County Clerk of Court. The fax attached the two-page sentencing order from March 30, 2005, and noted that page two of the sentencing order allowed Stang credit for “1,915 days ‘plus’ the original county jail time and time served in the department’s custody from [sic] counts 1 thru 3, 8, 30, 33, 34, 37, 39, 42, 51, 56, 60, 62 and 64, in accordance with Tripp v. State.” The fax also noted that awarding this credit “would result in a potential immediate release.” Therefore, the Department requested that the court “clarify” Stang’s sentence within three working days.

Apparently in response to this letter, on June 7, 2005, the trial court entered an “amended” sentence that gave Stang a total of 1915 days’ credit against his entire sentence. This amendment meant that Stang would serve approximately twenty-two years in prison, rather than approximately two months. Neither Stang nor his counsel were given notice of this “re-sentencing,” and the “amended” sentence was not provided to Stang, his counsel, or the State. This “amended” sentence was entered sixty-nine days after Stang was sentenced for the violation of probation and while Stang’s direct appeal of that sentence was pending.

Stang first learned of the existence of this “amended” sentencing order when he questioned the Department about his release date. The Department told Stang that he had been awarded 1915 days’ credit against his total sentence, not each count, and it provided him with the “amended” sentence. When Stang attempted to address the issue of which sentence should be enforced — the original or the “amended” — through the prison grievance system, he was told that the Department was required to enforce the “amended” sentence and that it had no authority to disregard that sentence.

Stang also attempted to address the enforceability of the “amended” sentence through the court system. In a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, Stang argued that the “jail time served” award in the “amended” sentence was incorrect and contrary to the sentence imposed when he entered his admission to the violation of his probation. See Stang v. State, 976 So.2d 656 (Fla. 4th DCA 2008). After the trial court denied this claim as untimely, Stang appealed, and the Fourth District reversed and remanded for reconsideration on the merits. Id. On remand, the postconviction court ordered the State to respond. The State did so by arguing that Stang was not entitled to the “windfall” of having his time served applied to each count. From the record before this court, it does not appear that the State addressed the issue of whether the “amended” sentence was legally entered or whether it comported with the sentence actually imposed at the violation of probation hearing. After “adopting” the State’s response, the postconviction court denied Stang’s rule 3.850 motion on April 18, 2008.

Stang did not appeal the denial of this postconviction motion. Instead, on June 26, 2008, he filed a petition for writ of habeas corpus with the Tenth Judicial Circuit arguing that the “amended” sentence was void because it was rendered during the pendency of his direct appeal. He also argued that entry of the “amended” sentence violated his due process rights because neither he nor his counsel were given notice of the court’s intent to amend his sentence nor was he given the opportunity to be present when his sentence was amended. Finally, he argued that because his original sentence was not illegal and because the sixty-day period for modifying a sentence under rule 3.800(c) had expired, the trial court had no jurisdiction to “correct” any error in his sentence on the sixty-ninth day. Stang asserted that the initial legally imposed sentence had long since expired and that he was entitled to immediate release. The postconviction court denied Stang’s habeas petition, finding that his claims had been “addressed appropriately at the administrative level.” Stang then sought review of that ruling by seeking a writ of certiorari in this court.

As an initial matter, we treat Stang’s petition for writ of certiorari as a petition for writ of habeas corpus because Stang is seeking his immediate release from custody. Florida Rule of Appellate Procedure 9.040(c) provides that “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Because Stang is seeking his immediate release from prison based on an allegedly void sentencing order, his petition for writ of certiorari should be treated as a petition for writ of habeas corpus.

