author: BURKE, Judge. JOINER, Judge,

text:
    Demario Ladell KEITH v. STATE of Alabama
    CR-15-1319
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    Katherine P. Bounds, Birmingham, for appellant
    Luther Strange, atty. gen., and Jean A. Webb, asst. atty. gen., for appellee.
   BURKE, Judge.

. Demario Ladell Keith pleaded guilty to unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975, and first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975. Pursuant to a plea agreement with the State, Keith was sentenced to 130 months’ imprisonment for each conviction, to be served concurrently; those sentences were split, and he was .ordered to serve 24 months. Before entering his guilty; plea, Keith filed a motion to suppress the evidence that formed the.basis of the charges against him. After a hearing on the matter, the trial court denied Keith’s motion. Keith subsequently reserved that issue for appellate review during his guilty-plea colloquy. (R. 14.)

■At the hearing on Keith’s motion to suppress, Nathan Elmore, an officer with the Birmingham Police Department, testified that he pulled Keith over after he determined that - the license plate on Keith’s vehicle was registered to a different vehicle, Officer Elmore stated that, after he executed the traffic stop, he approached Keith and asked for his identification.' When Officer Elmore ran Keith’s information through , dispatch, it was determined that Keith had outstanding warrants for driving with a revoked license, disregarding, a stop sign, and “one other charge” ^elated to a traffic violation, (Rl. 19.) After confirming that the warrants were valid, Officer Elmore placed Keith under arrest. Officer Elmore testified that Keith was not violating any traffic laws before he decided to run Keith’s license plate number and that, when he frisked Keith, he found no contraband, nor was any contraband in plain view inside of Keith’s vehicle. According to Officer El-more, he conducted an inventory search of Keith’s vehicle only after a decision was made to have the vehicle towed and impounded, During the inventory search, Officer Elmore discovered marijuana and other controlled substances underneath the passenger’s seat. '

In his motion to suppress the evidence seized during the inventory' search, Keith argued that the search was unconstitutional because it was conducted without a warrant and because none of the recognized exceptions to the warrant requirement existed. The State argued that the evidence discovered in Keith’s vehicle was admissible because it was discovered during an inventory search, a well recognized exception to the warrant requirement.

In State v. Landrum, 18 So.3d 424 (Ala. Crim. App. 2009), this Court explained:

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996); State v. Otwell, 738 So.2d 960, 962 (Ala. Crim. App. 1999),’ State v. Skaggs, 903 So.2d 180, 181 (Ala. Crim. App. 2004). In State v. Hill, 690 So.2d 1201 (Ala. 1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
“ ‘ “Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s, application of the law to those facts.” Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980)(citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term “reasonable suspicion” as applied to an undisputed set of facts; the proper interpretation is a question of law.’
“State v. Hill, 690 So.2d at 1203-04.”

18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the trial court correctly applied the-law to the facts presented at the suppression hearing, and we afford no presumption in favor of the trial court’s ruling.

I

It is well settled that “warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement.” Hinkle v. State, 86 So.3d 441, 451 (Ala. Crim. App. 2011)(internal citations omitted). Those exceptions are: “(1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches.’! Id.

In South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court held that inventory searches conducted by police were not unreasonable under the Fourth Amendment and thus created -an exception to the warrant requirement. The Court stated that the inventory search was “developed in response to three distinct needs: [1] the protection of the owner’s property while it remains in police custody; [2] the protection of the police against claims or disputes over lost or stolen property; [3] and the protection, of the police from potential danger.” 428 U.S. at 369. In Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Court held that the existence of police discretion in conducting inventory searches did not render the inventory-search exception unconstitutional “so long as that discretion is exercised according to standard criteria and on the basis- of something other than suspicion of evidence of criminal activity.”

In Ex parte Boyd, 542 So.2d 1276, 1281 (Ala. 1989), the Alabama Supreme Court, in addressing the issue of inventory searches, considered the following question: “[W]hat constitutes evidence that the police complied with reasonable or standardized police regulations or procedures relating to automobile inventory- practices?” In Boyd, the appellant objected at trial “to the admission of testimony concerning evidence obtained from the inventory on the ground that no testimony or other evidence established what the policies or procedures of the Anniston Police Department relating to inventory searches were.” The Court held:

“Throughout the majority, concurring, and dissenting opinions of Bertine are references to and quotations from the written procedures followed by the Boulder, Colorado, police department in conducting inventories. Accompanying that evidence was the testimony of officers concerning the' manner in which inventories were accomplished: Upon review of that evidence, the Supreme Court was able to conclude that ‘reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment,’ Bertine, 479 U.S. at 374, 107 S.Ct. at 742, and that police procedures were satisfactory so long as conducted ‘according to standard criteria.’ Id. at 375, 107 S.Ct. at 743.
“Here, we can not determine whether the regulations of the Anniston Police Department relating to inventory searches are ‘reasonable,’ or whether the police acted in accord with ‘standard criteria.’ Sergeant Watson testified that the inventory was done ‘in compliance with the policies of the police department.’ Officer Bradley added that he ‘usually’ took photographs of the subject .automobile when a.‘major crime’.was involved. Neither officer knew where the policy was recorded. Furthermore, there was no testimony whatsoever that pro-yided the particulars of the policy. Without more, we can not possibly conclude that the police department’s inventory policy was reasonable. Proving the reasonableness of a warrantless search is a burden borne by the State. Teat v. State, 409 So.2d 940 (Ala. Crim. App. 1981). Without such proof, the search is constitutionally defective. In this case, the issue was properly preserved, and we conclude that the search can not be upheld as an inventory.”

Boyd, 542 So.2d at 1281-82.

The Court in Boyd also held “that a police officer’s conclusory testimony that the inventory was done in compliance with departmental regulations” does not, of itself, satisfy the Fourth Amendment. 542 So.2d at 1282. Finally, the Court noted that no inventory list was contained in the record on appeal. Despite testimony that a list was created, the Court held that “the State’s failure to provide evidence of the inventory list implanted one more impermissible chink in the petitioner’s Fourth Amendment armor.” 542 So.2d at 1283. In conclusion, the Court held:

“We are not, by our holding herein, imposing new, strange, or unwarranted burdens on Alabama law enforcement agencies. Indeed, Opperman and Bertine created a narrow Fourth Amendment exception that renders admissible other-ydse excludable evidence; however, for such evidence to pass constitutional muster, the record must sufficiently reflect what that policy is, describe the policy in such a way that its reasonableness can be reviewed, and present adequate evidence of what the employed criteria were.”,

542 So.2d at 1283.

The record in the present case contains the same defects that rendered the search in Boyd unconstitutional. Although the State elicited testimony from Officer Elmore regarding the police department’s inventory-search policy, that testimony was limited. Officer Elmore testified that it was the department’s policy to inventory "a vehicle before it is towed “[t]o make sure that everything that [the arrestee] says is in the vehicle is still in there.” (Rl. 8.) Elmore testified that he completed the inventory and created an inventory list; however, he did not have the list with him at the hearing and it is not contained in the record before this Court. The State did not elicit any testimony regarding where a copy of the department’s policy could be found, the particular criteria for conducting an inventory search contained in the policy, and whether Officer Elmore followed that criteria when he conducted the search of Keith’s vehicle. Similar to Boyd, the lack of evidence presented by the State at the suppression hearing prevents us from being able to review, the reasonableness of the officer’s search. Accordingly, we hold that the purported inventory search of Keith’s vehicle violated the Fourth Amendment and cannot be upheld.

