text:
    IN RE: AMENDMENTS TO the FLORIDA RULES OF TRAFFIC COURT.
    No. SC18-18
    Supreme Court of Florida.
    August 30, 2018
    Anne Marie Gennusa, Chair, St. Augustine, Florida, Sergio Cruz, Past Chair, Traffic Court Rules Committee, Orlando, Florida, Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida; and Steven D. Rubin, Boca Raton, Florida, and Sara Blumberg, Delray Beach, Florida, Responding with Comments
   PER CURIAM.

We have for consideration the regular-cycle report of proposed amendments to the Florida Rules of Traffic Court filed by The Florida Bar's Traffic Court Rules Committee (Committee). See Fla. R. Jud. Admin. 2.140(b)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const. We adopt the majority of the amendments as proposed by the Committee, including the deletion of rule 6.580 (Completion of Driver School; Conditions) as outdated. However, as discussed herein, we decline to adopt most of the Committee's proposed amendments to rule 6.140 (Conduct of Trial), and adopt the proposed amendments to rule 6.200(b) (Pleas and Affidavits of Defense; Written Pleas of Guilty or Nolo Contendere) with modifications.

BACKGROUND

The Committee proposes amendments to Florida Rules of Traffic Court 6.010 (Scope) ; 6.020 (Purpose and Construction); 6.080 (Improper Disposition of Traffic Ticket); 6.090 (Direct and Indirect Criminal Contempt); 6.140 (Conduct of Trial); 6.180 (Sentencing Repeat Offenders); 6.190 (Procedure on Failure to Appear; Warrant; Notice); 6.200 (Pleas and Affidavits of Defense); 6.320 (Complaint; Summons; Forms; Use); 6.330 (Election to Attend Traffic School); 6.360 (Enlargement of Time); 6.455 (Amendments); 6.490 (Correction and Reduction of Penalty); 6.500 (Pronouncement and Entry of Penalty; Penalizing Official); 6.510 (Determination that Infraction was not Committed; Bond Refunded); 6.520 (Effect of Granting New Hearing); 6.530 (Imposition of Penalty Before or After Motion Filed); 6.550 (Official May Grant New Hearing); 6.560 (Conviction of Traffic Infraction); 6.570 (Reporting Action Requiring Suspension of Driver License); 6.575 (Retention of Case Files); 6.580 (Completion of Driver School; Conditions); 6.590 (Failure to Complete Driver School; Reinstatement of Driver License); 6.600 (Failure to Appear or Pay Civil Penalty; Reinstatement of Driver License); 6.610 (Failure to Fulfill Penalty Imposed After a Hearing; Reinstatement of Driver License); 6.620 (Failure to Appear for Mandatory Hearing; Reinstatement of Driver License); and 6.630 (Civil Traffic Infraction Hearing Officer Program; Traffic Hearing Officers).

Consistent with Florida Rule of Judicial Administration 2.140(b)(2), the Committee published the proposals for comment before filing them with the Court. The Committee received comments, made responsive amendments to its proposals, and republished the proposals for comment. The proposals were approved unanimously by the Board of Governors of The Florida Bar and by a majority of the Committee. The Court also published the proposals for comment and received two comments. One comment was from Civil Traffic Hearing Officers Steven D. Rubin and Sarah Blumberg opposing a number of the Committee's proposals and proposing alternative amendments to several of the rules. The other comment was from the Florida Public Defender Association (FPDA) in support of the Committee's proposed amendment to rule 6.490(b)(1) (Correction and Reduction of Penalty; Reduction of Penalty). The Committee filed a response addressing the comments and declining to make any revisions to its proposals.

AMENDMENTS

After considering the proposed amendments, the comments filed, and the Committee's response to the comments, we adopt all of the proposed amendments, except the Committee's proposed amendment to the text of rule 6.140 (Conduct of Trial). We discuss only the proposed amendments to rule 6.140, most of which we decline to adopt, rule 6.200(b) (Pleas and Affidavits of Defense; Written Pleas of Guilty or Nolo Contendere), which we adopt as modified herein, and rule 6.330(b) (Election to Attend Traffic School).

Rule 6.140 (Conduct of Trial) provides that "[a]ll trials and hearings shall be held in open court and shall be conducted in an orderly manner according to law and applicable rules." The rule also provides that "[a]ll proceedings for the trial of traffic cases shall be held in a place suitable for the purpose." The Committee proposes rephrasing rule 6.140 to provide that "[w]hen necessary, traffic proceedings may be held in a place suitable for the purpose." The Committee explains that its proposed amendment to the rule is for clarity and to allow flexibility to hold hearings outside of a courtroom when necessary. However, the rule does not currently limit traffic proceedings to a courtroom. Rather, the rule requires that traffic proceedings be held in a "place suitable for the purpose," which may be a place other than a courtroom, when necessary. Accordingly, we find that no amendment to the text of rule 6.140 is necessary and decline to adopt that proposed amendment. However, we adopt the Committee's proposal to rename the rule 6.140 "Committee Comments" as "Committee Notes."

Rule 6.200(b) (Pleas and Affidavits of Defense; Written Pleas of Guilty or Nolo Contendere) provides in pertinent part that, subject to the approval of the court, written pleas of guilty or nolo contendere may be entered in criminal traffic offenses that are not designated felonies and defendants may be sentenced based on those pleas. The Committee proposes amending the rule to remove "outdated language" and to improve clarity for the reader. We adopt amendments to rule 6.200(b) with the modifications suggested by commenters, Civil Traffic Hearing Officers Steven D. Rubin and Sarah Blumberg. As amended, the rule will clearly reflect the proper sequence of events in criminal traffic offense proceedings.

Rule 6.330(b) provides that a "defendant who is sentenced to or elects to attend a driver improvement school shall have the right to attend an approved school in the location of the defendant's choice." Importantly, the Committee proposes adding the following phrase to the end of the above sentence: "including the internet when the elected or court-ordered driver improvement course is provided online." The commenters, Civil Traffic Hearing Officers Steven D. Rubin and Sarah Blumberg, expressed concern with the additional provision, explaining that it could limit the court's sentencing discretion. We thank the commenters for their thoughtful comments; however, we defer to the Committee, which was overwhelmingly in favor of the amendments, and adopt the amendments to the rule as proposed.

CONCLUSION

Accordingly, we amend the Florida Rules of Traffic Court as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2019, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 6.010. SCOPE

(a) Application. These rules, cited as "Florida Rules of Traffic Court" and abbreviated as "Fla. R. Traf. Ct.," shall take effect at 12:00 a.m. on January 1, 1975. These rules govern practice and procedure in any traffic case and specifically apply to practice and procedure in county courts and before civil traffic infraction hearing officers.

(b) Part III. The rules under Part III of these rules apply to all criminal traffic offenses,whether prosecuted in the name of the state or any subdivision of it.

(c) [No change]

Committee Notes

[No change]

RULE 6.020. PURPOSE AND CONSTRUCTION

These rules shall be construed to secure simplicity and uniformity in procedure, fairness in administration, and the elimination of unnecessary expense and delay.

RULE 6.080. IMPROPER DISPOSITION OF TRAFFIC TICKET

Any person who solicits or aids in the disposition of a traffic complaint or summons in any manner other than that authorized bythe courtlaw or who willfully violates any provision of these rules shall be proceeded against for criminal contempt(in the manner provided in these rules). However, a traffic hearing officer shall not have the power to hold any person in contempt of court, but shall be permitted to file a verified motion for order of contempt before any state trial court judge of the same county in which the alleged contempt occurred.

- 7 -Such matter shall be handled as an indirect contempt of court pursuant to the provisions of Florida Rule of Criminal Procedure 3.840.

Committee Notes

[No change]

RULE 6.090. DIRECT AND INDIRECT CRIMINAL CONTEMPT

Direct and indirect criminal contempt shall be proceeded upon in the same manner as in the Florida Rules of CriminalRules ofProcedure.

Committee Comments Notes

[No change]

RULE 6.140. CONDUCT OF TRIAL

[No change]

Committee Comments Notes

[No change]

RULE 6.180. SENTENCING REPEAT OFFENDERS

(a) Defendant's Rights. A defendant, alleged to have a prior conviction for a criminal traffic offense, shall haveathe right to remain silent concerning any prior conviction at the time of plea or sentence.

(b) - (c) [No change]

Committee Notes

1988 Adoption. Rule 6.180 is new and is designed to codify existing procedures in DUI cases. The rule sets forth what has become known as a "Meehan plea."Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981).

- 8 -1992 Amendment. [No change]

RULE 6.190. PROCEDURE ON FAILURE TO APPEAR; WARRANT; NOTICE

(a)-(b) [No change]

(c) Nonresident of State; Failure to Appear or Answer Summons. If a defendant is not a resident of this state and fails to appear or answer a traffic complaint, the clerk of the court or the court shall send notice to the defendant at the address stated in the complaint and to the department. The department shall send notice to the license issuing agency in the defendant's home state. If the defendant fails to appear or answer within 30 days after notice is sent to the defendant, the court shall place the case in an inactive file or file of cases disposed of, subject to being reopened if thereafter the defendant appears or answers or a warrant is issued and served.

(d) [No change]

RULE 6.200. PLEAS AND AFFIDAVITS OF DEFENSE

(a) [No change]

(b) Written Pleas of Guilty or Nolo Contendere. Subject to the approval of the court, written pleas of guilty or nolo contendere may be entered in criminal traffic offensesnot designated felonies under the laws of the state, and sentence imposed thereon.

(c) [No change]

RULE 6.320. COMPLAINT; SUMMONS; FORMS; USE

All citations for traffic infractions shall be by uniform traffic citation as provided in section 316.650, Florida Statutes, or other applicable statutes or by

- 9 -affidavit.If the complaint is made by affidavit a uniform traffic citation shall be prepared by the clerk and submitted to the department.

