author: Klingensmith, J.

text:
    Martin E. O'BOYLE and Asset Enhancement, Inc., Appellants, v. TOWN OF GULF STREAM, Scott Morgan, John C. Randolph, Robert A. Sweetapple, and Joanne O'Connor, Appellees.
    No. 4D17-2725
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Robert Rivas of Sachs Sax Caplan, P.L., Boca Raton, (withdrawn as counsel after filing brief), and Jonathan R. O'Boyle of The O'Boyle Law Firm, P.C., Deerfield Beach, for appellants.
    Hudson C. Gill and Jeffrey L. Hochman of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees Town of Gulf Stream, Scott Morgan, John C. Randolph, and Joanne O'Connor.
    Therese A. Savona and Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, for appellee Robert A. Sweetapple.
   Klingensmith, J.

Appellants Martin E. O'Boyle and Asset Enhancement, Inc., ("Asset") appeal the trial court's dismissal of their Complaint to Enforce Florida's Sunshine and Public Records Laws and for Declaratory and Injunctive Relief against the Town of Gulf Stream ("the Town") and other affiliated individuals (collectively, "appellees"). We find the trial court properly dismissed the Sunshine Law claims, as well as the claims arising from alleged public meeting violations under Chapter 286, Florida Statutes, and affirm on those issues without further comment. However, we reverse the dismissal of appellants' claims under the Public Records Act, and remand for further proceedings.

In their complaint, Asset and O'Boyle alleged separate Public Records Act violations regarding two public records requests: (1) for copies of bills and payments sent to the Town for services rendered by the Town's attorney; and (2) for copies of text messages sent or received by the Town's Mayor since the time of his appointment. Asset alleged that the Town produced illegitimately redacted copies of the bills and payments. In another claim, O'Boyle asserted that the Town produced "a cherry picked" selection of texts which painted O'Boyle "in a negative light." After another records request that produced additional, previously unseen texts, O'Boyle insisted that the initial release was incomplete and that the Town and Mayor deliberately concealed records from the public.

Appellants alleged that the Town violated Article I, section 24 of the Florida Constitution and Chapter 119, Florida Statutes ("the Public Records Act" or "the Act"). They requested the trial court order the Town and others to allow the inspection, copying, and photographing of the requested records after a hearing held pursuant to section 119.11, Florida Statutes (2017). They then filed a Motion for Mandatory In-Camera Inspection of Record asking that the court review the redacted legal bills to determine if they fell within the "work product" exception of the Public Records Act, as the Town claimed. A week later, the Town turned over the bills and payment records at issue without any redactions.

Appellees each filed a motion to dismiss, and the trial court held a hearing on the parties' motions. The court dismissed the complaint and granted ten days for amendment. Instead of amending, appellants requested that a final judgment be entered, and the trial court obliged.

"A motion to dismiss tests whether the plaintiff has stated a cause of action." Bell v. Indian River Mem'l Hosp. , 778 So.2d 1030, 1032 (Fla. 4th DCA 2001). An appeal of a trial court's ruling on a motion to dismiss is an issue of law subject to de novo review. See id. The trial court's decision regarding a motion to dismiss is limited to a consideration of the allegations within the four corners of the complaint, and such allegations must be viewed in the light most favorable to the non-moving party. See id. Likewise, "[t]he determination of whether something is a public record is a question of law subject to de novo review and is determined on a case-by-case basis." Bent v. State , 46 So.3d 1047, 1049 (Fla. 4th DCA 2010) ; accord State v. City of Clearwater , 863 So.2d 149, 151 (Fla. 2003) ; Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Jud. Cir. , 840 So.2d 1008, 1013 (Fla. 2003).

The right of access to public records is a "cornerstone of our political culture," Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee , 189 So.3d 120, 124 (Fla. 2016) (further citation omitted); therefore, the Public Records Act "must be liberally construed in favor of access, and all exemptions must be limited to their stated purpose." Palm Beach Cty. Sheriff's Office v. Sun-Sentinel Co., LLC , 226 So.3d 969, 972 (Fla. 4th DCA 2017).

" Article I, Section 24(a) of the Florida Constitution grants '[e]very person ... the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf.' " Id. (alterations in original). The Act "implements this important constitutional tenet, and declares: 'It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.' " Id. (quoting § 119.01(1), Fla. Stat. (2017) ); accord Rasier-DC, LLC v. B & L Serv., Inc. , 237 So.3d 374, 376 (Fla. 4th DCA 2018). "Public custodians must allow a requested record to be inspected and copied by 'any person desiring to do so, at any reasonable time, [and] under reasonable conditions.' " Id. (alterations in original) (quoting § 119.07(1)(a), Fla. Stat. (2016) ).

To set forth a cause of action under the Act, a party must "prove they made a specific request for public records, the City received it, the requested public records exist, and the City improperly refused to produce them in a timely manner." Grapski v. City of Alachua , 31 So.3d 193, 196 (Fla. 1st DCA 2010). "Public records" include "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." § 119.011(12), Fla. Stat. (2017) ; accord Braddy v. State , 219 So.3d 803, 820 (Fla. 2017).

In line with these authorities, we consider the requests for the text messages and the attorney bills and payments separately.

Text Messages as Public Records

This is an action against a municipality to obtain records that, while potentially related to the Town's public business, are in the exclusive control of one of their elected officials. An elected official's use of a private cell phone to conduct public business via text messaging can create an electronic written public record subject to disclosure. However, for that information to indeed be a public record, an official or employee must have prepared, owned, used, or retained it within the scope of his or her employment or agency. An official or employee's communication falls "within the scope of employment or agency" only when their job requires it, the employer or principal directs it, or it furthers the employer or principal's interests.

Therefore, not all written communications sent or received by public officials or employees of a government agency are public records subject to disclosure upon request under the Act. See City of Clearwater , 863 So.2d at 150. The reach of the Act is to those records related to the employee or official's public responsibilities. For instance, "employees do not generally act within the scope of employment when they text their spouse about working late or discuss their job on social media. Nor do they typically act within the scope of employment by creating or keeping records purely for private use, like a diary." See Nissen v. Pierce Cty. , 183 Wash.2d 863, 357 P.3d 45, 54 (Wash. 2015). None of these examples would result in a public record in the usual case.