The dissent contends that the present case is distinguishable from Boyd “in significant respects.” 231 So.3d 363 at 372 (Joiner, J., dissenting). First, the dissent points out that “unlike the defendant in Boyd, Keith, once the officer testified that he had performed the search in accordance with the department’s policy, did not object to any ‘further testimony concerning the inventory or its fruits unless proof was made as to what the policies or procedures were.’” Id. Keith did not object to any further testimony regarding' the department’s policy because there was no further testimony regarding the department’s policy. That deficiency is the basis for the holding in the present case. We also note that the relevant objection in Boyd was made during trial. In the present case, Keith’s argument was made during a hearing on his motion to suppress, immediately after the State’s witness testified in an attempt to justify his warrantless search of. Keith’s vehicle. To say that this argument did not “put the trial court on timely and adequate notice that Keith was challenging the reasonableness of the policy of the Birmingham Police Department regarding inventory searches” defies common sense.

Second, the dissent points to the Boyd Court’s holding regarding the delay between the impoundment of Boyd’s vehicle and the subsequent inventory search and correctly asserts that “nothing in the record indicates that any significant length of time elapsed between impoundment and the search [in the present case].” Id. However, the length of time between the search and the impoundment is irrelevant in the present cáse. The holding in Boyd regarding the temporal proximity between the impoundment and the search was mutually exclusive from the holding regarding the lack of evidence as to the police department’s inventory policy. See Boyd, 542 So.2d at 1281 (“We also point out another basis for our conclusion that this search cannot be upheld as a constitutional inventory.” (emphasis added)).

Next, the dissent states: “Officer El-more’s testimony, albeit brief, was sufficient to indicate what the policy was (to perform an inventory search on every vehicle that is towed) and why the inventory-search policy existed (‘[t]o make sure that everything that he says is in the vehicle is still in there’).” We agree. However, Boyd also requires the State to “describe the policy in ¡such a way that its reasonableness can be reviewed, and present adequate evidence of what the employed criteria were.” 542 So.2d at 1283. Nothing in Officer Elmore’s testimony allows this Court to determine, for example, whether the department’s policy would allow an officer to search a container found inside a vehicle. The fact that all impounded vehicles are inventoried says nothing about the specific criteria that are employed when conducting those inventories. Accordingly, we -are unable to determine whether those criteria are reasonable.

Finally, the dissent attempts to distinguish Boyd by noting that Officer Elmore’s testimony suggested that the department’s policy gives officers no discretion in deciding which vehicles to inventory. According to the dissent, the evidence in Boyd “included testimony indicating, among other things, that an inventory search was performed in some cases but not others....” 231 So. 3d at 372. However, no such testimony was elicited in Boyd. In fact, the testimony in Boyd was nearly identical to the testimony in the present case. The officer in Boyd stated: ‘Whenever a vehicle is impounded, this vehicle has to be inventoried thoroughly in order to determine and document anything that may be contained therein.” .Although another officer went on to stale that officers sometimes used a camera when conducting inventory searches, there was absolutely no testimony that officers had discretion in determining whether to perform an inventory search on a vehicle once it was impounded.

Thus, Boyd is not distinguishable from the present case in any meaningful way, and the search in the present case suffers from the same constitutional defects.

II.

In its brief on appeal, the State alternatively argues that the search was justified as a search incident to a lawful arrest. In support of that argument, the Staté cites Sheffield v. State, 606 So.2d 183, 187 (Ala. Crim. App. 1982), in which this Court held:

“After arresting the driver of an automobile, an officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that car, including ‘the contents of any containers found within the passenger compartment.’ New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Daniels v. State, 416 So.2d 760, 763 (Ala. Cr. App. 1982). See also, State v. Calhoun, 502 So.2d 808 (Ala. 1986).”

However, the above-quoted passage from Sheffield relies on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in support of the broad rule that police may search the passenger, compartment of a vehicle after arresting the driver. In Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the United States Supreme Court narrowed the search-incident-to-arrest exception announced in Belton and held that “[pjolice may search a vehicle incident to a recent occupant’s arrest only if the arres-tee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

In Gant, the appellant’s vehicle was searched after he was “arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car.” 556 U.S. at 335. The United States Supreme Court agreed with the Arizona Supreme Court’s holding that the search-incident-to-arrest exception did not apply because “Gant could not have accessed his car to retrieve weapons or evidence at the time of the search.” Id. The Court also found the search of Gant’s vehicle unreasonable because, it said, police could not reasonably have believed that evidence of the crime for which Gant was arrested, i.e., driving with a suspended license; might have been found in the passenger- compartment of Gant’s car. Id. at 344.

In the present case, Officer Elmore testified that Keith’s vehicle was searched after Keith was arrested. (Rl, 9.) Thus, Keith could not have accessed any part of his vehicle at the time of the search. Additionally, Keith was arrested for outstanding warrants involving traffic violations. Like the officers in Gant, Officer Elmore could not have reasonably expected to find evidence of those crimes inside of Keith’s vehicle. Accordingly, under Gant, Officer Elmore’s warrantless search of Keith’s vehicle did not qualify as a search incident to arrest and, therefore, violated the Fourth Amendment,.

Keith also argues that it was unconstitutionally pretextual for police to run his license-plate number without any reasonable-suspicion that Keith was violating the law. Because we have determined that the subsequent search was unconstitutional, we need not address that issue.

For the foregoing reasons, the trial court erred by denying Keith’s motion to suppress. Accordingly, the .judgments of the trial court are reversed and these cases are remanded for further proceedings, consistent with this opinion.

REVERSED AND REMANDED.

Welch and Kellum, JJ,, concur. Windom, P.J., dissents. Joiner, J., dissents, with opinion. ■ •

JOINER, Judge,

dissenting.

In reversing Demario Ladell Keith’s convictions and sentences, the Court relies primarily on Ex parte Boyd, 542 So.2d 1276 (Ala. 1989), in which the Alabama Supreme Court held an inventory search unconstitutional. The inventory search in Boyd was conducted by a Sergeant Watson and Officer Bradley of the Anniston Police Department four days after Boyd was arrested and his car was impounded) In describing the evidence regarding the inventory search, the Alabama Supreme Court stated:

“Sergeant Watson agreed that the inventory was conducted in 'compliance with the policies of the police department.’ Boyd objected to any further testimony concerning the inventory- or its fruits unless proof was made as to what the policies or procedures were; his objection was overruled.
“During Sergeant Watson’s cross-examination, the following exchange occurred:
“‘Q. Let’s go back to what you’ve referred to as an inventory search of a vehicle.
“ Would you please tell this Court, and this jury what the policy is with the City of Anniston concerning inventory searches?
“ ‘A. Whenever a vehicle is impounded, this vehicle has to be inventoried thoroughly in order to determine and document anything that may be contained therein.
“‘Q. Do you normally do those inventory searches?
“ ‘A. I haven’t in a long time. I did for many years. I make very few arrests, nor do I inventory .many cars now. •
‘“Q. When was the last time you inventoried a vehicle other than [Boyd’s] car?
“ ‘A. I can’t tell you, sir, I don’t know.
“ ‘Q. A year or two?
“ ‘A. Possibly.’