Turning to the merits, we note that this court’s jurisdiction to consider Stang’s habeas petition is quite limited. While Stang was convicted and sentenced in Palm Beach County, a county not within the territorial jurisdiction of this court, this court nevertheless has jurisdiction to review the sentencing order because Stang is currently assigned to the Hardee Correctional Institution, which is within the territorial jurisdiction of this court. See Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996). In such a case, “the scope of the reviewing court’s inquiry is limited to whether the court that entered the [detention] order was •without jurisdiction to do so or whether the order is void or illegal.” Id.; see also Murray v. Regier, 872 So.2d 217, 221 (Fla.2002); Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007). The crux of the inquiry is whether the order is void or patently illegal, and “[t]he reviewing court may not discharge the detainee if the detention order is merely defective, irregular, or insufficient in form or substance.” T.O., 684 So.2d at 816. As a practical matter, “[i]f the challenged detention order [is] determined to be in violation of the petitioner’s constitutional guarantee of due process, then the order would clearly be ‘illegal’ and not merely defective, irregular, or insufficient in form or substance.” Murray, 872 So.2d at 222.

Here, our review of the record reveals that the detention order under which Stang is being held is void and illegal for several reasons. First, the trial court had no jurisdiction to “amend” Stang’s sentence during the pendency of his direct appeal in the absence of a proper motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Florida Rule of Appellate Procedure 9.600(d) provides that a trial court retains jurisdiction during the pendency of an appeal in a criminal case to consider only motions filed pursuant to rule 3.800(b)(2) and motions addressed to post-trial release pursuant to rule 9.140(h). Cf. Brown v. State, 744 So.2d 1209, 1209 (Fla. 2d DCA 1999) (noting that the trial court’s jurisdiction while an appeal is pending is limited to that provided by rule 9.600(d)).

Here, Stang’s sentence was not “amended” pursuant to any motion filed under rule 3.800(b)(2). Clearly Stang did not file such a motion, and the State could not have properly filed such a motion since rule 3.800(b) permits the State to seek relief “only if the correction of the sentencing error would benefit the defendant or ... correct a scrivener’s error.” Nothing in the record indicates that the error in question was simply a scrivener’s error, nor has the State ever asserted so in any of its filings with the postconviction court, the Fourth District, or in this appeal. Accordingly, pursuant to rule 9.600(d), the trial court was without jurisdiction to enter the “amended” sentence, and the “amended” sentence is therefore void and unenforceable.

Second, the “amended” sentence was entered in violation of Stang’s due process rights. A defendant has a due process right to be present at any sentencing or resentencing hearing at which judicial discretion will be exercised. See, e.g., Griffin v. State, 517 So.2d 669, 670 (Fla.1987); Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008). A defendant also has the right to notice of the sentencing hearing and notice that any new sentence is appealable. Cf. Butler v. State, 973 So.2d 677, 678 (Fla. 2d DCA 2008) (noting that a defendant has a due process right to be represented by counsel at any resentenc-ing and to be informed of his right to appeal the new sentence); Fuston v. State, 838 So.2d 1205, 1207 (Fla. 2d DCA 2003) (questioning the validity of an amended sentence as violative of due process when the defendant was not advised that the amended sentence was appealable); Canete v. Fla. Dep’t of Corr., 967 So.2d 412, 416 n. 4 (Fla. 1st DCA 2007) (expressing serious due process concerns about a sentence imposed outside the defendant’s presence, without notice, and without entry of an appealable sentencing order). Here, the record clearly shows that the trial court adversely modified Stang’s sentence outside of his presence, without notice, and without providing either Stang or his counsel with the “amended” sentence so that an appeal could be taken. These blatant due process violations, apparent from the face of the record, render the “amended” sentence illegal. See Murray, 872 So.2d at 222.