RULE 6.330. ELECTION TO ATTEND TRAFFIC SCHOOL A DRIVER IMPROVEMENT COURSE

(a) Attendance at School a Driver Improvement Course . Unless a mandatory hearing is required, or the defendant appears at a hearing before an official, a defendant who does not hold a commercial driver license or commercial learner permit may elect to attend a driver improvementschoolcourse pursuant to section 318.14(9), Florida Statutes, within 30 days of receiving a citation or, if a hearing was requested, at any time before trial.Attendance at a driver improvement school shall not operate to waive the law enforcement education assessments under section 943.25, Florida Statutes. A Pursuant to this rule, any defendant electing to attend a driver improvementschool course under section 318.14(9), Florida Statutes, willreceive a withheld have adjudication withheld and not be assessed points.

(b) Location of School Course . A defendant who is sentenced to or elects to attend a driver improvementschool course shall have the right to attend an approvedschool course in the location of the defendant's choice,including the internet when the elected or court-ordered driver improvement course is provided online.

Committee Notes

[No change]

- 10 -RULE 6.360. ENLARGEMENT OF TIME

(a) Procedure. Whenby these rules or by a notice given thereunder or by order of an official an act is required, or allowed to be done at or within a specified time pursuant to either a court order or these rules, the official, for good cause shown,at any time, in the official's discretion may,at any time:

(1) order the period enlarged if the requesttherefor is made before the expiration of the period originally prescribed or as extended by a previous order; or

(2) [No change]

(b) [No change]

RULE 6.455. AMENDMENTS

(a) Non-Substantive Amendments. The charging document may be amended at any time by the issuing officerin open court at the time of a scheduled hearing before it commences, subject to the approval of the official. The official shall grant a continuance if the amendment requires one in the interests of justice. prior to the commencement of the hearing to correct informalities or irregularities. Such amendment will be permitted after commencement of the hearing only with approval of the official. No caseshall will be dismissed by reason of any informality or irregularity in the charginginstrument document.

(b) Substantive Amendments. Absent good cause shown, an amendment that may result in an increased statutory penalty may be made only by serving notice of the amendment on the defendant in conformity with the requirements of Florida Rule of Judicial Administration 2.516 and by filing a certification of service at least 5 days prior to a scheduled hearing.

(c) Continuances. The official must grant a hearing continuance when the charging document is amended and the interests of justice so require.

Committee Notes

- 11 -1988 Amendment. [No change]

2018 Amendment. Examples of "informalities or irregularities" include, but are not limited to, statutory reference errors; illegibility of the charging document; or other scrivener or inadvertent errors contained within the charging document.

RULE 6.490. CORRECTION AND REDUCTION OF PENALTY

(a) [No change]

(b) Reduction of Penalty. An official may reduce a legal penalty :

(1) within 60 days after its imposition,or thereafter with good cause shown;

(2) within 60 days afterreceipt by the official of a mandate issued by the appellate court upon affirmance of the judgment and/or penalty on an original appeal the appellate court issues a mandate affirming the judgment and/or penalty;

(3) within 60 days afterreceipt by the official of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or penalty the appellate court issues a mandate dismissing an appeal from the judgment and/or penalty; or

(4) [No change]

- 12 -RULE 6.500. PRONOUNCEMENT AND ENTRY OF PENALTY; PENALIZING OFFICIAL DISPOSITION

(a) Entry of Penalty. The final Upon disposition ofeverya case without hearing, the clerk or the official shallbe entered in the minutes in courts in which minutes are kept, and shall be docketed in courts which do not maintain minutes enter a notation on the docket.

(b) Pronouncement of Penalty; Obligations of Penalizing Official. In those cases in which it is necessary that the penalty be Following any hearing of a case, the disposition shall be pronouncedby an official other than the official who presided at the hearing, or accepted an admission, the penalizing official shall not impose a penalty without first becoming acquainted with what transpired at the hearing or the facts concerning the admission and the infraction in open court and issued in writing, and shall also be docketed.

RULE 6.510. DETERMINATION THAT INFRACTION WAS NOT COMMITTED; BOND REFUNDED

When it is determined If an official determines thatathe defendant did not commit an alleged traffic infraction and a bond has been posted, themoney or bond shall berefundedreleased to the defendant, pursuant to law.

RULE 6.520. EFFECT OF GRANTING NEW HEARING

WhenIf a new hearing is granted, thenew hearingcase shall proceed in all respects as if no formertrialhearing had beenhadheld.

RULE 6.530. IMPOSITION OF PENALTY BEFORE OR AFTER MOTION FILED

The officialhas the discretion tomay impose the civil penalty either before or after the filing of a motion for new hearing or arrest of judgment.

- 13 -RULE 6.550. OFFICIAL MAY GRANT NEW HEARING

When,followingafter a hearing,a determination has been made thatthe official determines the traffic infraction was committed, the official may grant a new hearing on a motion of the defendant, or on the official's own motion, may grant a new hearing.

RULE 6.560. CONVICTION OF TRAFFIC INFRACTION

An admission or determination that a defendant has committed a traffic infraction shall constitute a conviction as that term is used in chapter 322, Florida Statutes, and section 943.25, Florida Statutes, unless adjudication is withheld by an official in those cases in which withholding of adjudication is not otherwise prohibited by statute or rule of procedure. Elections under section 318.14(9) or (10), Florida Statutes, when adjudication is withheld, shall not constitute convictions, but shall involve the collections of assessments pursuant to section 943.25, Florida Statutes. A defendant's admission or an official's determination that the defendant committed a traffic infraction constitutes a "conviction" as that term is used in chapters 318 and 322, Florida Statutes, and section 943.25, Florida Statutes, unless the official withheld adjudication as permitted by law. Elections under section 318.14(9) or (10), Florida Statutes, when adjudication is withheld, do not constitute convictions, but require collection of assessments under section 943.25, Florida Statutes.

- 14 -RULE 6.570. REPORTING ACTION REQUIRING SUSPENSION OF DRIVER LICENSE

Any noncompliance with the provisions of chapter 318, Florida Statutes, resulting in the suspension of a driver license shall be reported to the department within 5 days after an offender's failure to comply on a form to be supplied by the department. Any noncompliance may be determined without the necessity of holding a hearing. The clerk shall report to the department a defendant's failure to comply as required by section 318.15 or 322.245, Florida Statutes. Unless required by law, a hearing is not necessary to determine noncompliance.

RULE 6.575. RETENTION OF CASE FILES

For the purpose of record retention pursuant to the General Records Schedule D-T 1, case files with an outstanding or unsatisfied D-6 shall be considered disposed of 7 years after the submission of the D-6 by the clerk to the department. If the clerk disposes of a file, the department shall be notified.Case files shall be retained as required by Florida Rule of Judicial Administration 2.430.

Committee Notes

[No change]

RULE 6.580. COMPLETION OF DRIVER SCHOOL; CONDITIONS

(a) Approval by Chief Judge. All driver schools selected by the chief judge of the circuit shall establish the conditions for the successful completion of the driver course. The conditions shall be submitted in writing for approval of the chief judge.

(b) Failure to Meet Conditions; Reporting. Any failure to meet the conditions for successful completion of the course shall be reported to the official having jurisdiction of the case or the clerk or traffic violations bureau if designated by the official of the school.

- 15 -RULE 6.590. FAILURE TO COMPLETE DRIVER SCHOOL IMPROVEMENT COURSE ; REINSTATEMENT OF DRIVER LICENSE

(a) Notice of Failure to Complete Driver Improvement Course. In any case in whichIf a defendant elects to attend a driverschoolimprovement course but fails to appear for or timely complete the course,the clerk must send a notice of the failure to complete the courseshall be sent to the department within510 days after the failure to comply,in order to comply with the requirements ofas required by section 318.15(1), Florida Statutes.

(b) Appearance After Notice Sent. If the defendant appears before the clerk after the failure noticehas beenwas sent but before the departmenthas suspendedsuspends the driver license, the clerk shall so notify the departmentshall be notified on a form to be supplied by the department immediately after the defendant satisfies the civil penaltyas provided inrequired by section318.18318.15(1)(b), Florida Statutes,has been fulfilled. The clerk shall refer the case to the official who shall adjudicate the defendant guilty of the infraction as required by section 318.15(1)(b), Florida Statutes.

(c) Reinstatement of License. If the defendant appears before the clerk after the department suspends the driver licensehas been suspended, the defendant must fulfill the, the clerk shall refer the case to the official who shall adjudicate the defendant guilty of the infraction, and shall assess all applicable civil penalties as required by penalty as provided in section318.18318.15(1)(b), Florida Statutes,and.The official maybe required to agree againrequire the defendant to attend a driverschoolimprovement course.The defendant shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station to have the driving privilege reinstated.The clerk shall give notice that the defendant is in compliance upon satisfaction of the penalties, and shall indicate that the defendant's driving privileges are eligible for reinstatement.

Committee Note

- 16 -2018 Amendment. Section 318.15(1)(b), Florida Statutes, requires adjudication of guilt for a defendant who elects a driver improvement course and fails to attend the course within the time required by the court.

RULE 6.600. FAILURE TO APPEAR OR PAY CIVIL PENALTY; REINSTATEMENT OF DRIVER LICENSE

(a) Notice of Failure to Comply Appear or Pay. In any case in whichIf no mandatory hearing is required and the defendant hassigned and accepted a citationbeen cited but fails to pay the civil penalty or appear,the clerk must send the department notice of such failureshall be sent to the department within 5 days after the failure to comply, in order to comply with the requirements ofas required by section 318.15(1), Florida Statutes.

(b) Appearance After Notice Sent. If the defendant appears before the clerk after the noticehas beenwas sent but before the departmenthas suspendedsuspends the driver license, the defendant may pay the civil penaltymay be paid without a hearingtogether with any additional penalty required by section 318.18(8)(a), Florida Statutes, orthe defendant may request a hearing. If the defendant requests a hearing, the clerkmustshall set the case for hearing upon payment of the costs specified in section 318.18(8)(a), Florida Statutes.The department must be notified immediately on a form to be supplied by the department.