“Sergeant Watson testified that he did not know where in the city’s policy regarding inventory procedures the criteria for conducting inventories were located. He did not know where the list compiled as the result of the inventory was located, and no such list was introduced at trial.

“Officer Bradley was also pressed on cross-examination about the city’s policies and procedures regarding inventorying impounded automobiles:

‘“Q. It’s the standard policy of the police department of the City of Anni-ston to go out and get evidence whenever a car is impounded?-'
“‘A. No. You’re always aware that evidence may be- found when you’re making an inventory.
“ ‘Q. And, of course; you always take a camera with you when you do an inventory?
“ ‘A. On some occasions, yes, sir, you do.
“ ‘Q., Always?
“ ‘A. Not always.
“ ‘Q. What percentage of the time?
“ ‘A. I beg your pardon?
“ ‘Q. What percentage of the time is a camera used in making an inventory search of a vehicle at the police department of Anniston?
“ ‘A, Usually, when we’re aware that there is a major case involved, we will take a camera as routine procedure to document what condition it’s in or anything we discover and to aid us in later documenting what was inside the vehicle.
“ ‘Q. Did you do any kind of recording while you were doing this inventory search?
“ ‘A. No, sir. That wasn’t my job.
“ ‘Q. Did anybody?
“ ‘A. Yes, sir.
“ ‘Q. In whose possessipn is that recording?
“ ‘A. I don’t know where the report is.’
“No other testimony was adduced by either the State or Boyd relating what the inventory procedures of the City of Anniston Police Department were. No directive, general order, or evidence of a municipal code was introduced that would show what the policies were.
“We take notice that the State prosecuted its case with extensive testimony, nearly unfaltering, almost exclusively directed at the proposition that the war-rantless search of Boyd’s Camaro was valid as an inventory. Boyd’s objections at trial ^nd rulings in response thereto were directed at the validity of the city’s inventory policies. The briefs to the Court of Criminal Appeals and to this Court primarily address the propriety of the search as an inventory. Only in passing did the Court of Criminal Appeals suggest that the search could have been valid as a ‘vehicle search’ based on probable cauáe.”

542 So.2d at 1277-78.

The Boyd Court held first that the search was unconstitutional because of the “insufficient temporal proximity between the impoundment and the search.” 542 So.2d at 1281. The Court specifically stated:

‘We are unaware of any case, federal or state, that presents the issue of whether a search can be valid as an inventory notwithstanding a four-day lapse of time between the impoundment and the inventory. We are of the opinion that the Fourth Amendment requires that, without a demonstrable justification based upon exigent circumstances other than the mere nature of automobiles, the inventory be conducted either contemporaneously with the impoundment or as soon thereafter as would be safe, practical, and satisfactory in light of the objectives for which this exception to the Fourth Amendment warrant requirement was created. In other words, to be valid, there must be a sufficient temporal proximity between the impoundment and the inventory. When the inventory must be postponed, each passing moment detracts from the full effectuation of the objectives of the inventory, and indeed, disserves those objectives; at some point, the passage of time requires, to uphold the validity of the inventory, proof of some immediate and exigent circumstances (other than the mere nature of automobiles) the attention to which is more important than protecting the arrestee’s property and protecting the police from false claims or danger associated with that property.”

542 So.2d at 1279.

As an additional reason for its holding that the search was unconstitutional, the Boyd Court cited “Boyd’s objection] at trial to the admission of testimony concerning evidence obtained from the inventory on the ground that no testimony or other evidence established what the policies or procedures of the Anniston Police Department relating to inventory searches were.” 542 So.2d at 1281. The Court stated:

“Here, we can not determine whether the regulations of the Anniston Police Department relating to inventory searches are- ‘reasonable/ or whether the police acted in aceord with ‘standard criteria.’ Sergeant Watson' testified that the inventory was done ‘in compliance with the policies of the police department.’ Officer Bradley added that he ‘usually’ took photographs of the subject automobile when a ■ ‘major crime’ was involved. Neither officer knew where the policy was recorded. Furthermore, there was no testimony whatsoever that provided the particulars of the policy. Without more, we can not possibly conclude that the police department’s inventory policy was reasonable. Proving the reasonableness of a warrantless search is a burden borne by the State. Teat v. State, 409 So.2d 940 (Ala. Crim. App. 1981). Without such proof, the search is constitutionally defective. In this case, the issue was properly preserved, and we conclude that the search-can not be upheld as an inventory.”

542 So.2d at 1281.

In the instant case, as the Court notes in stating the standard of review, the evidence presented at the hearing was not- in dispute. The only witness who testified at the hearing was Officer Nathan Elmore. On direct examination, the following exchange occurred:

“A. And after arrest, we inventoried Mr. Keith’s vehicle that he was driving, and we found—
“Q, All right. Let me ask you this question: Why did you inventory the vehicle?
“A. It’s part of our policy if we’re going to tow the vehicle that we inventory it.
“Q. All right. So you were going to tow the vehicle. And did you, in fact, tow the vehicle?
“A. Yes.
“Q. You were going to tow it, so you do an inventory. What is the purpose of the inventory?
“A. To make sure that everything that he says is in the vehicle is still in there.
“Q. Now, did you-complete the inventory?
“A. Yes.
“Q, All right. During the course of conducting inventory, did you find any-contraband in the car?
“A. Yes.”

(Rl. 7-8 (emphasis added).)

On cross-examination, Officer Elmore was asked one question about the department’s inventory policy. Specifically, the following exchange occurred:

“Q. Is it procedure for the Birmingham Police Department, when you conduct an inventory search, that you’re supposed to create - an inventory list?
“A. Yes.”

(Rl. 21.) This question and answer occurred in a brief line of questioning about whether Officer Elmore had brought a copy of the inventory list to the suppression hearing; he had not.

Following Officer Elmore’s testimony, Keith’s counsel made the following argument regarding the inventory search:

. “The witness indicated that this was an inventory search. Well, the law says that when you conduct an inventory search there are proper procedures that have to be followed procedurally by your police department. And then, if proper procedures are implemented, you have to actually create the list for the inventory search.
“He says he’s done one, but he has not presented it here, which would be the proper time to show us that he actually followed the proper rules and procedures of this search.”

(Rl. 26.)

The instant case is distinguishable in significant respects from Boyd. First, unlike the defendant in Boyd, Keith, once the officer testified that he had performed the search in accordance with the department’s policy, did not object to any “further testimony concerning the inventory or its fruits unless proof was made as to what the policies or procedures were.” Nor did Keith, through questioning or otherwise, offer anything that would call into question the stated policy of searching every vehicle that 'is towed. Rather, Keith waited until the officer’s testimony was completed and then argued that the officer’s failure to bring a copy of the inventory list meant that the search was unreasonable. This late objection to the failure to introduce a copy of the inventory list is insufficient to put the trial court on timely and adequate notice that Keith was challenging the reasonableness of the policy of the Birmingham Police Department regarding inventory searches.