Third, the “amended” sentence violated Stang’s double jeopardy rights. This court and others have repeatedly held that a trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy. See, e.g., Lebron v. State, 870 So.2d 165, 165 (Fla. 2d DCA 2004); Linton v. State, 702 So.2d 236, 236-37 (Fla. 2d DCA 1997); Wheeler v. State, 880 So.2d 1260, 1261 (Fla. 1st DCA 2004); but see Gallinat v. State, 941 So.2d 1237 (Fla. 5th DCA 2006) (finding no double jeopardy violation if the trial court simply corrects an award of jail credit that is clearly incorrect based on the face of the record). Here, as the Department’s faxed letter confirms, the original sentencing documents awarded Stang 1915 days’ credit against each of his sentences. The State neither appealed this award nor filed a motion to modify pursuant to rule 3.800(c). Accordingly, the trial court’s “taking back” of Stang’s previously awarded jail credit was a violation of his double jeopardy rights that renders his “amended” sentence illegal.

Because the “amended” sentencing order under which the Department is holding Stang is void and illegal, it is unenforceable. Under these circumstances, Stang can be legally held pursuant only to the original sentence imposed on March 30, 2005-not the June 7, 2005, “amended” sentence. Since the sentence imposed on March 30, 2005, expired years ago, Stang is entitled to immediate release.

Petition for writ of habeas corpus granted.

NORTHCUTT and VILLANTI, JJ., Concur.

WHATLEY, J., Concurs in result only.


author: NORTHCUTT, Judge. LaROSE, Judge,

text:
    Jessica Lauren WICKY, Petitioner, v. Crisanto C. OXONIAN as Personal Representative of the Estate of Maria I. Oxonian, Respondent.
    No. 2D08-2853.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 2009.
    Rehearing Denied Jan. 6, 2010.
    Alan S. Zimmet and T.R. Unice, Jr. of Zimmet, Uniee & Salzman, P.A., Clear-water, for Petitioner.

      Lorraine E. Robinson of Perenich, Car-rol, Perenich, Caulfield, Avril, Noyes & Perenich, P.A., Clearwater, for Respondent.
   NORTHCUTT, Judge.

In December 2006, Jessica Wicky passed out while driving, and her car collided with another vehicle. The other driver, Maria Oxonian, was killed. During the police investigation of the accident, Ms. Wicky either impliedly or actually consented to giving a sample of her blood to be analyzed for alcohol content and the presence of controlled or chemical substances. See §§ 316.1932-.1933, Fla. Stat. (2006). The analysis disclosed no alcohol or controlled substances, and to date the State has not prosecuted Ms. Wicky for her role in the accident. The blood tests consumed all but a small portion of the sample, which remains in the possession of the Pinellas County Forensic Laboratory.

The personal representative of Ms. Oxonian’s estate, Crisanto Oxonian, filed a negligence action against Ms. Wicky to recover for Ms. Oxonian’s wrongful death. Mr. Oxonian filed a discovery request seeking permission to test the surviving portion of Ms. Wicky’s blood sample for the presence of Benzonatate, a prescription cough medication. The circuit court entered an order granting the request. Ms. Wicky then filed this petition for cer-tiorari seeking to quash the order. We grant the petition.

Mr. Oxonian’s motion did not identify the rule of civil procedure that would authorize the testing of an opposing party’s blood, other than to mention the general discovery rule, Fla. R. Civ. P. 1.280. Ms. Wicky has theorized that the motion was governed by Florida Rule of Civil Procedure 1.350, which addresses production of documents and things. However, in light of the associated privacy concerns and inherent intrusiveness of such an endeavor, we conclude that a request to test human bodily fluids in a civil action must satisfy the requirements of rule 1.360, “Examination of Persons.” See Simons v. Jorg, 384 So.2d 1362, 1363 (Fla. 2d DCA 1980). The more stringent aspects of this rule protect the interest a party has in the integrity of his or her person, an interest that surpasses, say, the interest a party may have in some document or piece of personal property. Although Ms. Wicky’s blood has already been drawn, and a further invasion of her body would not be necessary, she continues to have an interest that rule 1.360 is meant to protect. See Gottlieb v. Samiian, 999 So.2d 678 (Fla. 1st DCA 2008) (discussing rule 1.360 in the context of a motion to test a body for substances ingested during the year before death).