Illustratively, in City of Clearwater , a Times Publishing Company ("Times") reporter requested copies of all e-mails sent or received over the City's network by two City employees throughout the course of a year. 863 So.2d at 150. The employees sorted their e-mails into private and public categories, and the City released the "public" emails to the reporter. Id. However, Times filed an action asserting it was entitled to all emails on the City's computers. Id. at 150-51. The trial court ordered all e-mails to be obtained, preserved, and secured from destruction. Id. After a final hearing, the trial court denied Times' requests for a writ of mandamus and permanent injunctive relief. Id. On appeal, the Second District affirmed the lower court's order, but did so without prejudice to Times seeking an in-camera review of all e-mails, while also ruling that "private" e-mails were outside the Act's scope. Id.

On review, the Florida Supreme Court agreed with the Second District that "[b]ased on the plain language of section 119.011(1), ... 'private' or 'personal' e-mails 'simply fall[ ] outside the current definition of public records.' " Id. at 153 (alteration in original) (quoting Times Publ'g Co. v. City of Clearwater , 830 So.2d 844, 847 (Fla. 2d DCA 2002) ). The Court concluded that not "all e-mails transmitted or received by public employees of a government agency are public records pursuant to [the Act] by virtue of their placement on a government-owned computer system." Id. at 150 (alteration in original); accord Butler v. City of Hallandale Beach , 68 So.3d 278, 280-81 (Fla. 4th DCA 2011).

To comply with the dictates of the Act, the governmental entity must proceed as it relates to text messaging no differently than it would when responding to a request for written documents and other public records in the entity's possession-such as e-mails-by reviewing each record, determining if some or all are exempted from production, and disclosing the unprotected records to the requester. Where specified communications to or from individual state employees or officials are requested from a governmental entity-regardless of whether the records are located on private or state accounts or devices-the entity's obligation is to conduct a reasonable search that includes asking those individual employees or officials to provide any public records stored in their private accounts that are responsive to a proper request. The ability of public officials and employees to use cell phones to conduct public business by creating and exchanging public records-text messages, e-mails, or anything else-is why a process must be available to offer the public a way to obtain those records and resolve disputes about the extent of compliance. Without such a process, the Act cannot fulfill the people's mandate to have full access to information concerning the conduct of government on every level.

When judicial intervention is requested to test the adequacy of the entity's response, the court can make the requisite determination of relevance and privilege as to any contested record. And like pre-trial discovery conducted in the context of litigation, the text messages or other records that may ultimately be produced will be narrowly confined to those found to be "relevant" and "non-privileged."

Strong public policy reasons also support the conclusion that electronic information stored on privately-owned devices may be subject to disclosure under the Public Records Act. The purpose of both Article I, section 24 and Chapter 119 is to ensure that citizens may review (and criticize) government actions. That purpose would be defeated if a public official could shield the disclosure of public records by conducting business on a private device.

We acknowledge that the public's statutory right to public records does not extinguish an individual's constitutional and statutory rights in private information. But we do not read Article I, section 24 or the Public Records Act as a zero-sum choice between personal liberty and government accountability. Accordingly, the Town's reasons for its lack of disclosure, whether for reasons related to relevancy, the application of possible privileges, or otherwise, necessitates a judicial review of the available communications to identify those which are subject to disclosure and any defenses to allegations of noncompliance. Such review would ensure that a meaningful determination of relevancy and privilege can be made, disputes can be expeditiously resolved, and all legitimate privacy concerns safeguarded.

Clearly, some of the text messages reviewed by the trial court during this process could include personal or private information, and some could be the subject of legitimate claims of privilege. Deciding which ones may remain private was the very purpose of the protocol ratified by the Supreme Court's City of Clearwater decision-review these communications in-camera and afford an opportunity to raise objections to protect against disclosure of irrelevant, privileged, or otherwise non-discoverable materials. To avoid that process altogether, assuming the scope of the request was reasonable, it would have been incumbent on appellees to show some controlling authority that the Public Records Act did not apply, or otherwise prohibited, the submission of the text messages to the court for an in-camera review. No such showing was made here.

Regardless of whether any of the texts are ultimately deemed subject to disclosure, each element of O'Boyle's public records claim as stated in the complaint regarding the text messages was sufficiently pled. See Grapski , 31 So.3d at 196 ; Brandon v. Pinellas County , 141 So.2d 278, 279 (Fla. 2d DCA 1962). First, O'Boyle stated in the complaint that a specific request was made for all texts over a certain period of time. See Grapski , 31 So.3d at 196. Second, the Town received the request because it responded with a release of certain texts deemed to be public records. See id. Third, the requested public records texts existed , as was evident by their release and inclusion as an exhibit with the complaint. See id. Fourth, O'Boyle complained that a later response by the Town revealed several additional texts that were not released upon the first request , leading to the belief that there may be more available. See id.

Whether O'Boyle's individual claim proceeds further may depend on the outcome of that in-camera review. But for now, we reverse the dismissal on this count of appellants' complaint and remand for the trial court to conduct an in-camera inspection of the disputed text messages sent to and from the Town's Mayor to determine whether any qualify as public records.

Production of Redacted Attorney Bills

Following Asset's public records request for attorney billing records, the Town responded by citing work product privilege and only provided redacted copies of the requested records. After appellants filed a motion for in-camera review, but before the dismissal hearing began, the Town acquiesced and provided Asset with a complete set of unredacted billing records. As a result, the Town asserts this issue on appeal is now moot and should be dismissed. We disagree.

"An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect." Godwin v. State , 593 So.2d 211, 212 (Fla. 1992). "A moot case generally will be dismissed." Id. But there are at least three instances where an otherwise moot case will not be dismissed: (1) when questions of great public importance are raised, (2) when issues are likely to recur, or (3) "if collateral legal consequences that affect the rights of a party flow from the issue to be determined ." Id. (emphasis added); accord Paul Jacquin & Sons, Inc. v. City of Port St. Lucie , 69 So.3d 306, 308 (Fla. 4th DCA 2011).