Second, nothing in the-record indicates that any significant length of time elapsed between impoundment and the search; indeed, it is reasonable to infer that the inventory search occurred immediately or not long after Keith’s arrest. Thus, this case does not implicate any concerns over “temporal proximity between the impoundment and the search.” .

Third, Officer Elmore’s testimony, albeit brief, was sufficient to indicate what the policy was (to perform an-inventory search on every vehicle that is towed) and why the inventory-search policy existed (“[t]o make sure that everything that he says is in the vehicle is still in there”).

Fourth, Officer Elmore’s testimony that the police-department policy was to perform an inventory search on every car it towed indicates that the policy gave officers no discretion to refuse to perform an inventory search after a decision was made to tow a vehicle. This lack of discretion is distinguishable from the evidence regarding the policy at issue in Boyd; that evidence, as noted, included testimony indicating, among other things, that an inventory search was performed in some cases but not others and that photographs were taken in some cases but not others.

In sum, this case simply does not involve the vast array of constitutional problems that were present in Boyd. Unlike the extensive testimony regarding the inventory search at issue in Boyd, this case involved relatively straightforward and uncontested evidence regarding the inventory search.

In my opinion, the State met its burden to establish that the inventory, search was constitutional. I respectfully dissent.

      . "Rl" denotes the record from the hearing on Keith’s motion-to suppress from case CR- , , 15-0851, a pro se appeal that was dismissed for lack of ripeness. This Court took judicial notice of the record in that case.

      . We note that Officer Elmore initially testified that he could not remember whether Keith had a passenger in his vehicle when he was arrested. On cross-examination, Officer 'Elmore was shown a transcript from'a previous hearing in which he had testified that his partner "was dealing with the passenger" while Officer Elmore was dealing with Keith. (Rl. 23.) However, Officer Elmore could not remember any details about the passenger and Officer Elmore's partner did not testify, at the hearing.

      . The main opinion asserts:
      "Nothing in Officer Elmore’s testimony allows this Court to determine, for example, whether the department’s policy would allow an officer to search a container found inside a vehicle. The fact that all impounded vehicles are inventoried says nothing about the specific criteria that are employed when those inventories are conducted. Accordingly, we are unable to determine whether those criteria are reasonable.”
      231 So. 3d at 367. I fail to see what difference this speculative objection by the majority makes in terms of evaluating reasonableness under the facts of this case. A' policy permitting or not permitting an officer conducting an inventory search to search a container found in a vehicle would not offend the Constitution and thus could be reasonable. Cf. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (holding that police performing an inventory search may open closed containers).
      Certainly, the State has the burden of justifying an inventory search, and, certainly, the State in this case could have introduced more evidence regarding the department’s inventory procedures. At the same time, the Constitution does not require the State to put on an ideal case, and Keith could have asked additional questions if he had any serious question about the reasonableness of the inventory-search procedures utilized in this case.
      In my view, -there simply is nothing -in this case — -save speculative second-guessing from this Court — that calls into question Officer Elmore’s undisputed testimony that the department’s policy was to perform an inventory search on every vehicle that was towed.

      . The main opinion asserts that "no such testimony was elicited in Boyd.’’ As quoted above, Officer Bradley in Boyd answered "No” to the question “ 'It’s the standard policy of the police department of the .City of Anniston to go out and' get evidence whenever a car is impounded?” (Emphasis added,)


source: Caselaw Access Project

author:
PER CURIAM.
      LAWSON, J.,

license: Public Domain

text:
    Victor Tony JONES, Appellant, v. STATE of Florida, Appellee.
    No. SC15-1549
    Supreme Court of Florida.
    [September 28, 2017]
    Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis III, Litigation Director, and Nicole M. Noel, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauder-dale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Melissa J. Roca, Assistant Attorney General, Miami, Florida, for Appellee
   PER CURIAM.

Victor Tony Jones, a prisoner under sentence of death, appeals the circuit court’s order summarily denying his fourth successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

We previously affirmed Jones’s convictions and sentences of death on direct appeal. Jones v. State, 652 So.2d 346, 353 (Fla. 1995). We affirmed the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Jones v. State, 855 So.2d 611, 619 (Fla. 2003). We affirmed the denial of his first and second successive motions for postconviction relief and the circuit court’s determination that he is not intellectually disabled. Jones v. State, 93 So.3d 178, 178 (Fla. 2012); Jones v. State, 966 So.2d 319, 330 (Fla. 2007). The appeal of the denial of his third successive motion for postconviction relief was voluntarily dismissed. Jones v. State, 135 So.3d 287 (Fla. 2014) (table).

Jones filed his fourth successive motion for postconviction relief on May 26, 2015, seeking a new determination of his claim that he is ineligible for the death penalty due to intellectual disability in light of the recent decision of the United States Supreme Court in Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). The circuit court summarily denied the motion on June 18, 2015; concluding that Jones is not entitled to relief under Hall, because he had a full and complete evidentiary hearing that lasted several days, during which he presented evidence regarding all three prongs of the intellectual disability standard yet failed to establish that he met any of the three prongs. This appeal follows.

“[T]he term ‘intellectually disabled’ or ‘intellectual disability’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” § 921.137(1), Fla. Stat. (2015). “Significantly subaverage general intellectual functioning” is defined as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities.” Id. “Adaptive behavior” “means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.” Id.

In Hall, the Supreme Court held that Florida’s interpretation of section 921.137(1) as establishing a strict IQ test score cutoff of 70 “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” 134 S.Ct. at 1990. The Court further held that when assessing the sub-average intellectual functioning prong of the intellectual disability standard, courts must take into account the standard error of measurement of IQ tests. Id. at 2001. And “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of’ intellectual disability, including testimony regarding adaptive deficits.” Id-Hall also held that an intellectual disability determination is a “conjunctive and interrelated assessment” such that no single factor can be considered dispositive. Id.; see also Oats v. State, 181 So.3d 457, 467-68 (Fla. 2015) (“[A]s the Supreme Court has now recognized, because these factors are interdependent, if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of other prongs.”' (citing Hall, 134 S.Ct. at 2001)). Although we held that “Hall warrants retroactive application as a development of fundamental significance,” Walls v. State, 213 So.3d 340, 346 (Fla. 2016), petition for cert. filed, No. 16-1518 (U.S. May 10, 2017), we conclude that under the circumstances presented in this case, Jones is not entitled to relief under Hall.

When the trial court considered Jones’s first successive motion for postconviction relief and intellectual disability claim in 2006, it permitted Jones to present evidence regarding all three prongs of the intellectual disability standard. The trial court concluded that Jones was not intellectually disabled and “did not meet even' one of the three statutory requirements for [intellectual disability].” Jones, 966 So.2d at 325.