(c) Reinstatement of License. If the defendant appears before the clerk after the department suspends the driver licensehas been suspended, the defendant may pay the civil penalty,elect to attend a driver improvement school,together with any additional Penalty required by section 318.18(8)(a), Florida Statutes, or request a hearing. Any request for a hearingshallmust be madewithin a reasonable period of time after the commission of the alleged offenseas provided by section 318.15(1)(c), Florida Statutes. Ifan election to attendthe official grants the defendant's request for a hearingis grantedandit is determineddetermines that the defendant committed the infractionwas committed, the defendant shall be subject to the penalty provisions of section 318.14(5), Florida Statutes.The defendant shall

- 17 -be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station to have the driving privilege reinstated.

Committee Notes

[No change]

RULE 6.610. FAILURE TO FULFILL SATISFY PENALTY IMPOSED AFTER A HEARING; REINSTATEMENT OF DRIVER LICENSE

(a) Notice of Failure to Comply. In any case in whichIf a hearing is held,if it is determinedand the official determines that the infraction was committed, and a penalty is imposed but the penalty is notfulfilled,satisfied within the time set by the court, the clerk shall send notice of such failureshall be sent to the departmentwithin 5 days after the failure to comply, in order to comply with the requirements ofas required by section 318.15(1), Florida Statutes.

(b) Appearance After Notice Sent. If the defendant appears before the clerk after noticehas beenwas sent but before the departmenthas suspendedsuspends the driver license, the clerk shall notify the departmentshall be notified on a form to be supplied by the departmentimmediately after the defendant satisfies the penalty imposedhas been fulfilledby the official together with additional penalties as required by sections 318.15 and 318.18, Florida Statutes.

(c) Reinstatement of License. If the defendant appears before the clerk after the department suspends the driver licensehas been suspended, the defendant mustfulfillsatisfy the penalty and any other penalties required by sections 318.15 and 318.18, Florida Statutes. The official may require the defendant to attend a driver improvement course, if available, if itiswas not a part of the penalty originally imposed., may be required to agree to attend a driver school if available. The defendant shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station to have the driving privilege reinstated. The clerk shall give notice that the defendant is in

- 18 -compliance upon satisfaction of the penalties, and shall indicate that the defendant's driving privileges are eligible for reinstatement.

RULE 6.620. FAILURE TO APPEAR FOR MANDATORY HEARING; REINSTATEMENT OF DRIVER LICENSE

(a) Notice of Failure to Appear. In any case in which a mandatory hearing is required and theIf a defendant fails to appear,for a mandatory hearing, the clerk shall send notice of such failure to appearshall be sent to the departmentwithin 5 days after the failure to comply, in order to comply with the requirements of , as required by section 318.15(1), Florida Statutes.

(b) Appearance After Notice Sent. If the defendant appears before the clerk after noticehas beenwas sent,but before the department suspends the driver license, the clerk shallbe notified immediately on a form to be supplied by the department and a hearing shall be held to determine whether the infraction was committedschedule a hearing for the official to determine whether the defendant committed the violation. If, after the hearing, the official finds the defendant committed the violation, the defendant shall be subject to the penalty provisions of section 318.14(5), Florida Statutes.

(c) Reinstatement of License. If the department suspended the defendant's driver license,as authorized by law and upon request, the clerk shall set the case for hearing has been suspended by the department and,if after a hearing,it is found that the infraction was committed, the official may require that driver school, if available, be attended as part of the penalty. The defendant shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station to have the driving privilege reinstatedthe official finds the defendant committed the violation, the defendant shall be subject to the penalty provisions of section 318.14(5), Florida Statutes. If the defendant's driving privileges were not reinstated prior to the hearing, the clerk shall give notice that the defendant is in compliance upon satisfaction of the penalties, and shall indicate that the defendant's driving privileges are eligible for reinstatement.

- 19 -RULE 6.630. CIVIL TRAFFIC INFRACTION HEARING OFFICER PROGRAM; TRAFFIC HEARING OFFICERS

Under the authority of sections 318.30-318.38, Florida Statutes, and article V, section 2, Florida Constitution, this court adopts the following rules and procedure for the Civil Traffic Infraction Hearing Officer Program:

(a) Eligibility of County. Pursuant to section 318.30, Florida Statutes, any county shall be eligible to participate in the Civil Traffic Infraction Hearing Officer Program.The chief judge shall make the decision on whether to participate in the program. Any county electing to participate in the program shall be subject to the supervision of the supreme court.

(b) Participation. Any county electing to participate in the program shall be subject to the supervision of the Florida Supreme Court. The decision on whether to participate shall be made by the chief judge.

(c b )Appointment of Traffic Hearing Officers. Theappointment of such chief judge shall appoint hearing officersshall be made by the chief judge, after consultation with the county judges in the county affected,and shall;all appointments must be approved by the chief justice. Once the chief justice grants approvalhas been granted by the chief justice, the traffic hearing officers shall serve at thewillpleasure of the chief judge.Traffic hearing officers may serve either full-time or part-time at the discretion of the chief judge.

(d c )Jurisdiction. Traffic hearing officers shall have the power to accept pleas from defendants, hear and rule upon motions, decide whether a defendant has committed an infraction, and adjudicate or withhold adjudication in the same manner as a county court judge. However, a traffic hearing officer shall not:

(1)-(3) [No change]

(c d )Appeals. Appeals from decisions of a traffic hearing officer shall be made to the circuit court pursuant to the relevant provisions of the Florida Rules of Appellate Procedure in the same manner as appeals from the county court, except that traffic hearing officers shall not have the power to certify questions to district - 20 courts of appeal. The appellant shall be responsible for producing the record forsuchany appeal.

(f e )Membership in The Florida Bar. A traffic hearing officer shall be a member in good standing of The Florida Bar.

(g f )Training. Traffic hearing officers must complete 40 hours of standardized training that has been approved by the supreme court. Instructors must be judges, hearing officers, and persons with expertise or knowledge with regard to specific traffic violations or traffic court. Curriculum and materials must be submitted to the Office of the State Courts Administrator. The standardized training must contain, at a minimum, all of the following:

(1)-(5) [No change]

(h g )Continuing Legal Education. Traffic hearing officers must complete 4 hours of continuing legal education per year. The continuing legal education program must be approved by the supreme court and must contain a minimum of 2 hours of ethics or professionalism, and 2 hours of civil traffic infraction related education. Curriculum materials must be submitted to the Office of the State Courts Administrator.

(i) Hours. Traffic hearing officers may serve either full time or part time at the discretion of the chief judge.

(j h )Code of Judicial Conduct. All traffic hearing officers shall be subject to the Code of Judicial Conduct as provided in the application section of the code.

(k) Implementation of Program. In any county electing to establish a program, the chief judge shall develop a plan for its implementation and shall submit the plan to the Office of the State Courts Administrator. Funds for the program shall be used for traffic hearing officer program salaries and other necessary expenses, such as training, office rental, furniture, and administrative staff salaries. Any county electing to establish a traffic hearing officer program shall provide the funds necessary to operate the program.

- 21 -(l i )Robes. Traffic hearing officers shall not wear robes.

(m j )Concurrent Jurisdiction. A county judge may exercise concurrent jurisdiction with a traffic hearing officer.

(n k )Assignment to County Judge. On written request of the defendant, within 30 days of the issuance of a uniform traffic citation, the case shall be assigned to a county judge.

Committee Notes

[No change]

- 22 -


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephen Todd BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. SC18-541
    Supreme Court of Florida.
    August 30, 2018
    Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, and Ann Finnell of Finnell, McGuinness, Nezami & Andux, P.A., Jacksonville, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Stephen Todd Booker's appeal of the circuit court's order denying Booker's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Booker's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Booker responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Booker's response to the order to show cause, as well as the State's arguments in reply, we conclude that our prior denial of Booker's petition for a writ of habeas corpus raising similar claims is a procedural bar to the claims at issue in this appeal. All of Booker's claims depend upon the retroactive application of Hurst , to which we have held he is not entitled. See Booker v. Jones , 235 So.3d 298, 299 (Fla. 2018) ; Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Booker's motion.

The Court having carefully considered all arguments raised by Booker, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.


author: LAWSON, J. PARIENTE, J., dissenting.

text:
    STATE of Florida, Petitioner, v. Kenneth PURDY, Respondent.
    No. SC17-843
    Supreme Court of Florida.
    August 30, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau Chief, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, Florida, for Petitioner
    Matthew R. McLain of McLain Law, P.A., Maitland, Florida, for Respondent
    Roseanne Eckert, Florida International University College of Law, Miami, Florida, and Amy Weber, Fair Punishment Project, Chapel Hill, North Carolina, Amici Curiae Florida Juvenile Resentencing and Review Project at the FIU College of Law and Fair Punishment Project
   LAWSON, J.

We accepted review of the Fifth District Court of Appeal's decision in Purdy v. State , --- So.3d ----, 42 Fla. L. Weekly D272 (Fla. 5th DCA Jan. 27, 2017), to answer the following certified question:

WHEN A JUVENILE OFFENDER IS ENTITLED TO A SENTENCE REVIEW HEARING, IS THE TRIAL COURT REQUIRED TO REVIEW THE AGGREGATE SENTENCE THAT THE JUVENILE OFFENDER IS SERVING FROM THE SAME SENTENCING PROCEEDING IN DETERMINING WHETHER TO MODIFY THE OFFENDER'S SENTENCE BASED UPON DEMONSTRATED MATURITY AND REHABILITATION?

Purdy v. State , --- So.3d ----, ----, 42 Fla. L. Weekly D967, D967 (Fla. 5th DCA Apr. 28, 2017) (certifying question). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative and quash the Fifth District's decision, which held that chapter 2014-220, Laws of Florida, requires modification of the overall sentence whenever a juvenile establishes rehabilitation at a statutorily required sentence review hearing.

BACKGROUND

I. Legal Context

In Graham v. Florida , 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the United States Supreme Court held that the Eighth Amendment categorically forbids a sentence of life without parole for juvenile nonhomicide offenders and requires that any life sentence for a juvenile nonhomicide offender be accompanied by "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" before the end of the sentence and during the offender's natural life.