We find the case of Cookston v. Office of Pub. Def. , 204 So.3d 480 (Fla. 5th DCA 2016), to be analogous. There, Cookston filed a petition for writ of mandamus seeking the trial court to compel the production of correspondence from the Public Defender's Office ("PDO") and an assistant public defender pursuant to the Act. Id. at 481. He also petitioned for costs. Id. The trial court found the petition for writ of mandamus moot because the PDO provided the requested documents to Cookston in full shortly after it was filed. Id. On appeal, the Fifth District held, "Cookston's petition was not moot because the court did not determine whether he was entitled to reasonable costs of enforcement pursuant to section 119.12." Id. The matter was reversed and remanded for the trial court to determine whether the PDO's delay in providing the records entitled Cookston to an award of costs. Id. ; accord Mazer v. Orange Cty. , 811 So.2d 857, 858-60 (Fla. 5th DCA 2002).

Similar to Cookston and Mazer , Asset requested records and, after filing a claim with the trial court, the records were provided in their requested form. See Cookston , 204 So.3d at 481 ; Mazer , 811 So.2d at 858-60. While it was argued in Cookston and Mazer that the issues were rendered moot, the appellate court held that collateral legal consequences affecting the rights of a party still existed-namely, the issuance of fees and costs based on improperly refused, completed, or delayed records requests. See Cookston , 204 So.3d at 481 ; Mazer , 811 So.2d at 860 ; Godwin , 593 So.2d at 212.

Like those cases, we find this claim was not moot due to the presence of collateral issues yet to be decided by the trial court-specifically, a determination whether the Town's initial redactions of the bills were proper, and whether any reasonable attorney's fees, costs, and expenses, should be awarded. We therefore reverse and remand for a determination of those issues.

Affirm in part; reverse in part; and remand for further proceedings consistent with this opinion.

Taylor and Kuntz, JJ., concur.

      Appellants filed their complaint against several other defendants, including the Town's mayor, and two of the Town's attorneys.


source: Caselaw Access Project

author: Gerber, C.J.

license: Public Domain

text:
    John P. KELLAR, Appellant, v. ESTATE OF John W. KELLAR, Appellee.
    No. 4D17-3019
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Henny L. Shomar and Douglas H. Reynolds of Tripp Scott, P.A., Fort Lauderdale, for appellant.
    Scott A. Weiss, Fort Lauderdale, for appellee.
   Gerber, C.J.

The decedent's son appeals from the circuit court's order granting the decedent's wife's petition for administration in part and denying the son's counterpetition for administration, and from the circuit court's order denying the son's motion for rehearing. We affirm both orders. The wife presented competent substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent's revocation of his will favoring the wife, and that upon the burden of proof shifting to the son, the son failed to establish, by a preponderance of the evidence, the nonexistence of undue influence. See RBC Ministries v. Tompkins , 974 So.2d 569, 572 (Fla. 2d DCA 2008) ("[O]nce a will contestant establishes the existence of the basis for the rebuttable presumption of undue influence, the burden of proof shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence.").

In reaching our conclusion, we acknowledge that the circuit court, in rendering its final order, made three erroneous factual findings regarding: whether the son drove the decedent to meet with the son's lawyer; the timing of when the guardian removed the decedent from the home in relation to a domestic disturbance between the wife and the decedent; and whether the son was a beneficiary of the decedent's earlier wills. However, viewing these few erroneous factual findings within the perspective of the circuit court's lengthy factual findings, we conclude that the erroneous factual findings were inconsequential to the circuit court's ultimate finding that the son failed to establish, by a preponderance of the evidence, the nonexistence of undue influence. Thus, the erroneous factual findings were harmless.

We also acknowledge that the circuit court, as an alternative basis for its orders, erroneously concluded the decedent's prenuptial agreement precluded the decedent from revoking his will favoring the wife. See Lindeburg v. Lindeburg , 162 So.2d 1, 2-3 (Fla. 3d DCA 1964) ("In a contract to make a will, the promisor has the right to change his will ... the right being enforced against the promisor is the contract right, and not the will, in the case of the breached contract to make a will ....") (footnotes omitted). However, that error is harmless given our affirmance of the circuit court's finding that the son failed to establish, by a preponderance of the evidence, the nonexistence of undue influence.

We conclude without further discussion that the son's other arguments on appeal, not addressed in this opinion, lack merit.

In sum, as our sister court stated in Estate of Brock , 692 So.2d 907 (Fla. 1st DCA 1996) :

It is axiomatic that the trial court's resolution of conflicting evidence will not be disturbed by a reviewing court in the absence of a clear showing of error, or that the conclusions reached are erroneous. In reviewing the trial court's findings, they must be given the benefit of all reasonable inferences that may be drawn from the evidence. Further, we are prohibited from reevaluating the evidence and substituting our judgment for that of the finder of the facts.

Id. at 913 (internal citations omitted).

Affirmed.

Levine and Klingensmith, JJ., concur.


text:
    Zachary Carlton DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-575
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from the trial court's order denying his motion for review of sentence pursuant to section 921.1402, Florida Statutes (2016). The defendant argues that neither the trial court's oral pronouncement denying the motion, nor the trial court's written order denying the motion, indicates that the court considered the factors outlined under section 921.1402. Instead, the defendant argues, the trial court's written order appears to indicate that the court merely relied on its evaluation of the factors outlined under section 921.1401, Florida Statutes (2016), when the court resentenced the defendant two years earlier.

In response, the state argues that the defendant failed to preserve this argument by not having brought this argument to the trial court's attention after the trial court's oral pronouncement and written order. The state also argues that, if the defendant is left to pursue a fundamental error argument, then no fundamental error exists because the record indicates that the court considered the section 921.1402 factors in denying the motion.

We agree with the state's two arguments. We will first summarize the procedural history, and then address the state's arguments in turn.