A certiorari petition is the appropriate vehicle for challenging an order granting a compulsory physical examination pursuant to rule 1.360. See State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111 (Fla. 2d DCA 1994); Nobbe v. Nobbe, 627 So.2d 59 (Fla. 2d DCA 1993). Certiorari relief “is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)).

Here, the requested discovery is of an irreparable nature. Very little of the blood drawn during the accident investigation remained after law enforcement completed its tests. The parties agree that the further testing Mr. Oxonian seeks would leave insufficient blood for any additional testing — as a practical matter, the sample would be destroyed. Thus, we easily find that Ms. Wicky has met the “material injury” and “no adequate remedy on appeal” prongs. We therefore focus on the issue of whether the circuit court’s order departed from the essential requirements of law.

Rule 1.360(a)(1) allows a party to request that another party submit to an examination if the condition that is the subject of the examination is “in controversy.” Additionally, an examination is authorized only when the requesting party “has good cause” for the examination. Fla. R. Civ. P. 1.360(a)(2). The burden of proving these two requirements rests with the party seeking the examination. The Florida Supreme Court has noted that these burdens

are not met by mere conelusory allegations of the pleadings-nor by mere relevance to the case-but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.

Russenberger v. Russenberger, 639 So.2d 963, 965 n. 4 (Fla.1994) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)). The requesting party must present evidence to meet its burdens. An evidentiary hearing, or verified affidavits or pleadings, are sufficient to meet the rule’s requirements. Russenberger, 639 So.2d at 965.

Because the parties in this case did not view Mr. Oxonian’s discovery request as one under rule 1.360, they did not appreciate the burdens imposed under that rule. Thus, no evidence was presented at the hearing on Mr. Oxonian’s request; no affidavits were filed, and counsel merely argued in support of the test.

We have interpreted the “in controversy” requirement to mean that the alleged condition “must directly involve a material element of the cause of action.” Williams v. Williams, 550 So.2d 166, 167 (Fla. 2d DCA 1989). The motion to test Ms. Wicky’s blood did not address how the test related to the elements of Mr. Oxonian’s cause of action. It merely asserted that “Jessica Wicky had admitted to taking Ny-quil, Benzonatate and Deconamine prior to driving her vehicle the morning of December 12, 2006. Defendant, Jessica Wicky while driving her vehicle passed out.” At the hearing on the motion, Mr. Oxonian’s counsel explained that Benzonatate is a prescription cough medicine. But he offered no evidence of how the presence of this drug in Ms. Wicky’s blood at the time of the accident might relate to the matter “in controversy,” i.e., Ms. Wicky’s negligence. Cf. Gottlieb, 999 So.2d at 682 (involving a request for disinterment to test a body for drug use and noting that the evidence presented did not reveal the effect of the drugs supposedly taken on the health of the decedent). The order permitting the blood test departs from the essential requirements of law because Mr. Oxonian failed to meet the burden of proof set forth in Russenberger. We quash the order on this basis alone.

In the event Mr. Oxonian wishes to further pursue this discovery, he must follow the dictates of rule 1.360. Accordingly, we offer the following observations to guide the parties and the court.

In the vast majority of strictly civil cases — i.e., medical malpractice or automobile accident suits versus dissolution or paternity actions — it is the defendant who seeks to examine the plaintiff under rule 1.360. In such cases the “in controversy” test is easily met because the plaintiff has put his or her own medical condition in issue by claiming damages based on the condition. See Dimeglio v. Briggs-Mugrauer, 708 So.2d 637, 639 (Fla. 2d DCA 1998); see also Leinhart v. Jurkovich, 882 So.2d 456, 460 (Fla. 4th DCA 2004). Our research has uncovered only one case in the posture presented here, i.e., a plaintiff seeks to examine a defendant under rule 1.360. See Gasparino v. Murphy, 352 So.2d 933 (Fla. 2d DCA 1977).