Two years later, in Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court held that the Eighth Amendment prohibits the imposition of a mandatory life sentence without the possibility of parole for juvenile homicide offenders. Although the holdings of Graham and Miller are narrow and specific, the discussion in both cases broadly outlines Eighth Amendment principles requiring states to take into account, as part of the sentencing process, the immaturity of those under the age of 18-and the consequent ability of younger offenders to reform as they mature. See Graham , 560 U.S. at 68, 130 S.Ct. 2011 ; Miller , 567 U.S. at 471-72, 132 S.Ct. 2455.

In response, the Florida Legislature adopted chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes, to address the Eighth Amendment principles articulated in Graham and Miller . Although the effective date of these statutes was prospective as of July 1, 2014, this Court later unanimously held that Miller applied retroactively, see Falcon v. State , 162 So.3d 954, 962 (Fla. 2015), and that when a juvenile sentence imposed before July 1, 2014, violates Miller , the appropriate remedy is resentencing pursuant to chapter 2014-220. Horsley v. State , 160 So.3d 393, 405-06 (Fla. 2015) ; see also Henry v. State , 175 So.3d 675, 680 (Fla. 2015) (unanimously holding that resentencing pursuant to chapter 2014-220 is the proper remedy for a sentence that violates Graham ).

Significantly, in this case, the parties present and argue the certified question as one of statutory construction, which is answered by the plain language of the relevant statutes. See Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ("[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931) ) ).

Questions of statutory interpretation are reviewed de novo. See Borden v. East-European Ins. Co. , 921 So.2d 587, 591 (Fla. 2006).

II. Relevant Statutes

Sections 775.082, 921.1401, and 921.1402, Florida Statutes (2015), now provide special sentencing rules for juveniles convicted of "certain serious felonies" identified in those statutes. Ch. 2014-220 (title); see also § 921.1402, Fla. Stat. (2015) ("Review of sentences for persons convicted of specified offenses while under the age of 18 years.") (emphasis added). Those provisions, by their express terms, apply only to homicide offenses, which are defined in section 782.04, Florida Statutes (2015), and nonhomicide offenses that can be punished by life. §§ 775.082(1)(b), 775.082(3)(a) 5., 775.082(3)(b)2., 775.082(3)(c)., Fla. Stat. (2015). As drafted, the special sentencing rules created by chapter 2014-220 do not apply to any other offenses. Id. For the "specified offenses," each subsection provides an early release mechanism, based on a finding of maturity and rehabilitation, for the sentence imposed pursuant to that subsection on the specified offense. Id. ; see, e.g. , § 775.082(3)(c) (explaining that a juvenile convicted of a nonhomicide offense that is punishable by life or a term of years not exceeding life, and who is sentenced to a term of imprisonment "of more than 20 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(d)").

To fully understand chapter 2014-220, it is important to first recognize that the Legislature grafted its juvenile sentencing fix into the preexisting general statute that set the penalties applicable to each felony offense, by degree-section 775.082, Florida Statutes. Immediately prior to the enactment of chapter 2014-220, section 775.082(1) provided that the only sentences available for a capital felony were death or life. § 775.082, Fla. Stat. (2013). Section 775.082(2) dealt with the death penalty. Id. Then, section 775.082(3) listed the penalties associated with lesser felony offenses, beginning with life felonies and ending with third-degree felonies. Id. For example, section 775.082(3)(c) simply provided that a person convicted of a second-degree felony could be punished "by a term of imprisonment not exceeding 15 years." Id.

With the enactment of chapter 2014-220, the Legislature amended section 775.082(1) to provide new sentencing options for juveniles convicted of capital offenses. For example, a new subsection (1)(b)1 now provides:

A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted under s. 782.04 [the homicide statute] of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds that life imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least 40 years. A person sentenced pursuant to this subparagraph [for a capital felony] is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(a).

§ 775.082(1)(b) 1., Fla. Stat. (2015). Section 921.1402(2)(a) then provides in pertinent part that "[a] juvenile sentenced under s. 775.082(1)(b) 1. [for a capital felony] is entitled to review of his or her sentence after 25 years." § 921.1402(2)(a), Fla. Stat. (2015) (emphasis added). The only sentence referenced as eligible for review in this subsection is the sentence "under s. 775.082(1)(b) 1.," which is the sentence on the capital felony for a person who "actually killed, intended to kill, or attempted to kill the victim." § 775.082(1)(b) 1., Fla. Stat. (2015). This formula continues in similar fashion for the other enumerated serious felonies: other homicide offenses and any nonhomicide offense classified as a "life felony" or as a "first-degree felony punishable by life" (commonly referenced by trial courts and in sentencing documents as an "F1-PBL"). § 921.1402(2)(b)-(d), Fla. Stat. (2015). Chapter 2014-220 did not add any special juvenile sentencing provisions for lower-level offenses. For example, section 775.082 still simply provides that a felony of the second degree is to be punished "by a term of imprisonment not exceeding 15 years." § 775.082(3)(d), Fla. Stat. (2017). And, no review mechanism is provided for first-degree felonies (except for F1-PBLs), second-degree felonies, or third-degree felonies.

The new juvenile sentencing provisions seem complex because the sentencing rules for life felonies and F1-PBLs are complex. Life felonies committed before October 1, 1983, are punishable "by a term of imprisonment for life or a term of at least 30 years." § 775.082(3)(a) 1., Fla. Stat. (2017). Life felonies committed on or after October 1, 1983, but before July 1, 1995, are punishable "by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years." § 775.082(3)(a) 2., Fla. Stat. (2017). Life felonies committed on or after July 1, 1995, are generally punishable "by a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment." § 775.082(3)(a) 3., Fla. Stat. (2017). However, there are additional sentencing rules for some life felonies committed after September 1, 2005, and July 1, 2008. § 775.082(3)(a) 4., Fla. Stat. (2017). F1-PBLs are punishable "by imprisonment for a term of years not exceeding life imprisonment." § 775.082(3)(b) 1., Fla. Stat. (2017).

The new juvenile sentencing rules for life felonies and F1-PBLs are categorized based upon whether the underlying offense is a homicide offense or nonhomicide offense and the length of sentence imposed. For example, a juvenile sentenced for a nonhomicide life felony to a term-of-years sentence of more than 20 years is entitled to review of that sentence after 20 years and, for longer sentences, is entitled to a second review 10 years after the initial review. §§ 775.082(3)(c), 921.1402(2)(d), Fla. Stat. (2015). As seen in these examples, and in the text itself, the review provisions added by the Legislature are clearly and unequivocally linked to those offenses specified in chapter 2014-220. Although a review mechanism is provided for some term-of-years sentences, this is only because life felonies and F1-PBLs can be punished by a term-of-years sentence, and because a juvenile can now be sentenced to a term-of-years sentence for a capital offense. §§ 775.082(1)(b), 775.082(3)(a) 5., 775.082(3)(b)2., 775.082(3)(c)., Fla. Stat. (2015).

III. Procedural History of the Case

Kenneth Purdy was convicted in 1997 of first-degree murder (a capital felony), armed robbery (an F1-PBL), and armed carjacking (an F1-PBL). He was sentenced to life without parole for the murder (the only sentence available at the time) and to 112.7 months (approximately 9.4 years) for the armed robbery and armed carjacking convictions, to run concurrently with one another but consecutive to the life sentence. Purdy was 17 at the time he committed the offenses. Purdy's convictions and sentences became final in 1998.

In 2015, Purdy filed a motion pursuant to Florida Rule of Criminal Procedure 3.800, arguing that his life sentence violated Miller . Purdy did not seek relief on the sentences imposed consecutively to the life sentence. The trial court granted the relief requested and resentenced Purdy to 40 years for the murder conviction pursuant to chapter 2014-220, in accordance with Horsley , with no change to the 112.7-month sentences. Consistent with sections 921.1402(2) and (4), Florida Statutes (2015), the trial court later conducted the required review and determined that Purdy was "rehabilitated and that it reasonably believed [Purdy] to be fit to reenter society." Purdy , --- So.3d at ----, 42 Fla. L. Weekly at D272. Based upon this determination, the judge reduced the 40-year sentence to 20 years, 6 months and 13 days-the amount of time already served on that sentence-followed by 10 years of probation. Determining that the statute did not authorize review of the other sentences, Purdy was returned to prison to begin serving the 112.7-month sentences. Because probation is tolled during incarceration, Evans v. Singletary , 737 So.2d 505, 508 (Fla. 1999), Purdy will begin serving the probationary term now associated with the murder conviction after serving the 112.7-month sentences, unless further relief is granted.

On appeal, the Fifth District reversed and remanded for the trial court to conduct another review hearing, holding that a trial court is required to review a juvenile offender's aggregate sentence at a sentence review hearing in order to determine whether to modify the sentence based on maturity and rehabilitation. Purdy , --- So.3d at ----, 42 Fla. L. Weekly at D273. The textual basis for this holding is unclear. The Fifth District also certified the question as one of great public importance. Id. at ----, at D967.

ANALYSIS

Because the plain language of section 921.1402, Florida Statutes, only provides for review of the sentence imposed for Purdy's murder conviction pursuant to the new provisions added by chapter 2014-220 as sections 775.082(1)(b) and 921.1402(2)-and because no other provision authorizes resentencing on consecutive sentences-the trial court was correct in determining that the statute does not provide any basis for resentencing for the 112.7-month sentences. See Holly , 450 So.2d at 219. Although section 921.1402(2)(d) authorizes review of sentences for nonhomicide F1-PBLs imposed pursuant to section 775.082(3)(c), Purdy never sought relief from the sentences imposed for his armed robbery and armed carjacking convictions, the consequence being that he was not resentenced pursuant to chapter 2014-220 on those convictions. Even if Purdy had been resentenced pursuant to section 775.082(3)(c) for the additional convictions, the 112.7-month sentences would not qualify for review because the plain language of section 921.1402(2)(d) only provides for review if the juvenile is sentenced "to a term of 20 years or more under s. 775.082(3)(c) [on the nonhomicide F1-PBL]" and Purdy was sentenced to less than 10 years on each F1-PBL.