Jones argues that he is entitled to relief under Hall because the IQ scores that were presented to the trial court in 2006 fall within the tests’ acknowledged and inherent margins of error — which Hall requires courts to take into account — and he is therefore entitled to present additional evidence of intellectual disability. Jones is correct that in light of Hall, he would likely now meet the first prong of the intellectual disability standard — significantly subaverage general intellectual functioning. But as we noted in 2007, each of the IQ tests in this case was administered after Jones was shot in the head during the commission of the murders. There was testimony in 2006 that Jones’s intelligence was probably higher before the head injury. Even Jones’s expert testified that the head injury “result[ed] in impairment of Jones’s ability to concentrate and remain focused, and negatively affect[ed] his perceptual processes.” Id. at 329. Jones is not entitled to a new hearing in order to present additional evidence of intellectual disability because he was already provided the opportunity to. present evidence regarding each- of the three prongs of the intellectual disability standard in 2006, and Hall does not change the fact that Jones failed to establish that he meets the second or third prong. As we have recently reiterated, “If the defendant fails to prove any one of these components, the defendant will not be found to be intellectually disabled.” Wright v. State, 213 So.3d 881, 895 (Fla. 2017); Salazar v. State, 188 So.3d 799, 812 (Fla. 2016); see also Wright, 213 So.3d at 898 (holding that Wright failed to prove that he is of subav-erage intellectual functioning and “[fjor this reason alone, Wright does not qualify as intellectually disabled under Florida law”). '

Jones also asserts that the .trial court in 2006 and this Court in 2007 improperly concluded that he did not meet the adaptive deficits prong because those determinations were based on reports from corrections officers or other observations of his functioning in prison,' which are not valid indicators of adaptive behavior. This claim is procedurally barred and meritless. We rejected this argument in 2007, finding that the conclusion that Jones did not meet the adaptive deficits prong was not solely based on observations of Jones’s functioning in prison. Jones, 966 So.2d at 327-28. Hall does not disturb the previous finding that Jones failed to establish that he has concurrent adaptive deficits, and Jones is not entitled to relitigate this claim.

Finally, Jones argues that he is entitled to relief in light of another recent United States Supreme Court decision, Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). But we have determined that Hurst is not retroactive to cases that were final before the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Asay v. State, 210 So.3d 1, 11 (Fla. 2016), cert. denied, — U.S. -, 138 S.Ct. 41, 198 L.Ed.2d 769, 2017 WL 1807588 (2017). Because Jones’s convictions and sentences became final in 1995, he is not entitled to relief under Hurst.

For these reasons, we affirm the circuit court’s order denying Jones’s fourth successive motion for postconviction relief and deny relief based on Hurst.

It is so ordered.

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

CANADY and POLSTON, JJ., concur in result.

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

LAWSON, J.,

concurring in result.

I fully agree with the majority’s explanation as to why Hall does not open the door for Jones to relitigate his intellectual disability claim, and I concur in the result of the majority’s decision that Jones is not entitled to Hurst relief. See Okafor v. State, 255 So.3d 768, 775-76, 2017 WL 2481266, at *6 (Fla. June 8, 2017) (Lawson, J., concurring specially).


author: John A. Tomasino Clerk,

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: D.L.
    CASE NO.: SC17-2024
    Supreme Court of Florida.
    NOVEMBER 29, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and D.L. shall be admitted to The Florida Bar subject to the following conditions:

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

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

(a) continue to consult with Melissa Jackson, M.D., or other licensed mental health provider, at least, quarterly or more frequently as his mental health provider deems necessary;

(b) follow promptly, diligently and completely all instructions by Ms mental health provider including-the taMng of any medication in the recommended manner as may be prescribed by his-mental health provider; ■

(c) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the applicant’s continuing ability to éngage in the active practice of law;

(d) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior- rescheduling; and

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

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

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

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

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

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

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

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

■ A True Copy Test:

John A. Tomasino Clerk,

Supreme Court


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: A.H.C.
    CASE NO.: SC17-2016
    Supreme Court of Florida.
    NOVEMBER 29, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and A.H.C. shall be admitted to The Florida Bar subject to the following conditions:

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

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

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on April 7, 2017, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcohol-ies/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;
(e) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening texts determined to be appropriate by Florida Lawyers Assistance, Inc.;
(f) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.; and
(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above.

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

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

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

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

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

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

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

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

■ A True Copy Test: ,

John A. Tomasino Clerk,

Supreme Court


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the RULES OF the SUPREME COURT RELATING TO ADMISSIONS TO the BAR.
    No. SC16-2252
    Supreme Court of Florida.
    [November 30, 2017]
    Elizabeth J. Walters, Chair, Scott N. Richardson, Past Chair, Michele A. Gavag-ni, Executive Director, and James T. Al-mon, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida, for Petitioner.
    Leticia M. Diaz, Dean, Barry University — Dwayne 0. Andreas School of Law, Orlando, Florida; Angela Felecia Epps, Dean, Florida A. & M University College of Law, Orlando, Florida; Scott DeVito, Dean, Florida Coastal School of Law, Jacksonville, Florida; Tawia Ansah, Acting Dean, R. Alexander Acosta, Past Dean, Florida International University College of Law, Miami, Florida; Jon M. Garon, Dean, Nova Southeastern University — Shepard Broad College of Law, Fort Lauderdale, Florida; Christopher M. Pietruszkiewicz, Dean, Stetson University College of Law, Gulfport, Florida; Alfredo García, J.D., Dean, St. Thomas University School of Law, Miami Gardens, Florida; Laura Ann Rosenbury, Dean, University of Florida— Fredric G. Levin College of Law, Gaines-ville, Florida; Patricia D. White, Dean, University of Miami School of Law, Coral Gables, Florida; and Timothy P. Chinaris, Nashville, Tennessee, Responding with Comments •
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the •Rules of the Supreme Court Relating to Admissions to the Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

BACKGROUND

The Florida Board of Bar Examiners (Board) has filed a petition to amend the Rules of the Supreme'Court Relating t.o Admissions to- the Bar (Rules) 3-14 (Bar Application and Supporting Documentation), 3-23 (Specifications), 4-13.4 (Alternative Method of Educational Qualification), and 4-23.1 (Transfer of Score). After submission to the Court, .the proposed amendments were published for comment in The Florida Bar News. The deans of multiple Florida law schools filed a comment supporting the proposed amendments to rule 4-23.1. Florida Bar member, Timothy P. Chinaris, filed a comment supporting the proposed amendments to rules 3-14, 3-23, and 4-23.1.

Upon consideration of the Board’s petition and the comments filed, we adopt the amendments as proposed by the Board.

AMENDMENTS

Rule 3-14 (Bar Application and Supporting Documentation)

In its petition, the Board explains that it is developing an applicant portal to allow all communications between the Board and applicants for admission to The Florida Bar to be done electronically. Thus, under rule 3-14 as amended, in lieu of a notarized paper copy of the bar application, an e-signature is required and the jurat on the application is modified to reflect this. Further, rule 3-14.1 (Filed as an Applicant) and rule 3-14.2 (Filed as a Registrant) are amended to delete the requirement that the bar application be “sworn,” and rule 3-14.1(f) is amended to require, instead of an “affidavit .,, attesting that the applicant has read Chapter 4, Rules of Professional Conduct, and Chapter 5, Rules Regulating Trust Accounts,” an online form “acknowledgement of compliance ... declaring” the same. The name of this form is changed to “Acknowledgement of Compliance,” and the statement therein is amended to reference an e-signature PIN, rather than notarization. Rule 3-14.3 (Defective Applications) is amended to remove a reference to notarization.