In Gasparino, Ms. Murphy, the personal representative of a man killed while resisting law enforcement, brought a wrongful death action against a police officer. Her complaint alleged the officer, Gasparino, was negligent and had used excessive force. She sought to subject him to a psychiatric examination, claiming there was “a controversy ... as to the mental state of the defendant.” Id. at 934. In quashing the order permitting the examination, we held that Gasparino’s mental state was not the issue in the case:

Rather, it is his conduct which is at issue; specifically whether such conduct was negligent, unreasonable or involved the use of excessive force. While [Gas-parino’s] mental state may shed some light on why he acted as he did, it is not involved in either establishing the standard of care or in determining whether or not it has been violated.

Id. at 935.

Mr. Oxonian’s burden, then, is to present evidence of how the presence of this cough medicine in Ms. Wicky’s blood would establish her negligence. Absent such proof, he cannot succeed in his request.

While we have so far focused on the “in controversy” requirement of rule 1.360, that is only the first step in the requesting party’s burden of proof. If the party meets that portion of the burden, it must then prove “good cause” for the desired test. In the general civil context, we have found no cases that set out parameters of “good cause” for testing an opponent’s blood. Issues concerning compelled examination of bodily fluids usually arise in the context of paternity actions. In such cases, the compelled blood test likely would decide the issue in controversy, and thus good cause for the test is established. It does not appear that the discovery requested in this case would be as conclusive. But, as noted, Mr. Oxonian did not attempt to show good cause because he was not proceeding under rule 1.360. If he wishes to pursue this discovery, he will have the opportunity to do so.

In all discovery matters the competing interests of the parties must be balanced. If further discovery of Ms. Wicky’s blood is sought, we note that her certiorari petition claims such a test would violate her privacy rights. She also points out that she has an interest in preserving her right to test the blood sample herself under the implied consent law, § 316.1932(l)(f), Fla. Stat. (2006), and that she would be unable to do so if Mr. Oxonian is permitted to destroy the blood sample with his testing. No doubt, if Mr. Oxonian pursues his request, he will set forth his own interests in testing the blood. We offer no opinion on this matter, other than to reiterate that the court should balance the parties’ interests. See Russenberger, 639 So.2d at 965-66; Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla.1987). Additionally, the State, the Pinellas County Sheriffs Department, and the Pinellas County Forensic Laboratory, where the evidence is being held, may each have an interest in the outcome of any discovery request concerning the blood. If Mr. Oxonian proceeds in his attempt to test the blood, these entities must be noticed and given the opportunity to appear. Their interests, if any, must be balanced along with the parties’ interests.

Finally, Ms. Wicky contends that the circuit civil court does not have jurisdiction over this matter. Evidence obtained in connection with a criminal proceeding is held in custodia legis by the court. Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006). As Ms. Wicky correctly points out, the criminal court has inherent jurisdiction over such evidence and civil courts should not be permitted to intrude on pending criminal matters. See Garmire v. Red Lake, 265 So.2d 2, 4-5 (Fla.1972). We agree with this proposition, but it cannot be applied here because Ms. Wicky has never been prosecuted; hence there has been no involvement of the criminal court. Moreover, although most circuit courts are divided into divisions for efficiency of administration, all circuit court judges may hear and rule on any case within the circuit court’s jurisdiction. Payette v. Clark, 559 So.2d 630, 633 (Fla. 2d DCA 1990). Thus, the judge presiding over the civil case does have jurisdiction to decide this matter.

We grant Ms. Wicky’s petition and quash the order granting Mr. Oxonian’s motion to test the blood sample.

WHATLEY, J., Concurs.

LaROSE, J., Dissents with opinion.

LaROSE, Judge,

Dissenting.

I dissent. A small blood sample remains. Further testing will consume it. Although the underlying accident occurred almost three years ago, Ms. Wicky still fears prosecution. Her claimed need to maintain the sample for unspecified testing at an unspecified time for purposes of defending against possible criminal charges propels the matter to us.