On appeal, we have been presented with arguments pointing to several gaps and anomalies in the statutory scheme enacted to address the Eighth Amendment issues associated with juvenile sentencing. First, by limiting the review provisions to sentences imposed on crimes that carry a potential life sentence, chapter 2014-220 failed to address all potential Eighth Amendment violations. Henry , 175 So.3d at 679-80 (unanimously holding that stacked consecutive term-of-years sentences that in combination exceed the life expectancy of a juvenile nonhomicide offender and do not provide a review mechanism violate the Eighth Amendment).

Second, because the statute limits the review provisions and does not deal with the overall sentence, there will be other cases, like this one, where the sentencing court is required to consider whether the offender "is rehabilitated and is reasonably believed to be fit to reenter society" even though the offender will continue to be incarcerated irrespective of the outcome of the hearing. Amicus points out that the continued incarceration of an offender on offenses arising from a single criminal episode under these circumstances-long after a judicial determination that the juvenile offender is rehabilitated-may raise additional Eighth Amendment issues.

Third, by limiting the review provisions to certain serious offenses, the Legislature has placed juveniles convicted of serious violent felonies in a better position than juveniles who commit less serious nonviolent offenses. For example, section 775.082(1)(b) provides that a juvenile convicted of homicide (a capital offense) but who did not "actually kill, intend to kill, or attempt to kill the victim" is entitled to review of his or her sentence-and potential release from prison-after 15 years. § 775.082(1)(b). By contrast, a juvenile convicted of one count of sale or delivery of a controlled substance within 1000 feet of a school commits a first-degree felony and can be sentenced to 30 years in prison with no review and no opportunity for early release. §§ 893.13(1)(c)1., 775.082(3)(b)1., Fla. Stat. (2015).

But the existence of these limitations in the coverage of section 921.1402 provides no basis for a judicial expansion of the statute that ignores the unambiguous statutory provisions. See, e.g., State v. Weeks , 202 So.3d 1, 7 (Fla. 2016) ("[W]e are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.") (internal quotation marks omitted). We recognize that the scope of the existing statutory scheme has arisen in a context that is evolving and has to date focused more narrowly on the categorical rule announced in Graham , and on Miller , both of which found Eighth Amendment violations associated with juvenile life sentences. Given that context, and the fact that chapter 2014-220 was enacted prior to Henry , it is understandable that the Legislature would have crafted a statute dealing only with offenses that carry potential life sentences.

CONCLUSION

Because the plain language of the juvenile sentencing statutes does not provide for aggregation of sentences at judicial sentence review, we answer the certified question in the negative, quash the Fifth District's decision below, and remand for further proceedings consistent with this opinion.

It is so ordered.

CANADY, C.J., and POLSTON, J., concur.

LEWIS, J., concurs in result.

PARIENTE, J., dissents with an opinion, in which LABARGA, J., concurs.

QUINCE, J., dissents.

PARIENTE, J., dissenting.

The narrow certified question in this case is whether the trial court should have considered Purdy's aggregate sentence resulting from criminal acts that arose from one criminal episode that occurred at the same time on the same day. I would answer that question in the affirmative because failing to consider a juvenile defendant's aggregate prison sentence for crimes that arose from a single criminal episode when determining whether the sentence is constitutional violates the Eighth Amendment.

In 1997, Kenneth Purdy was sentenced to life without parole for a 1995 first-degree murder and a consecutive sentence of 9.4 years for armed robbery and armed kidnapping (concurrent with each other but not to the first-degree murder), all of which arose from the same criminal episode that occurred on the same day at the same time. At his resentencing hearing in 2015, conducted pursuant to the United States Supreme Court's opinion in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the trial court made the constitutionally required determinations and found that Purdy was "rehabilitated" and "fit to reenter society." Yet, considering itself constrained by its interpretation of the applicable sentencing statutes, which the plurality adopts today, the trial court concluded that it did not have the authority to consider Purdy's aggregate sentence of life plus 9.4 years. In my view, that result, if compelled by the plain reading of the statute, as the plurality suggests, leads to a clear Eighth Amendment violation in Purdy's case.

The result reached by the plurality today ignores and cannot be reconciled with the United States Supreme Court's opinions in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller and this Court's subsequent opinions in Henry v. State , 175 So.3d 675 (Fla. 2015), and Horsley v. State , 160 So.3d 393, 405 (Fla. 2015). Leighdon Henry received an aggregate term-of-years' sentence of ninety-years' imprisonment but, unlike Purdy, was granted relief by this Court. See Henry , 175 So.3d at 676. Henry, like Purdy, was seventeen at the time of his crimes and was convicted of a number of crimes, including two counts of robbery and one count of kidnapping. Id. In granting Henry resentencing, this Court held that "the Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating this special class of offenders for demonstrable maturity and reform in the future because any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult." Id. at 680.

Purdy's sentence was the result of a single criminal episode, for which he has been found rehabilitated. Accordingly, I would conclude, based upon this Court's opinion in Henry , that sections 775.082(1)(b) and 921.1402 required the trial court to consider and modify Purdy's aggregate sentence at the resentencing hearing. §§ 775.082(1)(b), 921.1402, Fla. Stat. (2015). Because the plurality's analysis is one that the Legislature clearly did not contemplate or intend and is unconstitutional under the Eighth Amendment, I dissent.

ANALYSIS

It is well-established that juvenile offenders have "diminished culpability" relative to adults. Roper v. Simmons , 543 U.S. 551, 571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). As a result, the United States Supreme Court held in Graham that if a state sentences a juvenile to life for a nonhomicide offense, it must provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." 560 U.S. at 75, 130 S.Ct. 2011. Likewise, in Miller , the Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," including those convicted of homicide offenses. 567 U.S. at 479, 132 S.Ct. 2455.

It was against this backdrop that the Legislature adopted chapter 2014-220, Laws of Florida. See §§ 775.082, 921.1401, 921.1402, Fla. Stat. (2015) ; plurality op. at 725. Chapter 2014-220 provides for "sentence review proceedings to be conducted after a specified period of time by the original sentencing court for juvenile offenders convicted of certain offenses." Ch. 2014-220, Laws of Fla. (emphasis added); see § 921.1402(2), (6), Fla. Stat. (2015). "If the court determines ... that the juvenile offender has been rehabilitated and is reasonably believed to be fit to reenter society," section 921.1402(7) provides that "the court shall modify the sentence and impose a term of probation of at least 5 years." Id. § 921.1402(7) (emphasis added). Shortly after the Legislature enacted chapter 2014-220, this Court unanimously concluded that "applying chapter 2014-220, Laws of Florida, to all juvenile offenders whose sentences are unconstitutional under Miller is the appropriate remedy." Horsley , 160 So.3d at 405.

Consistent with the United States Supreme Court's opinions in Graham and Miller and this Court's subsequent opinions in Henry and Horsley , courts reviewing sentences under section 921.1402 must have the authority to modify a juvenile's aggregate sentence, in order to preserve the statute's constitutionality. As we have previously explained:

This Court has an obligation to construe a statute in a way that preserves its constitutionality. See State v. Harris , 356 So.2d 315, 316-17 (Fla. 1978) (construing section 812.021(3), in a constitutional manner where the statute was procedurally flawed); see also Fla. Dep't of Children & Families v. F.L. , 880 So.2d 602, 609 (Fla. 2004) (stating that the Court has an obligation to construe a statute in a way that preserves its constitutionality). It is this Court's duty to "save Florida statutes from the constitutional dustbin whenever possible." Doe v. Mortham , 708 So.2d 929, 934 (Fla. 1998). This Court is bound to "resolve all doubts as to the validity of the statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with legislative intent." Heart of Adoptions, Inc. v. J.A. , 963 So.2d 189, 207 (Fla. 2007) (citation omitted).

Perry v. State , 210 So.3d 630, 638-39 (Fla. 2016).

As a consequence of its interpretation of the statute, the plurality opinion correctly concedes that proportionality concerns may arise, stating "by limiting the review provisions to certain serious offenses, the Legislature has placed juveniles convicted of serious violent felonies in a better position than juveniles who commit less serious nonviolent offenses." Plurality op. at 729. However, a "sentence lacking any legitimate penological justification is by its nature disproportionate to the offense." Graham , 560 U.S. at 71, 130 S.Ct. 2011. When continued incarceration advances no penological purpose, the punishment runs afoul of the Eighth Amendment's prohibition of cruel and unusual punishment. See id. at 59, 130 S.Ct. 2011 ("The concept of proportionality is central to the Eighth Amendment."). Indeed, this Court has previously held that some juvenile sentences are unconstitutional for this reason:

Our conclusion that Landrum's sentence is unconstitutional is also compelled by the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (internal quotation omitted). Upholding Landrum's sentence would violate this precept, as a juvenile convicted of the lesser offense of second-degree murder would receive a harsher sentence than a juvenile convicted of first-degree murder.

Landrum v. State , 192 So.3d 459, 460-61 (Fla. 2016).

Despite the undeniable proportionality concerns, the plurality declares itself bound by the strict language of chapter 2014-220, concluding that "the existence of these limitations," or anomalies, "in the coverage of section 921.1402 provides no basis for a judicial expansion of the statute that ignores the unambiguous statutory provisions." Plurality op. at 729. Of course, in reaching this conclusion, the plurality ignores that we have stated time and again that "a sterile literal interpretation should not be adhered to when it would lead to absurd results." State v. Hackley , 95 So.3d 92, 95 (Fla. 2012) (quoting Maddox v. State , 923 So.2d 442, 448 (Fla. 2006) ).

Contrary to the plurality's assertions, a constitutional interpretation of sections 775.082(1)(b) and 921.1402 is possible. By interpreting section 921.1402 in a way that permits sentencing courts to review the offender's "sentence" under subsection (7)-which includes the entire sentence for any one criminal episode, not just the sentence for a particular crime within a criminal episode-this Court can preserve the statute's constitutionality. Moreover, this interpretation is consistent with both this Court's and the United States Supreme Court's juvenile sentencing jurisprudence.