Rule 3-23 (Specifications)

Similar to the amendments to rule 3-14, rule 3-23 is amended in order to accommodate electronic communication and submission of documents. Currently, Specifications are served on applicants by certified mail, and a sworn and notarized response, with four copies, is required to be provided to the Board by mail. The Board states that it wishes to allow the service of Specifications by both mail and electronically through the portal. Rule 3-23 is amended to replace the requirement that a response to Specifications be “filed in the form of a sworn, notarized answer,” with the requirement that it be “served in the form of a verified answer.” This will allow applicants to serve the answer on the Board through the portal, without having to mail the original to the Board.

Rule 4-13.4 (Alternative Method of Educational Qualification)

This rule sets forth the requirements for an applicant who has not graduated from an accredited law school and who wishes to use the alternative method of establishing educational qualifications to sit for the bar examination. Currently, the rule covers those engaged in the practice of law for at least ten years in the District of Columbia, in other states, or in the federal courts of the United States or its territories, possessions, or protectorates. This rule is amended to clarify that federal courts are not limited to those courts established under Article III of the United States Constitution. The Board states that this clarification will ensure that the work product of an attorney who practiced in non-Article III federal courts, such as immigration courts, could be considered by the Board. This rule is also amended to expressly disqualify applicants who have been suspended or disbarred from the practice of law in the ten years prior to applying for admission to The Florida Bar. The Board is of the opinion, and we agree, that any such applicant does not meet the requirement in rale 4-13.4(c) that an applicant under the alternative method must be “a lawyer of high ability whose reputation for professional competence is above reproach.”

4-23.1 (Transfer of Score)

Rule 4-23.1 is amended to allow an applicant to transfer a score obtained on the Multistate Bar Examination (MBE) in another state, as long as the transferred scaled score meets the requirements of rule 4-26.2 (Pass/Fail Line) — the scaled score would have to be 136 or higher under the individual method — and as long as it is obtained within the timeframe required under rule 4-18.1 — within 25 months of the date of the administration of any part of the examination that is passed. In 1983, we adopted the current rule prohibiting the transfer of scores because at that time, there were inconsistencies in the administration and scoring of the MBE administered in other jurisdictions. However, since then, the National Conference of Bar Examiners has established very specific guidelines and procedures for the administration of the MBE, making the transfer of scores feasible and acceptable.

CONCLUSION

Accordingly, the Rules of the Supreme Court Relating to Admissions to the Bar are hereby amended, as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struek-through type. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

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

APPENDIX

3-14.1 Filed as an Applicant. Applicants are required to file complete and swem-Bar Applications. Transcripts required by this rule must be sent directly to the board from the educational institutions. The application will not be deemed complete until all of the following items have been received by the board:

(a) [NO CHANGE]

(b)[NO CHANGE]

(c) [NO CHANGE]

(d)[NO CHANGE]

(e) [NO CHANGE]

(f) an affidavitacknowledgment of compliance, filed on a form available Rules of Professional Conduct, and Chapter 5, Rules Regulating Trust Accounts, of the Rules Regulating The Florida Bar; and

(g) [NO CHANGE]

3-14.2 Filed as a Registrant. A registrant is required to file a complete and swemRegistrant Bar Application. Transcripts required by this rule must be sent directly to the board from the educational institutions, The application will not be deemed complete until all of the following items have been received by the board:

3-14.3 Defective Applications. A Bar Application or Registrant Bar Application initially filed in a defective condition (e.g., -without- notarization; without supporting documents? or having blank or incomplete items on the application) may delay the initiation or the processing of the background investigation. A Bar Application or Registrant Bar Application filed in a defective condition will be accepted, but a fee of $150 will be assessed.

3-23 Specifications. Specifications are formal charges filed in those cases where the board has cause to believe that the applicant or registrant is not qualified for admission to The Florida Bar. If the board votes to prepare and file Specifications, the Specifications are served on the applicant or registrant. The response to Specifications must be íüeéserved in the form of a verifiedawonu notarized answer to the Specifications within 3025 days ■fro-m-receiptof service of the Specifications.

4-13.4 Alternative Method of Educational Qualification.

(a) [NO CHANGE] •

(1) evidence as the board may require that the applicant was engaged in the practice of law for at least 10 years in the District of Columbia, in other states of the United States of America, or in federal courts of the United States or its territories, possessions, or protectorates (federal courts are not limited to Article III Courts! aad-was in good standing at the bar of the jurisdictions in which the applicant practiced, and was not suspended or disbarred from the practice of law in the 10 years prior to applying for admission to The Florida Bar:' and

(2) [NO CHANGE]

4-23;l Transfer of Score. A score achieved by an applicant on the Multistate Bar Examination administered in a jurisdiction other than the State of Florida will net-fee-transferrad-to or recognized bv the-boardbe accepted by the board if the applicant achieved the required scaled score under rule 4-26.2, under g* a S' a £. Ft 1


author: Pm CURIAM..

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-04.
    No. SC17-1713
    Supreme Court of Florida.
    [November 30, 2017]
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liason, Office of the State Courts Administrator, Tallahassee, Florida for Petitioner
   Pm CURIAM..

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

The Committee proposes amending the following existing instructions: 10,8 (Threat to Throw, Place, Project, or Discharge any Destructive Device); 14.4 (Retail Theft); 25.15(a) (Retail Sale of Drug Paraphernalia); and 28.11 (Driving While License Suspended, Revoked or Canceled with Knowledge). In addition, the Committee proposes deleting instruction 10.4 (Persons Engaged in Criminal Offense Having Weapon (Previous. Conviction)). No comments were received by the Committee pertaining to the proposals to instructions 10.4 and 10.8. Comments pertaining to the remaining proposals, however, were received from the Florida Association of Criminal Defense Lawyers and the Florida Public Defender Association. The Committee made responsive changes to the proposals to amend instructions 14.4, 25.15(a), and 28.11. The Court did not publish the proposals after they were filed. The rhore significant amendments to the instructions are discussed below. '

Criminal jury instruction 10.4 (Persons Engaged in Criminal Offense Having Weapon (Previous Conviction)), currently provides as follows: “It is error to inform the jury of a prior conviction. Therefore, do not read the allegation of prior convictions or send the information or indictment into the jury room. State of Florida v. Harris, 356 So.2d 315 (Fla. 1978).” While the instruction purports to cover section 790.07(4), Florida Statutes (2017) (Persons engaged in criminal offense, having weapons), subsection (4) provides instead:

.Whoever, having previously been convicted of a violation of subsection (1) or subsection (2) and, subsequent to such conviction, displays, uses, threatens, or attempts to use any weapon, firearm, or electric weapon or device, carries a concealed weapon, or carries a concealed firearm while committing or attempting to commit any felony or while under indictment is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Sentence shall not be suspended or deferred under the provisions of this subsection.

§ 790.07(4), Fla. Stat. (2017). Because instruction 10.4 does not pertain to section 790.07(4), we agree with the Committee and delete both the instruction number and the body of the instruction.

Next, instruction 10.8 is amended to make clear that the offense as charged under section 790.162,' Florida Statutes (2017) (Threat to throw, project, place, or discharge 'any destructive device, felony; penalty), requires that the threat convey an intent to do bodily harm or property damage, not necessarily that the defendant had the intent to actually do such harm or damage, that the harm or damage was actually possible, or that there was an actual destructive device; citing Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1983), and Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981).