Our certiorari review is constrained. We may quash the order only if Ms. Wicky demonstrates a departure from the essential requirements of law that causes material and irreparable harm. See DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007). The order is tentative. It causes neither material nor irreparable harm. I would dismiss the petition.

Ms. Wicky’s argument distills to two points. First, testing will destroy Ms. Wicky’s ability to conduct her own future tests. Second, the State Attorney should participate in this discovery matter. The order addresses both concerns.

Immediate testing is unavailable. Pending further direction from the trial court, the sample remains with the Pinellas County Forensic Laboratory. Additionally, proceedings before the trial court reflect that the State Attorney must be given notice of and allowed to weigh in on all further proceedings related to the testing.

More critical, however, the trial court recognized Ms. Wicky’s potential need to conduct her own testing. As a result, further court action must precede any testing contemplated by Mr. Oxonian. The order directs the parties to confer “as to the selection of a laboratory and testing methods for the Court’s consideration.” The reason is clear: so Ms. Wicky can propose methodologies that will enable her to do her own contemporaneous tests. As the trial court made clear at its May 1, 2008 hearing:

I just want to see if there is a means to give everyone access at the same time to testing if that can be possible.... [Bjar-ring some proposal that is reasonable and more appropriate I’m going to do it in the fashion that is being sought by plaintiff, but I want to give the defense the opportunity to tell me that they want to have it done in another way and have me consider that.

Ms. Wicky understands that the order is not etched in stone:

[Counsel]: How about an order granting plaintiffs request; however, the manner and who will be doing the testing and what testing will be performed will be done pursuant to an additional order of the Court. The Court: All right. That sounds like a fair means of handling it.

Properly understood, the order addresses adequately Ms. Wicky’s dual concerns. Its tentative nature compels me to see no material, irreparable injury. See Senior Care Group, Inc. v. Estate of Fischer ex rel. Woodworth, 12 So.3d 766 (Fla. 2d DCA 2009).

Because I would dismiss the petition, I will not dwell on the issue of whether the trial court departed from the essential requirements of law in analyzing the discovery motion under rule 1.280. I will observe, however, that it is not plainly evident that the trial court must analyze the motion under rule 1.360. That rule addresses examinations of persons. The blood sample was not obtained in connection with a physical examination conducted in ongoing litigation. I recognize that application of rule 1.360 may be preferable. However, an adequate legal analysis that addresses all competing interests could be done under the more general discovery rules. See Fla. R. Civ. P. 1.280(a), (b)(1), (C), 1.350. In my view, to do so does not constitute a departure from the essential requirements of law.


text:
    CORDIS CORPORATION and Johnson & Johnson of New Jersey, Inc., d/b/a Johnson & Johnson, Petitioners, v. Sean O’SHEA, Respondent.
    No. 4D09-1597.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 2009.

      Jeffrey B. Shapiro and Andrea Cox of Arnstein & Lehr LLP, Miami, for petitioners.
    Jane Kreusler-Walsh and Rebecca Merrier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Theodore Babbitt of Babbitt, Johnson, Osborne & LeClainche, P.A., West Palm Beach, for respondent.
   PER CURIAM.

Petitioners Cordis Corporation and Johnson & Johnson of New Jersey, Inc. seek prohibition barring the circuit court from continuing to entertain a complaint against them alleging various claims involving the use of a Cypher brand cardiac drug-eluting stent. The petition follows a March 2, 2009 order which granted in part and denied in part their motion to dismiss the third amended complaint with prejudice.