In Henry , this Court held that Graham applies with equal force to aggregate sentences that do "not afford any 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " Henry , 175 So.3d at 679 (quoting Graham , 560 U.S. at 75, 130 S.Ct. 2011 ). Therefore, Henry's 90-year aggregate sentence, resulting from consecutive sentences imposed on nine separate offenses, violated the Eighth Amendment. Id. at 676, 679. Henry's offenses, however, like Purdy's, were not all capital, life, or first-degree felonies punishable by life. Id. at 676. Nevertheless, this Court determined that Henry's consecutive sentences for multiple offenses were unconstitutional because the aggregate sentence failed to link a meaningful opportunity for release to demonstrated maturity and rehabilitation. Id. at 679-80. The Court's remedy would be meaningless if it did not apply to each link in the chain creating that constitutional infirmity.

THIS CASE

In 1995, at the age of seventeen, Purdy committed several crimes during the course of one criminal episode. Consequently, Purdy's entire sentence-life in prison without the possibility of parole plus 9.4 years-arose from the same criminal episode. Thus, when the trial court deemed Purdy to be "rehabilitated" and "fit to reenter society" this determination was not the byproduct of the trial court's consideration of only the offense of first-degree murder, but rather, the trial court's consideration of all of the crimes which Purdy committed that day. Accordingly, I would conclude, as this Court has done previously, that section 775.082(1)(b) afforded the trial court the authority to review and modify Purdy's aggregate prison sentence.

CONCLUSION

It is an anomaly that Kenneth Purdy, who has proven to the courts of this State that he has moved past his previous crimes and is ready to be a contributing member of society, must continue to be imprisoned. That anomaly is unconstitutional. I would, instead, read the applicable statutes as the Fifth District Court of Appeal did-to require the trial court to review and allow it to modify a juvenile offender's aggregate sentence for multiple convictions arising out of the same criminal episode. I would thus answer the certified question in the affirmative and approve the result reached by the Fifth District. But, since the plurality decision does not reach that result, I urge the Legislature to review the unconstitutional incongruities demonstrated by this case.

LABARGA, J., concurs.

      While the 2015 version of the Florida Statutes applies to the case at issue and is therefore the version cited in this opinion, the current 2018 version of the Florida Statutes is the same for sections 921.1401, 921.1402, and 775.082.

      Cognizant of these issues, we observe that our decision today only addresses the statutory construction issue presented and does not foreclose Purdy from challenging his consecutive 112.7-month sentences in the trial court on Eighth Amendment grounds.


text:
    IN RE: AMENDMENTS TO the FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES
    No. SC17-1362
    Supreme Court of Florida.
    August 30, 2018
    Krista Marx, Chair, West Palm Beach, Florida, Michael L. Schneider, Executive Director, and Alexander J. Williams, Assistant General Counsel, Judicial Qualifications Commission, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

The Florida Judicial Qualifications Commission (Commission or JQC) has submitted for this Court's review recent amendments to the Florida Judicial Qualifications Commission Rules (JQC Rules). Article V, section 12(a)(4) of the Florida Constitution authorizes this Court, with five justices concurring, to repeal the Commission's rules of procedure or any part thereof. The Court now exercises that authority and repeals the recent amendments to JQC Rules 6 and 20 that purport to authorize the Commission's investigative and hearing panels to designate filings with this Court confidential (confidentiality amendments). These amendments are inconsistent with Florida Rule of Judicial Administration 2.420 (Public Access to and Protection of Judicial Branch Records) and beyond the Commission's authority under the Florida Constitution.

In its July 24, 2017, notice of adoption, the Commission submitted for this Court's review a number of recent amendments to the JQC Rules, including the confidentiality amendments to rules 6 and 20. This Court reviewed all the amendments and ordered the Commission to explain why the confidentiality amendments should not be repealed for inconsistency with rule 2.420. After receiving the Commission's response, this Court issued an order requesting clarification of the amendments. The Commission responded to this order and simultaneously provided a notice of adoption of revised confidentiality amendments to rules 6 and 20. Having considered the originally submitted amendments, the Commission's responses to this Court's orders, and the notice of adoption of revised amendments to rules 6 and 20, the Court repeals only the rule 6 and 20 confidentiality amendments.

Similar to the confidentiality amendments originally submitted in this case, the revised confidentiality amendments, which resulted in newly adopted JQC Rules 6(l ) and 20(b), authorize the Commission's investigative and hearing panels to designate filings with this Court, or portions of those filings, confidential. According to the Commission, authorizing its panels to designate filings with this Court confidential is the Commission's "attempt to avoid disclosure of medical and personal information that is necessary to provide to [this] Court in cases involving disability or illness." This Court does not question that the Commission's attempt to protect such sensitive medical and personal information from public view is made with good intentions. However, this Court must repeal the confidentiality amendments because neither the Commission nor its panels have authority to designate filings in this Court confidential under rule 2.420 or the Florida Constitution, and the Commission does not have authority to adopt a rule of procedure purporting to grant such authority.

Under article V, section 2(a) of the Florida Constitution, this Court has exclusive authority to "adopt rules for the practice and procedure in all courts," including this Court. Article V, section 12(a)(4) of the Florida Constitution authorizes the Commission to "adopt rules regulating its proceedings." However, neither that provision of the constitution nor article I, section 24, which creates the public's right of access to judicial branch records and the limitations on that right, authorizes the Commission to adopt rules allowing its panels to designate filings in this Court confidential.

Article I, section 24 of the Florida Constitution recognizes the rules of this Court that were in effect at the time of the adoption of that section as one source of limitation on the public's right of access to judicial branch records. Therefore, in October 1992, in anticipation of the adoption of article I, section 24, this Court adopted Florida Rule of Judicial Administration 2.420 to govern access to judicial branch records.

As relevant here, rule 2.420 provides the procedures for determining the confidentiality of court records, which includes all filings with this or any other state court. Thus, the only filings in a JQC proceeding in this Court that can be designated and maintained as confidential are those determined to be confidential in accordance with the rule 2.420 procedures adopted by this Court. A filing in this or any other state court is not confidential under rule 2.420 and cannot be otherwise "designated" confidential simply because it contains sensitive personal information. And nothing in rule 2.420 excludes from its requirements filings in JQC proceedings in this Court or authorizes the Commission or its panels to designate such filings confidential and exempt from the public's constitutional right of access to those records.

Consistent with article V, section 12(a)(4) of the Florida Constitution, which makes proceedings against a judge before an investigative panel of the Commission confidential, rule 2.420(c)(3)(A) recognizes as confidential complaints alleging misconduct against judges until probable cause is found. However, after an investigative panel finds probable cause and files formal charges with the Clerk of this Court, any further proceedings before the Commission or this Court are public, and the records created in connection with or filed in those proceedings are public unless they are recognized as confidential under rule 2.420(c).

This Court cannot agree with the Commission that rule 2.420(c)(8) authorizes the Commission to adopt the confidentiality amendments at issue here. Rule 2.420(c)(8) recognizes as confidential "[a]ll records presently deemed to be confidential by ... the rules of the Judicial Qualifications Commission." This provision was adopted in 1992, shortly before article I, section 24 of the Florida Constitution. Section 24(d) preserves the effectiveness of rules of court exempting certain judicial branch records from public access as of the date this section was adopted, but it does not authorize new rules of court providing additional exemptions. On the contrary, section 24 (c) grants only the Legislature the power to create new exemptions. Consistent with these constitutional provisions, rule 2.420(c)(8) simply recognizes as confidential records that were confidential under any JQC rule that existed at the time rule 2.420 was adopted. That rule does not authorize the Commission to adopt new rules of procedure addressing the confidentiality of its filings in this Court.

Accordingly, this Court repeals the amendments to JQC Rules 6 and 20 that purport to authorize the Commission's panels to designate filings with this Court confidential.

It is so ordered.

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

LEWIS, J., concurs in result.

APPENDIX

APPENDIX A THIRD REVISED (with Changes to 6(l ) and 20(b)) FILED MARCH 14, 2018

RULE 2. DEFINITIONS

In these rules, the singular shall include the plural and vice-versa, and any singular personal pronoun shall include both feminine and masculine genders, and unless the context or subject matter otherwise requires:

(1) "Commission" means the Judicial Qualifications Commission.

(2) "Investigative Panel" means a division of the Commission vested with the jurisdiction to receive or initiate complaints, conduct investigations, dismiss complaints, and, upon a vote of a simple majority of the panel, submit formal charges to the hearing panel. The chair of the Commission shall be its chair.

(3) "Hearing Panel" means a division of the Commission vested with the authority to receive and hear formal charges from the Investigative Panel. The Hearing Panel, by majority vote of its members may recommend to the Supreme Court that a judge be subject to appropriate discipline. Upon a two-thirds vote, the panel may recommend to the Supreme Court the removal of a judge, as provided in Article 5, § 12, of the Constitution of the State of Florida, or the involuntary retirement of a judge for any permanent disability that seriously interferes with the performance of judicial duties.

(4) "Judge" means a justice of the Supreme Court and a judge of the District Court of Appeal, Circuit Court and County Court.

(5) "Chair" includes the acting chair.

(6) "General Counsel" means any member of The Florida Bardesignatedemployed by theCommission to serve as legal advisor to the Commission andInvestigative Panel, and to perform such other duties as authorized by the Commission to gather and present evidence before the Investigative Panel or the Hearing Panel with respect to the charges against a judge and to represent the Commission in any proceedings, related to the activities of the Commission.

(7) "Counsel to the Hearing Panel" means any member(s) of The Florida Bar, designated by theHearing PanelChair of the Commission to serve as legal advisor to the Hearing Panel. Counsel to the Hearing Panel shall act as clerk to the Hearing Panel during the trial, collect evidence, and transmit the record to the Supreme Court.

(8) "Special Counsel" means any member(s) of The Florida Bar designated by the Investigative Panel to gather and present evidence before the Investigative Panel or the Hearing Panel with respect to the charges against a judge and to represent the Commission in any proceedings, related to the activities of the Commission.