Procedural History

In 2016, the defendant, who as a juvenile had been convicted of first-degree murder and sentenced to life in prison without parole in 2003, filed a motion for resentencing pursuant to Horsley v. State , 160 So.3d 393 (Fla. 2015), and section 921.1401, Florida Statutes (2015). Section 921.1401 states, in pertinent part:

(2) In determining whether life imprisonment or a term of years equal to life imprisonment is an appropriate sentence, the court shall consider factors relevant to the offense and the defendant's youth and attendant circumstances, including, but not limited to:
(a) The nature and circumstances of the offense committed by the defendant.
(b) The effect of the crime on the victim's family and on the community.
(c) The defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense.
(d) The defendant's background, including his or her family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense.
(f) The extent of the defendant's participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on the defendant's actions.
(h) The nature and extent of the defendant's prior criminal history.
(i) The effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment.
(j) The possibility of rehabilitating the defendant.

Pursuant to section 921.1401, the trial court held an evidentiary hearing and entered a written order resentencing the defendant to twenty-eight years in prison. In the written order, the trial court recited section 921.1401 as quoted above, and then expressly addressed each factor one-by-one as applied to the evidence presented.

Two years later, the defendant filed a "Motion for Review of Sentence Pursuant to Section 921.1402, Florida Statutes." Section 921.1402 states, in pertinent part:

(6) Upon receiving an application from an eligible juvenile offender, the court of original sentencing jurisdiction shall hold a sentence review hearing to determine whether the juvenile offender's sentence should be modified. When determining if it is appropriate to modify the juvenile offender's sentence, the court shall consider any factor it deems appropriate, including all of the following:
(a) Whether the juvenile offender demonstrates maturity and rehabilitation.
(b) Whether the juvenile offender remains at the same level of risk to society as he or she did at the time of the initial sentencing.
(c) The opinion of the victim or the victim's next of kin. The absence of the victim or the victim's next of kin from the sentence review hearing may not be a factor in the determination of the court under this section. The court shall permit the victim or victim's next of kin to be heard, in person, in writing, or by electronic means. If the victim or the victim's next of kin chooses not to participate in the hearing, the court may consider previous statements made by the victim or the victim's next of kin during the trial, initial sentencing phase, or subsequent sentencing review hearings.
(d) Whether the juvenile offender was a relatively minor participant in the criminal offense or acted under extreme duress or the domination of another person.
(e) Whether the juvenile offender has shown sincere and sustained remorse for the criminal offense.
(f) Whether the juvenile offender's age, maturity, and psychological development at the time of the offense affected his or her behavior.
(g) Whether the juvenile offender has successfully obtained a high school equivalency diploma or completed another educational, technical, work, vocational, or self-rehabilitation program, if such a program is available.
(h) Whether the juvenile offender was a victim of sexual, physical, or emotional abuse before he or she committed the offense.
(i) The results of any mental health assessment, risk assessment, or evaluation of the juvenile offender as to rehabilitation.

Upon receiving the motion, the trial court, consistent with section 921.1402, set a sentence review hearing. At the hearing, the defendant presented evidence relevant to nearly all of the section 921.1402 factors. During closing argument, defense counsel stated:

A lot of these [921.1402] factors [were] already considered in the re-sentencing and the Court has already found these factors and considered them. However, there are ... in terms of maturity, the victim input ... this part is different because it considers risk assessment ... what he has done to rehabilitate, and has to make a determination if, in fact, he has been rehabilitated.

The trial court orally pronounced it was denying the motion for review. The court's oral pronouncement did not expressly mention section 921.1402 or its factors by number or name. Instead, the court stated:

[Y]ou've done all of these classes and you obviously are trying to better yourself .... I do agree that you do have a low risk for reoffending. And I think you were called a role model in prison, and ... you have made some significant positive strides. ... But at this point, I do not believe a modification of your sentence is appropriate .... I don't want you to misconstrue the fact that I don't address and recognize the positive steps that you've taken. But I just do not believe a modification is appropriate right now.

The court then entered a written order denying the motion for review. See § 921.1402(7), Fla. Stat. (2015) ("If the court determines that the juvenile offender has not demonstrated rehabilitation or is not fit to reenter society, the court shall issue a written order stating the reasons why the sentence is not being modified .") (emphasis added). Although the court's written order did not expressly mention section 921.1402 or its factors by number or name, the court entitled its order as an "Order on Motion for Review of Sentence." The court's order then stated, in pertinent part:

Defendant [ ] had a resentencing hearing in 2016 pursuant to Florida Statutes 921.1401.... [T]his Court resentenced the Defendant, who was previously sentenced to life without parole[,] to 28 years in the department of corrections with credit for the time he had previously served. In this Court's [resentencing] Order (Attached as Exhibit A) ... the relevant resentencing factors delineated under Florida Statutes 921.1401 were extensively analyzed and examined. Then almost 2 ... years later, the Defendant filed [the instant] Motion for Review of Sentence ....
... While it is apparent that the Defendant has made positive strides while in prison ... by taking classes and learning a trade and is capable of rehabilitation, not much has changed in 18 months [since the defendant's resentencing]. This Court still does not believe the Defendant has been fully rehabilitated ... nor does [the Court] reasonably believe the Defendant is fit to reenter society at this time. This court incorporates by reference all the analysis and reasoning in its [resentencing] Order. Therefore, modification of the Defendant's sentence is not appropriate at this time.

After the trial court's oral pronouncement, the defendant did not object or seek to clarify whether the court based its denial on its consideration of the section 921.1402 factors, or merely relied on its earlier evaluation of the section 921.1401 factors. Similarly, after the court entered its written order, the defendant did not file a Florida Rule of Criminal Procedure 3.800(b)(1) or 3.850(a)(1) motion seeking to clarify whether the trial court based its denial on its consideration of the section 921.1402 factors, or merely relied on its earlier evaluation of the section 921.1401 factors.

Instead, the defendant filed this appeal. The defendant argues that neither the trial court's oral pronouncement nor the trial court's written order indicates that the court considered the section 921.1402 factors. Instead, the defendant argues, the trial court's written order, incorporating the earlier 921.1401 resentencing order, appears to indicate that the court merely relied on its earlier evaluation of the section 921.1401 factors.