Part of petitioners’ defense is that federal law preempts state causes of action. The Cypher stent is considered a Class III medical device regulated by the Food and Drug Administration (FDA) pursuant to the 1976 Medical Deviee Amendments (MDA) to the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-399a. Class III devices are used for “supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health.” 21 U.S.C. § 360c(a)(l)(C)(ii)(I). Before a manufacturer can market a Class III device, it must submit a Pre-Market Approval (PMA) application providing the FDA with “reasonable assurance” that the device is both safe and effective. See 21 U.S.C. § 360e(d)(2). The FDA may deny the application, request additional information from the manufacturer, or grant approval. The manufacturer must comply with all design, manufacturing and labeling specifications set forth in a PMA approval order. 21 C.F.R. § 814.80. Petitioners advise that the FDA continues its oversight of the safety and effectiveness of PMA-approved devices after approval.

Petitioners contend that the Cypher brand stent was the first drug-eluting stent of its kind. It was approved by the FDA through a PMA in April, 2003 for use by physicians in patients with atheroscler-otic obstructive coronary disease. The conditions of approval call for continuing supervision by the FDA. Petitioners’ argument is that the FDA’s extensive oversight of the Cypher brand stent’s safety and effectiveness leads to federal preemption of any state claim that challenges the FDA’s determination that the stent is safe.

In a thoughtful series of orders, the circuit court dismissed some claims, allowed others to proceed, and considered the application of Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008), where the Supreme Court wrote:

State requirements are pre-empted under the MDA only to the extent that they are “different from, or in addition to” the requirements imposed by federal law. Section 360k(a)(l). Thus, Section 360K does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case “parallel,” rather than add to, federal requirements.

Id. at 1011 (citations omitted).

We reject petitioners’ assertion that this case is controlled by American Maritime Officers Union v. Merriken, 981 So.2d 544 (Fla. 4th DCA 2008). In American Maritime, we held that a petition for prohibition would lie where a complaint against a benefits plan alleging whistleblower claims was completely preempted by federal ERISA law. However, that holding was based upon ERISA’s grant of exclusive jurisdiction to federal district courts for violations under its laws. See 29 U.S.C. § 1132(e). No similar statute grants exclusive jurisdiction over the subject matter of this case.

We agree with respondent that this is a case of defensive, and not complete, preemption. Further, the issues presented are more properly characterized as a “choice of law” issue rather than “choice of forum” preemption, which would provide exclusive jurisdiction in the federal courts. See Bertoni v. Stock Bldg. Supply, 989 So.2d 670, 674 (Fla. 4th DCA 2008) (in which the court contrasted defensive preemption with complete preemption); Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747, 749 n. 1 (Fla. 4th DCA 1997) (where court recognized that a question of whether federal law governed the substance of a dispute was not a question of subject matter jurisdiction); Cent. Nat’l Bank of Miami v. Cent. Bancorp, Inc., 411 So.2d 358 (Fla. 3d DCA 1982). We agree with the analysis of Gonzales v. Surgidev Corp., 120 N.M. 133, 899 P.2d 576, 582 (1995):

In considering whether federal preemption affects subject matter jurisdiction, the issue is not whether Congress intended to replace state law with a federal regulatory scheme but “whether jurisdiction provided by state law is itself pre-empted by federal law vesting exclusive jurisdiction over that controversy in another body.” International Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 387-88, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986). The Davis Court labeled this distinction choice-of-forum preemption, which deprives the state court of subject matter jurisdiction, as opposed to choice-of-law preemption, which limits the court’s ability to grant relief on a state law claim. Id. at 391, 106 S.Ct. 1904. Under choice-of-law preemption, a state court has jurisdiction to entertain the claim, but it must apply federal law in deciding the claim on the merits. In contrast, under choice-of-forum preemption, the state court lacks jurisdiction even to entertain the claim, which can then only be raised in federal court. The Davis Court noted that choice of forum preemption “does not apply to preemption claims generally but only to those preemption claims that go to the State’s actual adjudicatory or regulatory power as opposed to the State’s substantive laws.” Id. at 391 n. 9, 106 S.Ct. 1904.

(Some internal citations omitted).

We dismiss the petition for writ of prohibition without prejudice to petitioners’ right to raise their challenges on final appeal.

GROSS, C.J., DAMOORGIAN and GERBER, JJ., concur.