(9) "Shall" is mandatory and "may" is permissive.

(10) "Mail" and "mailed" include ordinary, registered, certified, or other form of United States mail, personal delivery, and delivery by a commercial delivery service.

(11) "Executive Director" means aperson designatedmember of The Florida Bar employed by the Commission to supervise its staff , to serve as legal advisor to the Commission and Investigative Panel, and to render such services to the Commission and its several panels as required, provided, however, that. theThe Executive Director and administrative staff will provide only ministerial or similar services to facilitate the activities of the Hearing Panel.

(12) "Member" means a member of the Commission.

(13) "Supreme Court" means the Supreme Court of Florida.

RULE 4. OFFICERS OF THE COMMISSION

The Commission shall elect a Chair and a Vice-Chair, each of whom shall serve for a term of two years. The Vice-Chair shall act as the chair of the Commission in the absence of the Chair. If both the Chair and the Vice-Chair are absent, then a majority of the members present may appoint a Chair Pro Tempore. The Commission may employ staff, including aneE xecutivedD irector and General Counsel, and such other staff as necessary to carry out its duties. The Commission will consider and decide matters relating to budget and other business of the Commission not specifically assigned to its panels. TheHearing Panel mayChair shall appoint Counsel to the Hearing Panel to serve as its legal advisor.

RULE 6. INVESTIGATIVE PANEL RULES

(a) The Investigative Panel of the Commission, upon receiving factual information, not obviously unfounded or frivolous, or an individual complaint made under oath, indicating that a judge is guilty of willful or persistent failure to perform judicial duties, or conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or conduct violative of the Code of Judicial Conduct, or that the judge has a disability seriously interfering with the performance of the judge's duties, which is, or is likely to become, permanent in nature, may make an investigation to determine whether formal charges should be instituted.

(b) The judge has no right to be present or to be heard during an investigation, but before the Investigative Panel determines that there is probable cause to initiate formal charges, the judge shall be notified of the investigation, the general nature of the subject matter of the investigation, and shall be afforded reasonable opportunity to make a statement before the Investigative Panel, personally or by the judge's attorney(s), verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct or disability, and to respond to questions from the Panel. The judge shall not have the right to present other oral testimony or evidence, nor the right of confrontation or cross-examination of any person interviewed, called or interrogated by the Investigative Panel; provided that the Investigative Panel in its sole discretion may receive and consider documentary evidence, including affidavits submitted by a judge. Such notification shall be given personally, by registered or certified mail, or by delivery by a commercial service, addressed to the judge at the judge's chambers or, if returned undelivered, at the judge's last known residence.

(c) The Investigative Panel shall have the right to require a judge to meet with it on an informal basis in reference to matters that relate to the judge's duties.

(d) When a judge has received a notice of investigation, or a notice to appear before the Investigative Panel, or has requested such notification, the judge shall be promptly notified in writing if the investigation does not disclose probable cause to warrant further proceedings.

(e) The Investigative Panel shall have access to all information from all executive, legislative and judicial agencies, including grand juries. At any time, on request of the Speaker of the House of Representatives, the Commission shall make available all information in possession of the Commission for use in consideration of impeachment.

(f) When the Investigative Panel finds probable cause that formal charges should be filed against the judge, the Investigative Panel shall file a Notice of Formal Charges with the Clerk of the Supreme Court. The Investigative Panel shall designate one or more Special Counsel who shall prepare appropriate papers and pleadings, gather and present evidence before the Hearing Panel with respect to the charges against the judge, and otherwise act as counsel in connection with the prosecution of the charges against the judge, including the representation of the Commission in connection with any Commission or judicial proceedings. The Investigative Panel shall cause to be served on the judge a copy of the Notice of Formal Charges. Such proceedings shall be styled:

"BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION"

"Inquiry Concerning a Judge, The Honorable__________, No. _____"

(g) The notice shall be issued in the name of the Commission and specify in ordinary and concise language the charges against the judge and allege the essential facts upon which such charges are based, and shall advise the judge of the judge's right to file a written answer to the charges against within 20 days after service of the notice upon the judge.

(h) Service of the notice shall be made personally, by registered or certified mail or by commercial delivery service, addressed to the judge at the judge's chambers or, if returned undelivered, at the judge's last known residence.

(i) After the notice has been filed, any notice or other material shall be mailed to the judge at the judge's chambers or residence address, or to the judge's attorney(s), if any.

(j) The notice may also include the judge's prior relevant judicial disciplinary history with the Commission and the record will be made available to the Hearing Panel to establish a pattern of conduct or to assist the Hearing Panel in recommending the appropriate sanction to the Supreme Court.

(k) The Investigative Panel may reach agreement with a judge on discipline or disability, and such stipulation shall be transmitted directly to the Supreme Court to accept or reject. If rejected, such agreement shall be without prejudice to any party thereto.

( l ) The Investigative Panel may designate filings with the Supreme Court, or portions of documents therein, as confidential. The confidential information shall be described without revealing the confidential information, consistent with the procedure contained in Rule 2.420 of the Florida Rules of Judicial Administration. The materials that may be designated as confidential include those items listed in Rule 2.420, or other medical and psychological records, or filings referencing those materials. The materials designated as confidential by the Commission shall remain so, subject to review by, and further order of the Supreme Court. (REPEALED)

RULE 8. SUSPENSION OF JUDGE

Before or after the filing of a Notice of Formal Charges, the Investigative Panel may, in its discretion, issue its order directed to the judge ordering the judge to show cause before it why that panel should not recommend to the Supreme Court that the judge be suspended from office, either with compensation or without compensation, while the inquiry is pending. The order to show cause shall be returnable before the Investigative Panel at a designated place and at a time certain, at which place and time the Investigative Panel shall consider the question of suspension and any action thereto. Factors to be considered include: the seriousness of the allegation of misconduct, the preservation of public confidence in the judicial system, the responsiveness of the judge to the disciplinary process, or whether the judge has engaged in conduct that demonstrates a present unfitness to hold office. The arrest or conviction of a crime constitutes a sufficient basis for the recommendation for suspension under this rule. Thereafter, and upon the filing of a Notice of Formal Charges with the Supreme Court, the Investigative Panel, not less than two-thirds of its members concurring, may recommend to the Supreme Court that the judge be suspended from performing the duties of office, either with or without compensation, pending final determination of the inquiry. If the Investigative Panel recommends suspension, such recommendation shall have incorporatedtherein a record of the proceedings of the Investigative Panel in relation to the order to show causethe factual basis for the recommendation.

RULE 11. SETTING FOR HEARING

After the filing of an Answer or the expiration of the time for its filing, the Hearing Panel shall set a time and place for a hearing and shall give notice of such hearing at least 20 days prior to the date set. If the judge timely requests that the hearing be held in the county of the judge's residence, it shall be so held unless the Hearing Panel, by an affirmative vote of two-thirds of its members, determines otherwise. Hearings before the Commission should be accorded precedence over most other proceedings due to the extraordinary nature of the hearing.

RULE 12. PROCEDURE

(a) Settlement Negotiations. Prior to commencement of the hearing to determine formal charges against a judge, the Investigative Panel retains the authority to enter into stipulations for proposed discipline with the judge or judge's representatives. After the commencement of the hearing to determine formal charges against a judge, the Hearing Panel shall have the authority to enter into stipulations for proposed discipline with the judge or judge's representative, which it shall incorporate into its recommendation to the Supreme Court.

(b) In all proceedings before the Hearing Panel, the Florida Rules of Civil Procedure shall be applicable except where inappropriate or as otherwise provided by these rules.

(c) Summary Judgment is not available to either party.

(d) Special Counsel shall, upon written demand of a party or counsel of record, promptly furnish the following:

The names and addresses of all witnesses whose testimony the Special Counsel expects to offer at the hearing, together with copies of all written statements and transcripts of testimony of such witnesses in the possession of the counsel or the Investigative Panel which are relevant to the subject matter of the hearing and which have not previously been furnished, except those documents confidential under the Constitution of the State. When good cause is shown this rule may be waived.

( d e ) At the time and place set for hearing, the Hearing Panel may proceed with the hearing whether or not the judge has filed an Answer or appears at the hearing.

RULE 14. EVIDENCE

(a) At a hearing before theThe Hearing Panel, legal evidence only shall be received and oral evidence shall be taken only on oath or affirmation has wide latitude to admit or exclude evidence and is not bound by the technical rules of evidence. It may admit evidence that is relevant and reliable as described in The Florida Bar v. Tobkin, 944 So.2d 219 (Fla. 2006).

(b) Past disciplinary actions by the Commission may be admitted by the Hearing Panel to demonstrate a relevant factual matter such as a pattern of conduct, or, upon a finding of guilt, to properly assess the appropriate sanction to recommend to the Supreme Court.

RULE 20. CERTIFICATION OF HEARING PANEL RECOMMENDATIONS TO SUPREME COURT

(a) If the Hearing Panel dismisses the formal charges, the Hearing Panel shall promptly file a copy of the dismissal order certified by the Chair of the Hearing Panel with the Clerk of the Supreme Court. Upon making a determination recommending discipline, retirement or removal of a judge, the Hearing Panel shall file a copy of the recommendation certified by the Chair of the Hearing Panel, together with a transcript and the findings and conclusions, with the Clerk of the Supreme Court and shall mail to the judge and to the judge's attorney(s) notice of such filing, together with a copy of such recommendations, findings , and conclusions.

(b) The Hearing Panel may designate filings with the Supreme Court, or portions of documents therein, as confidential. The confidential information shall be described without revealing the confidential information, consistent with the procedure contained in Rule 2.420 of the Florida Rules of Judicial Administration. The materials that may be designated as confidential include those items listed in Rule 2.420, or other medical and psychological records, or filings referencing those materials. The materials designated as confidential by the Commission shall remain so, subject to review by, and further order of the Supreme Court. (REPEALED)

(c) If the Hearing Panel determines to recommend removal, it may also include in its findings and recommendations that the judge be suspended with or without pay pending the final determination of the inquiry.