In response, the state argues that the defendant failed to preserve this argument by not having brought this argument to the trial court's attention after the trial court's oral pronouncement and written order. The state also argues that, if the defendant is left to pursue a fundamental error argument, then no fundamental error exists because the record indicates that the court considered the section 921.1402 factors in denying the motion.

Our Review

We agree with the state's two arguments. We address each in turn.

First, the defendant's argument was not preserved. After the trial court's oral pronouncement, the defendant did not object or seek to clarify whether the trial court based its denial on its consideration of the section 921.1402 factors, or merely relied on its earlier evaluation of the section 921.1401 factors. Similarly, after the court entered its written order, the defendant did not file a Florida Rule of Criminal Procedure 3.800(b) motion seeking to clarify whether the trial court based its denial on its consideration of the section 921.1402 factors, or merely relied on its earlier evaluation of the section 921.1401 factors. Thus, the defendant's argument was not preserved. See Fla. R. App. P. 9.140(e) ("A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b)."); Hobgood v. State , 166 So.3d 840, 845 (Fla. 4th DCA 2015) ("A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b).") (citation and quotation marks omitted).

Second, we see no fundamental error. See Hayward v. State, 24 So.3d 17, 41 (Fla. 2009) (fundamental error is "an error that goes to the foundation of the case ... and is equivalent to a denial of due process") (citations and internal quotation marks omitted). Nothing in the record suggests that the trial court was confused or that the court did not consider the section 921.1402 factors. On the contrary, the court's oral pronouncement alluded to some of the section 921.1402 factors:

[Y]ou've done all of these classes and you obviously are trying to better yourself .... I do agree that you do have a low risk for reoffending. And I think you were called a role model in prison, and ... you have made some significant positive strides .... But at this point, I do not believe a modification of your sentence is appropriate .... I don't want you to misconstrue the fact that I don't address and recognize the positive steps that you've taken. But I just do not believe a modification is appropriate right now.

Similarly, the court's written order also alluded to some of the section 921.1402 factors:

While it is apparent that the Defendant has made positive strides while in prison ... by taking classes and learning a trade and is capable of rehabilitation, not much has changed in 18 months [since the defendant's resentencing]. This Court still does not believe the Defendant has been fully rehabilitated ... nor does [the Court] reasonably believe the Defendant is fit to reenter society at this time.

Based on the foregoing, we cannot say that the trial court fundamentally erred in the manner in which it expressed its denial of the defendant's motion for review, much less committed any error at all.

Conclusion

With the benefit of appellate hindsight, we can say that this appeal may have been avoided if the trial court's written order denying the defendant's motion for review would have recited section 921.1402 as quoted above, and then expressly addressed each factor one-by-one as applied to the evidence presented. However, we also recognize that section 921.1402(7)'s plain language ("[T]he court shall issue a written order stating the reasons why the sentence is not being modified.") does not require such detail. Nevertheless, trial courts may wish to consider addressing each 921.1402 factor as a better practice to ensure the appearance of compliance with the Legislature's directives.

Affirmed.

Levine and Klingensmith, JJ., concur.


author: Gross, J.

text:
    Kelvin DORCELY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1272
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR REHEARING
   Gross, J.

We grant appellant's motion for rehearing, withdraw our opinion dated September 12, 2018, and substitute the following.

The issue in this case is whether Kelvin Dorcely's due process rights were violated when the court found him unsuitable for juvenile sanctions, revoked his juvenile sanction, and resentenced him as an adult. We affirm the lower court's orders in all respects and write to address the propriety of the proceedings conducted below.

Section 985.565, Florida Statutes (2016), addresses sentencing powers and disposition alternatives for children prosecuted as adults. Section 985.565(4)(b) allows the court to impose juvenile sanctions in some cases. If juvenile sanctions fail, however, section 985.565(4)(c) allows the court to "revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose ...."

In this case, Dorcely was sentenced under section 985.565(4)(b) to juvenile probation. His disposition order contained the following language:

THE YOUTH IS PLACED ON NOTICE THAT THE COURT MAY REVOKE THIS FINDING OF DELINQUENCY AND RESENTENCE THE YOUTH TO ADULT SANCTIONS SHOULD THE YOUTH PROVE UNSUITABLE FOR JUVENILE SANCTIONS ....

Several months after he was placed on probation, the Department of Juvenile Justice ("DJJ") found that Dorcely was non-compliant with the court-ordered sanctions, demonstrated anti-social behaviors, and displayed disregard for authority figures. The DJJ filed a violation report and an "affidavit of unsuitability" under section 985.565(4)(c), alleging that Dorcely was unsuitable for juvenile sanctions because he had violated the terms of his juvenile probation.

Section 985.565(4)(c) requires "a hearing" and allows the court to find a child unsuitable for juvenile sanctions "if the child commits a new violation of law while under juvenile sanctions, if the child commits any other violation of the conditions of juvenile sanctions, or if the child's actions are otherwise determined by the court to demonstrate a failure of juvenile sanctions." Id. The hearing must be an evidentiary hearing and the defendant must be given adequate notice and the opportunity to prepare and participate. Jones v. State , 336 So.2d 1172, 1174-75 (Fla. 1976) (evidentiary hearing required); Powell v. State , 606 So.2d 486, 488 (Fla. 5th DCA 1992) (defendant entitled to adequate notice and opportunity to obtain and prepare witnesses, notice to the parents, and an updated predisposition report).

Here, Dorcely had two evidentiary hearings: an unsuitability hearing under section 985.565(4)(c), and a resentencing hearing under section 985.565(3). Following the presentation of evidence and argument by counsel at the unsuitability hearing, the court found that it was "abundantly clear ... that Mr. Dorcely is not suitable for juvenile sanctions." A year later, the court conducted the resentencing hearing and sentenced Dorcely as an adult to ten years in prison.

Dorcely makes two arguments on appeal. First, he argues that the trial court lacked authority to revoke his juvenile sanction because the DJJ only found him unsuitable for the juvenile sanction of probation, the DJJ had not concluded that he was unsuitable for all juvenile sanctions. We find that the court's order, revoking Dorcely's juvenile sanction and imposing an adult sentence, is supported by the plain, unambiguous language of section 985.565. The statute reads:

If a child proves not to be suitable to a commitment program, juvenile probation program, or treatment program under paragraph (b), the department shall provide the sentencing court with a written report outlining the basis for its objections to the juvenile sanction and shall simultaneously provide a copy of the report to the state attorney and the defense counsel. The department shall schedule a hearing within 30 days. Upon hearing, the court may revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose ....