Instruction 14.4 (Retail Theft) has , not been amended since it was adopted in 1981, and no longer properly instructs upon the offense defined under section 812.015, Florida Statutes , (2017) (Retail and farm theft; transit fare evasion; mandatory fine;, alternative punishment; detention and arrest; exemption from liability for false arrest; resisting arrest; penalties). Accordingly, instruction 14.4 is amended to include four, rather than two, elements to define the offense. The first two elements are based upon the defihition of “retail theft” under ■ section 812.015(l)(d). Next, the third element includes all the circumstances set forth in section, 812.015(8)(a)-(d). Lastly, the fourth element captures the requirement in section 812.015(8), that the property must be valued at $300 or more. Additional changes to instruction 14.4 are also made as reflected in the appendix to this opinion.

Existing criminal jury instructions 10.8, 14.4, 25.15(a), and 28.11, as proposed by the Committee, and as set forth in the appendix to this opinion, are hereby authorized for publication and..use, while instruction 10.4 is hereby removed. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect, only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes Anal.

It is so ordered.

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

APPENDIX

10,4 PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON (PREVIOUS-CONVICTION)

§ 790.07(4), Fla,Stat.

I-t-is emr to-inform the jury of a prior eomdetion. Therefore, do not read the allegation of prior -convietions — or send-4he information ov-indictment into the jury room*-State-of Florida v. Harris, 356 So.2d 3M-(Fla. 1978),

10.8 THREAT TO THROW, PLACE, PROJECT, OR DISCHARGE ANY DESTRUCTIVE DEVICE

§ 790.162, Fla._Stat.

To prove the crime of (crime charged)Threat to [Throw] [Place] [Project] [Discharge] Any Destructive Device, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) threatened to [throw] [place] [project] [discharge] a destructive device.

[throw]

[place]

[project]

[discharge]

a-destructive device, .

2. [He] [She] did so withThe threat conveyed an intent to do [bodily harm to] [damage to the property of] any person.

[bodily harm to any-person],

[damage to the--property of any person].

Give if requested, Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1983); Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981).

It is. not necessary for the State to prove the defendant had the actual intent to cause [harm] [or] [damage], or that [he] [she] had the ability to carry out the threat, or that there was an actual destructive device.

Definition. Adapt as appropriate. § 790.00ig), Fla. Stat.

A “destructive device” is-defined- as (adapt from § 790.001(4), Fla.Stat.,' as required by the allegations)means any bomb, grenade, mine, rocket, missile, pi-pebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

“Destructive device” does not include:

(a) A device which is not designed, redesigned, used, or intended for use as a weapon;

(b) Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device;

(c) Any shotgun other than a short-barreled shotgun; or

(d) Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

Lesser Included Offenses

Cqmment

This instruction was adopted in 1981 and was amended in 1989 and 2017.

14.4 RETAIL THEFT

§ 812.015(48), Fla._Stat.

To prove the crime of Retail Theft, the State must prove the following twoL our elements beyond a reasonable doubt:

1. (Defendant) knowingly:

Give a, b, c, and/or d as applicable.

a. ftook possession of or carried away [merchandise] [property] [money] [negotiable documents],

b. faltered or removed a [label] [universal’ product code] or [price tag] from merchandise].

c. ftransferred merchandise from one container to another],

d. fremoved a shopping cart from a merchant’s premises].

did so with the intent to deprive the a merchant of possession, use, benefit, or full retail value of the [merchandise] [property] [money] [negotiable documents] [shopping «art].

Give a, b, o, and/or d as applicable.

3. (Defendant),

a. individually, or in concert with one or more other persons, coordinated the activities of one or more individuals in committing the offense.

b. committed theft from more than one location within a 48-hour period.

c. acted in concert with one or more individuals within one or more establishments to distract the merchant, merchant’s employee, or law enforcement officer in order to carry out the offense, or acted in other ways to coordinate efforts to carry out the offense.

d. purchased merchandise in a package or box that [he] [she] knew contained merchandise other than, or in addition to, the merchandise purported to be contained in the package or box.

4. The value of the [merchandise] [property] [money] [negotiable documents] was $300 or more.

Give if applicable.

§ 812,015(8)(a) and (8)(b), Fla. Stat.

If you find that the defendant [acted in concert with one or more other persons and coordinated the activities of one or more individuals in committing a Retail Theft] [committed theft from more than one location within a 48-hour period], the amount of each individual theft is aggregated to determine the value of the property stolen.

The ft of an Instrument.

In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible.

In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege, or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

Definitions.

§ 812.015(l)(a), Fla. Stat.

“-Merchandise-” means any personal property, capable of manual delivery, displayed, held or offered for retail sale by a merchant. .

§ 812.015(l)(b), Fla. Stat.

“-Merchant^” means an owner or operator, and or the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises (or apparatus) or apparatus used for retail purchase or sale of any merchandise.

§ 812.015(l)(c), Fla. Stat.

“-Value of merchandise-” means the sale price of the merchandise at the time it was stolen or otherwise removed, depriving the owner of her or his lawful right to ownership and sale of said item.

Optional Definitions. Shaw v. State, 510 So.2d 349 (Fla. 2d DCA 1987). '“-Knowingly-” means with actual knowledge and understanding of the facts or the truth.

“-Knowingly-” means an act done voluntarily and intentionally and not because of mistake or accident or other innocent reason. (Devitt--& — Bia&kmar— Federal Jury-Fractice and Instructions,

Lesser Included Offenses

■No-lesser includod-offenses have-been identified for this "Offense.

Comments

*Under the Retail Theft statute, the “value” of the property is the price stated on the price tag affixed to the item at the time it was stolen. F.T. v. State, 146 So.3d 1270 (Fla. 3d DCA 2014). This determination of “value” may be different than “value” as defined in the theft statute.

There is no misdemeanor Retail Theft crime. There is, however, a seconddegree felony crime of Retail Theft for, a person who commits Retail Theft and the property stolen had a value in excess of $3,000 or for a person who commits Retail Theft and has a prior conviction for Retail Theft. See § 812.015(9), Fla. Stat, As of August 2017, there was no case law that determined whether the jury must find the existence of the prior conviction in a bifurcated proceeding or whether that finding may be made by the sentencing judge. There was also no case law that decided whether a “conviction” includes a withhold of adjudication.

This instruction was adopted in 1981 and amended in 2017.

25.15(a) RETAIL SALE OF DRUG PARAPHERNALIA

§ 893.147(6), Fla. Stat.

To prove the crime of Retail Sale of Drug Paraphernalia, the State must prove the following two- elements beyond a reasonable doubt:

1. (Defendant) knowingly and willfully [sold] [offered for sale] at retail one or more objects defined as drug paraphernalia.

2. The objectts] [was] [were]:

Give as applicable. § 89S.H5(12)(a)-(c), (р)-('m), Fla. Stat.

(a) [a] metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe[s].

(b) [a] water pipe[s].

(с) [a] carburetion tube[s] and device[s],

(d) [a] chamber pipe[s].

(e) [a] carburetor pipe[s].

(f) [an] electric pipe[s],

(g) [an] air-driven pipe[s]. .

(h) [a] chillum[s],

(i) [a] bong[s].

(j) [an] ice pipe[s] or [a] chiller[s].

Definitions.

Optional definitions of knowingly.

“Knowingly” means with , actual knowledge and understanding of the facts or the truth.