RULE 22. SUBPOENAS

Subpoenas for the attendance of witnesses and the production of documentary evidence shall be issued as follows:

(a) For investigative purposes, subpoenas may be issued for the attendance of witnesses and the production of documents before the General Counsel or Special Counsel with respect to any potential violation of the Code of Judicial Conduct, and counsel is empowered to administer oaths to all who are summonsed to testify or who may voluntarily appear before counsel to testify as to any potential violations of the Canons of the Code of Judicial Conduct.

(b) Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery after formal charges are filed, and for the appearance of any person beforeanythe Hearing pP anel of the Commission, may be issued by the General Counsel, Counsel to the Hearing Panel,orSpecial Counsel,or counsel for the judge, and may be served in the manner provided by law for the service of witness subpoenas in a civil action , but without cost.

(c) Contempt. Any person who, without adequate excuse, fails to obey such a subpoena of the Commission or a panel of the Commission served upon that person may be cited for contempt of the Commission in the manner provided in these rules.

RULE 25. DISQUALIFICATION OR VACANCY

(a) Whenever a judge against whom formal proceedings have been instituted, shall file with the Hearing Panel an affidavit that the judge fears the judge will not receive a fair hearing before the Hearing Panel on the charges because of the prejudice of one or more members of the Hearing Panel against the judge, and the facts stated as the basis for making the affidavit shall be supported in substance by affidavit of at least two reputable citizens of the State of Florida not kin to the judge or the judge's attorney, or if any member of the Hearing Panel shall voluntarily recuse himself, such member or members of the Hearing Panel shall proceed no further therein and shall be disqualified from hearing the charges. The affidavit shall state the facts and the reasons for the belief that any such prejudice exists, shall specify the member(s) of the Hearing Panel allegedly prejudiced and shall be filed not more than 15 days after service of the Notice of Formal Charges upon the judge chargedAfter the filing of formal charges, a judge may move to disqualify a member of the Hearing Panel.The motion shall be in writing, sworn to by the judge, and shall specifically allege the facts and reasons that establish a legally sufficient factual basis for disqualification.

(1) Grounds. A motion to disqualify shall show facts would place a reasonably prudent person in fear of not receiving a fair and impartial hearing if the Hearing Panel member participates.

(2) Time. A motion to disqualify shall be filed within a reasonable time not to exceed 15 days after the Hearing Panel members are identified, or the discovery of the facts constituting the grounds for the motion and shall be promptly presented to the Hearing Panel for an immediate ruling. A motion made during hearing shall be ruled on immediately.

(3) Determination. The Hearing Panel shall determine whether the facts alleged are sufficient to support a motion to disqualify. The matter of disqualification shall be by a majority vote of the panel.

(4) Member's Initiative. If any member of the Hearing Panel voluntarily recuses him or herself, the member shall not participate in the hearing.

(b) TheChairExecutive Director of the Commission shall request from each of the appointing authorities a list of four persons who may temporarily serve in the absence of incapacitated or disqualified members. The appointing authorities are the Conference of District Court of Appeal Judges, the Conference of Circuit Court Judges, the Conference of County Court Judges, the Board of Governors of The Florida Bar, and the Governor of Florida. Upon the disqualification of or in the absence of a member of the Hearing Panel, the replacement shall be chosen by the Chair of the Commission from those listed by the appropriate appointing authority. Each such replacement shall be from the same category as the disqualified member(s) set forth in Section 12(a), Article V of the Constitution of the State of Florida.

(c) The judge may within 15 days after receiving notice of such ad hoc appointment, file a like affidavit as to that appointee, which shall be supported in substance by an affidavit of two citizens as set forth above, in which event the ad hoc appointee shall not be disqualified on account of alleged prejudice against the judge unless the appointee admits that it is then a fact that the appointee is prejudiced against the judge, or unless a majority of the Hearing Panel, which may include any ad hoc appointee, holds that the appointee is prejudiced against the judge, in which event the same ad hoc appointment procedure set forth above shall be followed until a qualified person has been appointed.

(d) A judge moved against by the Commission may, by affidavit, suggest the disqualification of a member or members of the Commission unsupported by two citizens, but in such event the determination of the matter of disqualification shall be by majority vote of the panel having jurisdiction unless the person sought to be disqualified voluntarily recuses himself.

(e) Upon the vacancy of a position on the Commission due to resignation or ineligibility as a member of the Commission, or upon the failure of the appointing authority to timely appoint a constituent member, the Chair shall appoint an ad hoc member from a list provided by the appropriate appointing authority. Each such replacement shall be from the same category as the disqualified member(s) set forth in Section 12(a), Article V of the Constitution of the State of Florida, and shall serve only until the appointing authority selects a representative to fill the vacancy.

      The amendments originally submitted are the amendments included in the October 27, 2017, second revised appendix A to the July 24, 2017, notice of adoption. The Court published those amendments for comment. No comments were filed.

      The original confidentiality amendments consisted of amendments to relettered rule 6(k) and a new rule 20(b) that authorized the investigative and hearings panels to designate portions of filings with this Court confidential. The Commission added the following sentence to relettered rule 6(k):
      The Investigative Panel may designate portions of the filing with the Supreme Court confidential. Portions of the filings designated as confidential shall be described without revealing the confidential information and will remain so, subject to further order from the Supreme Court.
      Appendix A Second Revised at 5, In re Amends. to Fla. Jud. Qualif. Comm'n Rules , No. SC17-1362 (Fla. appendix filed Oct. 27, 2017). The Commission added new rule 20(b) to provide as follows:
      The Hearing Panel may designate portions of the record, findings, and recommendation confidential. Portions of the record designated as confidential shall be described without revealing the confidential information and will remain so, subject to further order from the Supreme Court.
      Id. at 7.

      Newly adopted rules 6(l ) and 20(b), included in the Commission's March 13, 2018, response and notice of adoption, provide that the investigative and hearing panels
      may designate filings with the Supreme Court, or portions of documents therein, as confidential. The confidential information shall be described without revealing the confidential information, consistent with the procedure contained in Rule 2.420 of the Florida Rules of Judicial Administration. The materials that may be designated as confidential include those items listed in Rule 2.420, or other medical and psychological records, or filings referencing those materials. The materials designated as confidential by the Commission shall remain so, subject to review by, and further order of the Supreme Court.
      Response to Request for Clarification; and Notice of Adoption of Amends. to Rules 6 and 20(b) of the Fla. Jud. Qualif. Comm'n at 2-3, In re Amends. to Fla. Jud. Qualif. Comm'n Rules , No. SC17-1362 (Fla. document filed Mar. 13, 2018).

      Notice of Adoption of Amendments to the Rules of the Fla. Jud. Qualif. Comm'n at 6, 10, In re Amends. to Fla. Jud. Qualif. Com'n. Rules , No. SC17-1362 (Fla. notice filed July 24, 2017); Response to Request for Clarification; and Notice of Adoption of Amends. to Rules 6 and 20(b) of the Fla. Jud. Qualif. Comm'n at 2-3, In re Amends. to Fla. Jud. Qualif. Comm'n Rules , No. SC17-1362 (Fla. document filed Mar. 13, 2018).

      Cf. In re Rules of Fla. Jud. Qualif. Comm'n , 364 So.2d 471, 471 (Fla. 1978) (repealing JQC rule purporting to establish procedures governing JQC proceedings in this Court as exceeding Commission's constitutional authority to "adopt rules regulating its proceedings" and intruding on this Court's exclusive authority to "adopt rules for the practice and procedure in all courts").

      Article I, section 24 of the Florida Constitution creates a right of access to all public records as defined by that section, which includes judicial branch records, except for those records made confidential by another section of the constitution, by a statute enacted by the Legislature, or by a court rule that was in effect when article I, section 24 was adopted.

      Art. I, § 24(d), Fla. Const.

      See In re Amends. to Fla. Rule of Jud. Admin.-Public Access to Jud. Records , 608 So.2d 472 (Fla. 1992) (adopting Florida Rule of Judicial Administration 2.051, which has been renumbered 2.420, to govern public access to judicial branch records).

      See Fla. R. Jud. Admin. 2.420(b)(1) (defining "[r]ecords of the judicial branch"); 2.420(b)(1)(A) (defining "court records").

      See Fla. R. Jud. Admin. 2.420(d)(1)-(d)(3) (listing information in court records that the clerk of court must designate and maintain confidential; providing for the filing of a notice of confidential information in court filings; and providing for the filing of motions to determine confidentiality of information in court records that may be confidential under subdivision (c) of rule 2.420 but is not listed under subdivision (d)(1) ); Fla. R. Jud. Admin. 2.420(g)(1), (g)(8) (providing for the filing of motions to determine confidentiality of appellate court records and providing that records of a lower tribunal determined to be confidential by that tribunal must be treated as confidential during any review proceedings).

      Cf. In re Implementation of Comm. on Privacy & Court Records Recommendations , 78 So.3d 1045, 1049-50 (Fla. 2011) (explaining that Florida Rule of Judicial Administration 2.425 provides the procedures for minimizing the amount of sensitive personal information included in documents being filed with the court and that rule 2.420 provides the procedures for determining the confidentiality of information after it has been filed).

      In re Amends. to Fla. Rule of Jud. Admin.-Public Access to Jud. Records , 608 So.2d at 474.

      The term "presently" as used in rule 2.420(c)(8) means at the time of the 1992 adoption of the rule. See id. at 472-73 (recognizing that proposed amendment to the Florida Constitution, which became article I, section 24, provided that all judicial branch records are public except those exempted by rule in effect on the date of the adoption of the amendment or those exempted by the Legislature and therefore constitutional amendment would prohibit the later adoption of judicial branch rules that would close any other judicial branch records).

      To avoid any revival issues, the Court repeals new rules 6(l ) and 20(b) included in the appendix to this opinion and the amendment to relettered rule 6(k) and new rule 20(b) quoted in footnote 2 of this opinion.