§ 985.565(4)(c) (emphasis added).

The plain language used by the Legislature reveals that the DJJ must commence unsuitability proceedings when a child proves "not to be suitable to a commitment program, juvenile probation program, or treatment program." The Legislature's choice of an indefinite article ("a") before the list of juvenile programs indicates that unsuitability proceedings must be commenced by the DJJ if a child is deemed unsuitable for any (not all) of the enumerated juvenile programs.

The second clause of the section's first sentence mandates that the DJJ outline "the basis for its objections to the juvenile sanction." The Legislature's choice of a definite article ("the") preceding the phrase "juvenile sanction" indicates that the Legislature intended to have the child brought back to court whenever the specific sanction actually imposed has failed.

Under the statute, the DJJ has the responsibility to report the failure of a juvenile sanction - whatever sanction was actually imposed. After the DJJ commences the unsuitability proceeding, the judge has the discretion to find the child unsuitable for all juvenile sanctions. Here, the trial court did not exceed its authority under the statute because the statute does not require that the DJJ find a failure of all juvenile sanctions before the court can determine the child is not suitable for future juvenile sanctions.

Dorcely's second argument urging reversal is procedural. He argues that the trial court erred when it allowed the State to introduce hearsay evidence at the unsuitability hearing. We find the error, if any, was harmless. There was competent, substantial, non-hearsay evidence upon which the court could rely in finding the child was not suitable for juvenile sanctions.

We find that the trial court afforded Dorcely due process before finding him unsuitable for juvenile sanctions and imposing an adult sentence. The DJJ abided by the express language of the statute when it commenced the unsuitability proceeding after Dorcely proved not suitable for juvenile probation. The court noticed and conducted an evidentiary unsuitability hearing. The court's finding that Dorcely was not suitable for juvenile sanctions is supported by competent substantial evidence. The court's subsequent decision to revoke Dorcely's juvenile sanction and impose an adult sentence is permitted by the plain language of the statute.

Affirmed .

Conner and Klingensmith, JJ., concur.

      Dorcely's underlying offense was attempted armed robbery.


author: Forst, J.

text:
    Joshua E. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1511
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Joshua Wallace was convicted of aggravated battery with a firearm and trespass in a structure. He was sentenced to twenty-five years in prison. Appellant raises seven issues on appeal. We affirm on all issues, writing only to address Appellant's challenge to the trial court's sentencing; specifically, its failure to sentence Appellant as a youthful offender.

Background

Appellant was not yet eighteen years old on the day of the offenses for which he was convicted. On that day, Appellant's uncle attempted to steal an unoccupied, idling car parked outside of a Burger King. The driver of the car, who had gotten out to look for his friend, looked back and saw what was happening. He ran to the car, and managed to reach in and put the car in neutral. The driver then began struggling with Appellant's uncle. Appellant responded by firing a weapon at the driver of the car, with shots hitting the driver in his back and knees. The driver was able to reach into the car and drive off. Appellant, his uncle, and a third person fled the scene, and entered a shed that was located on private property. Appellant was arrested and identified as the shooter by the driver, an eyewitness, and the third person who fled with Appellant and his uncle. He was charged for carjacking with a firearm that inflicted great bodily harm and burglary while armed with a firearm; he was convicted of the lesser-included offenses of aggravated battery and trespass.

After the jury returned its verdict, the trial court considered its sentencing options and heard evidence on Appellant's request for a youthful offender sentence of six years, as opposed to the otherwise minimum sentence of twenty-five years. The trial court indicated several times that it did not like the narrowness of its sentencing choices and wished it had "more discretion in cases like this."

After hearing arguments from both parties regarding a youthful offender sentence rather than a twenty-five year sentence, the trial court informed the parties that it would pronounce the sentence at a later date. The trial judge stated that he wanted "to give [himself] just a little additional time after considering everything." The trial judge then advised that he would give "some random thoughts which should give no one comfort or discomfort":

In a general sense-and I'm not making any specific findings at this time-but in a general sense youthful offender sentence is not appropriate in a case where someone shoots another individual.
I sat through this trial, I heard the evidence, the clip was unloaded and an individual was shot and struck twice. That individual could be dead; we could be facing a Murder case as opposed to an Aggravated Battery case.
So in a general sense, youthful offender in cases where there's been a discharge with actual physical injury in my view is not the type of case ought to be receiving a youthful offender sentence.
On the other hand, what I've expressed before is I also don't think my hands should be tied to 25 years, so I don't think that in all circumstances is an appropriate sentence particularly when you're dealing with a 17 year old.
But that's the legal sentence that should be imposed if a youthful offender sentence is not to be imposed and is not appropriate.
And I'm just basically telling both sides I'm not comfortable with my choices, but those are my choices and this is my job. So I will pronounce a legal sentence on Friday, but I do want to have at least a little additional time to let all of this percolate.
I wish I had some discretion between the 6 and 25, I don't, it's that. That's my discretion. It's either I pronounce a YO with a maximum of 6 years or I pronounce 25; those are my only choices at this point.
So I have to make that choice and I will, but it's not a comfortable position and I-you know if the Legislature decides to change that, they will. I don't think they're going to, but it's just not a comfortable position to be in.
So rather than just knee jerk after the evidence and the testimony, I think I need to think about this just a little bit longer and decide how I want to sentence. But I know what I have to do, and I'm going to pronounce a legal sentence. And the fact that I find it uncomfortable or disturbing is of no moment, that's my job.

One week later, the trial court pronounced a sentence of twenty-five years (with review after twenty years) for the aggravated battery with firearm conviction, noting that "the bottom line is this; this crime cannot be punished by a YO sentence ... given the nature and circumstances of the crime."