“Knowingly” means an act done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

“Willfully” means intentionally, knowingly, and purposely.

The term “drug paraphernalia” means an object used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashishy-hashish-oiVor- nitrous oxide [a controlled substance] [a substance described in § 877.111(1), Florida Statutes] into the human body.

The Court instructs you that (name of substance) is a [controlled substance] [substance listed in § 877.111(1), Florida Statutes].

Relevant factors, § 893. H6, Fla. Stat.

In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. The proximity of the object, in time and space, to a direct violation of the drug laws.

3. The proximity, of the object to controlled substances.

4. The existence of any residue of controlled substances on the object.

5. Evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of the drug laws. The innocence of an owner, or of anyone in control of the object, as to a direct violation of the drug laws shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

6. Instructions, oral or written, provided with the object concerning its use.

7. Descriptive materials accompanying the object which explain or depict its use.

8. Any advertising concerning its use.

9. The manner in which the object is displayed for sale.

10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

11. Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

12. The existence and scope of legitimate uses for the object in the community.

13. Expert testimony concerning its use.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

It is unclear whether the exception for pipes primarily made of briar, meerschaum, clay, or corn cob is an element or an affirmative defense. In the absence of case law, trial judges will have to make that determination if the issue arises.

The crime in § 893.147(6)(a), Fla. Stat., is reclassified from a first-degree misdemeanor to a third-degree felony upon a second or subsequent violation. See § 893.147(6)(b), Fla. Stat. As of August 2017, it is unclear whether a prior violation will be treated as an element of the crime which must be proven to the jury or as a sentencing factor which may be proven to the judge. If treated as an element, it ft is error to inform the jury of a prior violation of Retail Sale of Drug Paraphernalia. Therefore, if the information or indictment contains an allegation of one or more prior violations, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of a Retail Sale of Drug Paraphernalia, the historical fact of a previous violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla. 2000).

This instruction was adopted in 2014 [143 So.3d 893] and amended in 2017.

28.11 DRIVING WHILE LICENSE SUSPENDED, REVOKED OR CANCELED WITH KNOWLEDGE

§ 322.34(2), Fla. Stat.

To prove the crime of Driving While [License] [Driving Privilege] iswas [Suspended] [Revoked] [Canceled], the State must prove the following three elements beyond a reasonable doubt:

Í. (Defendant) drove a motor vehicle upon a highway in this state.

2. At thethat time, [[his] [her]] [[license] [driving privilege]] was [suspended] [revoked] [canceled].

3. At thethat time (defendant)-dr-ove- -a motor vehicle upon a highway-in-this

state, (defendant) knew that [[his] [her]] [[license] [driving privilege]] was [suspended] [revoked] [canceled].

Whether (defendant) knew of the [suspension] [revocation] [cancellation] is a question to be determined by you from the evidence.

Give as applicable. See § 322.251(1), (2), and§ 322.34,(2), (3),(4), Fla. Stat.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was given by personal delivery is proof that such notice was given.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was deposited in United States mail, first class, postage prepaid, addressed to the licensee at [his][her] last known mailing address furnished to the department, is proof that such notice was sent.

If you find that (defendant) had been previously cited for driving while license [suspended] [revoked] [canceled] and [his] [her] license had not been reinstated, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) admitted to knowing of the [suspension] [revocation] [cancellation], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) had received a traffic citation that contained a provision notifying (defendant) that [his] [her] license had been suspended, revoked, or canceled, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

Do not give if the suspension was for failure to pay a traffic fine or for a financial responsibility violation. See § 322.34(2) and § 322.251(1), (2), Fla. Stat.

If you find that (defendant) had received a [judgment] [order] rendered by [a court] [an adjudicatory body] which contained a provision notifying, (defendant) that [his] [her] license had been [suspended] [revoked] [canceled], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that the records of the Department of Highway Safety and Motor Vehicles include a [judgment] [order] rendered by [a court] [an adjudicatory body] which contains a provision notifying (defendant) that [his] [her] license had been [suspended], [revoked] [canceled], you are permitted-to-assume-may- - conclude -that- ■ •(defendant) — knew [his] [her] license was [suspended] [revoked] [canceled]. This — presumption, accept or reject the presuroptioninference depénding upon the circumstances of the crime and the facts presented at trial.

Definition 's, Give if applicable.

§ 322.01(15), Fla, Stat,

“Drive” means to operate [or be in actual physical control of] a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01(27), Fla. Stat,

“Motor vehicle” means any vehicle which is self-propelled, including a “moped,” but not any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.

§ 322,01(39), Fla. Stat.; State v. Tucker, 761 So.2d 1248 (Fla. 2d DCA 2000).

“Street or Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic. [A privately owned parking lot, that is open to public use by vehicles, is considered to be a highway.]

§ 322.251, Fla. Stat.

“Notice” means personal delivery or deposit in the United States mail, first class, postage prepaid, addressed to the defendant at [his] [her] last known address furnished to the Department of Highway Safety and Motor Vehicles. Mailing by the department shall constitute notification.

. Gpti&nalBe0mtion&-

§ 322.01(W, Fla. Stat.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

§ 322.01(36), Fla, Stat.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

§ 322.01(5), Fla. Stat.

“Canceled” means that , a license has been declared void and terminated.

The option of “on a motor vehicle” pertains to motor vehicles such as motorcycles and mopeds.

“Actual physical control” of a motor vehicle means the defendant must be physically in [or on] the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [heHshe] is actually operating the motor vehicle at the time.

§ .mMtWrPtarStotr

FaiMre--ty-4he~defenáwü to receive the mailed-order-shaü not affect or-stay-the effective-date-o-r-temv-qf-the^ [cancellation],. (suspension]).-[^vocation]- of-ihe — defendant!&-dnwing~prmileger

Lesser Included Offenses

DRIVING WHILE LICENSE SUSPENDED, REVOKED OR CANCELED, WITH KNOWLEDGE — § 322.34 CATEGORY ONE CATEGORY TWO FLA. STAT INS. NO, No Valid Driver’s • License 322.03 28.9 Attempt 777.04(1) 5.1

Comments

Pursuant to § 322.251(1), Florida Statutes, failure to receive the mailed order shall not affect or' stay the effective date or term of the cancellation, suspension, or revocation of the defendant’s driving privilege.

The crime in § 322,34(2), Florida Statutes, is enhanced based on the number of prior violations. Unless the prior violation was disposed of pursuant to § 318.14(10), Florida Statutes, a withhold of adjudication constitutes a prior violation. Raulerson v. State, 763 So.2d 285 (Fla. 2000). As of August 2017, it is unclear whether the existence of a prior violation will be treated as an element that must be proven to the jury in a bifurcated proceeding or as a sentencing factor that can be proven to the judge. If treated as an element, it is error to inform the jury of a prior violation. Therefore, if the information or indictment contains an allegation of one or more prior violations, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Driving with License Suspended, Revoked, or Canceled, the historical fact of a previous violation shall be determined beyond a reasonable doubt in a bifurcated, proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla. 2000).

This instruction was adopted in 1981, and amended in 2007 [958 So.2d 361], and 2013 [131 So.3d 692], and 2017.

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www.floridasupremecourt.org/jury_instruc-tions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.