Analysis

As Appellant failed to raise an objection to the sentence, it is reviewed for fundamental error. Fundamental error occurs when a trial court refuses to consider a legislatively authorized sentencing option as a matter of policy, and its occurrence is a pure question of law reviewed de novo. Cromartie v. State , 70 So.3d 559, 563 (Fla. 2011). "[A]n error that improperly extends the defendant's incarceration or supervision would likely impress us as fundamental." Id. at 564 (quoting Maddox v. State , 760 So.2d 89, 100 (Fla. 2000) ).

Appellant argues that the trial court failed to give proper consideration to the request for a youthful offender sentence and, rather than exercising its discretion, followed a "general policy of not imposing a youthful offender sentence when the offender discharged a gun and caused physical injury."

In his initial brief, Appellant principally relies upon Little v. State , 152 So.3d 770 (Fla. 5th DCA 2014). Little , however, is clearly distinguishable, as the trial court in that case informed the parties that "[w]hen a jury finds a defendant guilty, I don't downward depart," because doing so would "be showing the jury such disrespect by not considering their views of the facts." Id. at 772. The district court determined that the trial court's "arbitrary policy" constituted reversible fundamental error. Id. at 771. The trial court in Little did not have a general policy-it had a hard and fast rule. Unlike the present case, where the court took extra time to consider its options, the trial court in Little informed defense counsel that there was no need to "waste your breath." Id. at 772.

In his reply brief, Appellant discusses this Court's recent opinion in DeSantis v. State , 240 So.3d 751 (Fla. 4th DCA 2018), issued shortly after the initial brief was filed. In DeSantis , the same trial judge who sentenced Appellant in the instant case similarly denied a request for a youthful offender sentence. Id. at 752. There, the defendant had been convicted of manslaughter, after accidentally shooting a friend after drinking alcohol and smoking marijuana. Id. The trial court once again decried its limited options of a six-year youthful offender sentence and the otherwise minimum sentence of roughly twelve years. Id. at 753. After noting that "it is a very, very difficult type of case to deal with," the trial court stated "I have told you from the beginning, the loss of a life, the taking of a life, I do not view as a youthful offender sentence ," and "there are consequences to taking a life, and those consequences do not involve a youthful offender sentence." Id.

We reversed the sentence and remanded for sentencing by another judge, finding that the emboldened sentence "reveals that prior to hearing the case, the trial court had determined it would not use its discretion to impose a youthful offender sentence." Id. at 754.

In the instant case, the trial court did not announce such a "predetermined policy." See id. To the contrary, the trial court alluded to a general policy, and announced that it would not immediately pronounce a sentence because "I need to think about this just a little bit longer and decide how I want to sentence." We note that the trial court was not using more innocuous language in response to our DeSantis opinion, as this sentencing occurred well before the issuance of that opinion. Denying a request for a youthful offender status "given the nature and circumstances of the crime" does not lead to the conclusion that the trial court had an ipso facto sentencing policy for shootings, as distinguished from the same judge's expressly stated policy in cases involving a death.

Conclusion

The trial court here wrestled with its options before rejecting a youthful offender sentence based on "the nature and circumstances of the crime." This was not the application of an arbitrary or predetermined sentencing policy. Accordingly, as to this issue as well as the other issues raised on appeal, we affirm.

Affirmed.

Levine, J., concurs.

Taylor, J. dissents with opinion.

I respectfully dissent as to the sentencing issue discussed in the majority opinion. It is well-settled that "judicial application of a policy against consideration of a lawful sentence is a violation of a defendant's due process." Pressley v. State , 73 So.3d 834, 837 (Fla. 1st DCA 2011). Here, the trial court fundamentally erred in applying a general sentencing policy that a "youthful offender sentence is not appropriate in a case where someone shoots another individual."

The present case is not materially distinguishable from our recent precedent in DeSantis v. State , 240 So.3d 751 (Fla. 4th DCA 2018). In DeSantis , we held that the same trial judge who sentenced the defendant (Wallace) in this case fundamentally erred in expressing a sentencing policy that "the loss of a life, the taking of a life, I do not view as a youthful offender sentence." Id. at 754. We explained: "Despite the trial court's evaluation of the required factors during the sentencing hearing, the statement reveals that prior to hearing the case, the trial court had determined it would not use its discretion to impose a youthful offender sentence. This predetermined policy requires us to reverse." Id.

Similarly, in this case, the trial court twice expressed a "general sense" that a youthful offender sentence was not appropriate where someone shoots another individual. In other words, the trial judge indicated that he would not ordinarily impose a youthful offender sentence in shooting cases as a general policy, even though the legislature has not adopted such a policy in the statute governing youthful offender sentencing. See § 958.04, Fla. Stat. (2016). This was improper.

Despite the trial court's evaluation of mitigating factors during the sentencing hearing, the comments at issue reveal that the trial court had a predetermined general policy that it would not use its discretion to impose a youthful offender sentence in shooting cases. While the trial court did at least consider deviating from this general policy due to the harsh 25-year minimum mandatory sentence that would otherwise apply, the trial court ultimately concluded that the "bottom line" was that "this crime cannot be punished by a YO sentence."

In short, the trial court's sentencing decision relied, at least in part, on a predetermined general policy that a youthful offender sentence is not appropriate where someone shoots another individual. At a minimum, the State has failed to meet its burden to show that the trial court did not rely on an impermissible predetermined policy in imposing sentence. See Strong v. State , 43 Fla. L. Weekly D1393, 254 So.3d 428, 431, 2018 WL 3060219, *3 (Fla. 4th DCA June 20, 2018) ("It is the State's burden to show that the trial court did not rely on impermissible factors in sentencing.").

We should reverse and remand for resentencing before a different judge. See DeSantis , 240 So.3d at 751.

      See § 921.0026(2)(l ); § 958.04, Fla. Stat. (2016).


author: Levine, J.

text:
    G.A.Q.L., a minor, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-1811
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Eric T. Schwartzreich of Schwartzreich & Associates, P.A., Fort Lauderdale, and Jason Alan Kaufman of Kaufman Legal Group, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for respondent.
   Levine, J.

Two passcodes stand in the way of the state accessing the contents of a phone alleged to belong to a minor. The state sought, and the trial court agreed, to compel the minor to provide two passcodes, finding that "the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion." We disagree. The minor is being compelled to "disclose the contents of his own mind" by producing a passcode for a phone and a password for an iTunes account. Further, because the state did not show, with any particularity, knowledge of the evidence within the phone, the trial court could not find that the contents of the phone were already known to the state and thus within the "foregone conclusion" exception. We grant the minor's petition for writ of certiorari and quash the trial court's order compelling the disclosure of the two passcodes.

The minor was speeding when he crashed. One of the passengers in his car died in the crash. At the hospital, the police had a blood test performed, showing that the minor had a .086 blood-alcohol content.

After obtaining a search warrant for the vehicle, the police located two iPhones. One iPhone belonged to a surviving passenger. The surviving passenger told police that the group had been drinking vodka earlier in the day and that she had been communicating with the minor on her iPhone.

The second phone, an iPhone 7, was alleged to have belonged to the minor. The police obtained a warrant to search the phone for data, photographs, assigned numbers, content, applications, text messages, and other information. After obtaining a warrant to search this iPhone, the police sought an order compelling the minor to provide the passcode for the iPhone and the password for an iTunes account associated with it.

In its first motion, the state identified the iPhone and "request[ed] the court compel production of the passcode for the minor's cellular phone." In its second motion, the state sought to compel the minor to produce an iTunes password. This was necessary, the state argued, because the phone could not be searched before receiving a software update from Apple's iTunes service. Thus, the state needed both the passcode to access the phone and the iTunes password to update it.

At a hearing on the motions, the state noted that the surviving passenger from the car crash had provided a sworn statement that on the day of the crash and in the days following the crash, she had communicated with the minor via text and Snapchat. The passenger had also told police that she and the minor had been consuming alcoholic beverages the day of the crash. As such, the state needed the phone passcode and iTunes password to obtain any possible communications between the defendant and the surviving passenger.

The minor argued that compelling disclosure of the iPhone passcode and iTunes password violated his rights under the Fifth Amendment to the United States Constitution. The trial court disagreed and concluded in its order that the minor's "passcodes are not testimonial in and of themselves. See State v. Stahl , 206 So.3d 124, 134 (Fla. 2d DCA 2016). The passcodes merely allow the State to access the phone, which the State has a warrant to search. See id. " According to the trial court, the state had established the "existence, possession, and authenticity of the documents" it sought. Thus, the "existences of the passcodes in the instant case is a foregone conclusion." Finally, the trial court determined that the act of producing the passcode and password was not testimonial. As a result, the trial court granted the state's motions to compel.

The minor petitioned for writ of certiorari to quash the circuit court's order. This court has jurisdiction to issue a writ of certiorari under article V, section 4(b)(3) of the Florida Constitution. See also Appel v. Bard , 154 So.3d 1227, 1228 (Fla. 4th DCA 2015) (granting certiorari to review order compelling answers to deposition questions and overruling Fifth Amendment privilege objections); cf. Boyle v. Buck , 858 So.2d 391, 392 (Fla. 4th DCA 2003). Our standard of review when considering whether to issue such a writ is "whether the trial court ... departed from the essential requirements of law." Anderson v. E.T. , 862 So.2d 839, 840 (Fla. 4th DCA 2003) (citation omitted). To warrant a writ of certiorari, "there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc. , 889 So.2d 812, 822 (Fla. 2004)

(citation and internal quotation marks omitted).

Compelled Production of the Passcodes

This case is governed by the Fifth Amendment to the United States Constitution, which states: "No person ... shall be compelled in any criminal case to be a witness against himself ...." U.S. Const. amend. V ; see also Fla. Const. art. I, § 9. The Fifth Amendment proscribes the compelled production of an incriminating testimonial communication. Fisher v. United States , 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

"[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself." Doe v. United States , 487 U.S. 201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (footnote omitted). As such, acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to "disclose any knowledge he might have" or "speak his guilt." Id. at 211, 108 S.Ct. 2341 (citation omitted). In other words, the Fifth Amendment is triggered when the act compelled would require the suspect "to disclose the contents of his own mind" to explicitly or implicitly communicate some statement of fact. Curcio v. United States , 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957).

In his famous dissent in Doe , Justice Stevens utilized an analogy to describe the scope of the Fifth Amendment protection against self-incrimination: "[A defendant] may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe-by word or deed." Doe , 487 U.S. at 219, 108 S.Ct. 2341 (Stevens, J., dissenting). Applying this analogy to the act of producing documents responsible to a subpoena, the Supreme Court once observed, "[t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox." United States v. Hubbell , 530 U.S. 27, 43, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Thus, when the compelled act is one of testimony rather than simple surrender, the Fifth Amendment applies. See Fisher , 425 U.S. at 411, 96 S.Ct. 1569.

This analogy has been invoked with some frequency as courts have grappled with whether being forced to produce a phone password is more akin to surrendering a key or revealing a combination. See, e.g., State v. Stahl , 206 So.3d 124 (Fla. 2d DCA 2016) ; In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 , 670 F.3d 1335 (11th Cir. 2012) ; United States v. Kirschner , 823 F.Supp.2d 665 (E.D. Mich. 2010) ; Seo v. State , No. 29A05-1710-CR-2466, 109 N.E.3d 418, 2018 WL 4040295 (Ind. Ct. App. Aug. 21, 2018).

All of these password cases, with the exception of Stahl , have determined that the compelled production of a passcode is more akin to revealing a combination than producing a key. This is so because revealing one's password requires more than just a physical act; instead, it probes into the contents of an individual's mind and therefore implicates the Fifth Amendment. See Kirschner , 823 F.Supp.2d at 669. The very act of revealing a password asserts a fact: that the defendant knows the password. See Hubbell , 530 U.S. at 43, 120 S.Ct. 2037 (stating that the Fifth Amendment applies "to the testimonial aspect of a response to a subpoena seeking discovery" of sources of potentially incriminating information). Thus, being forced to produce a password is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination. See id. at 38, 120 S.Ct. 2037 ("Compelled testimony that communicates information that may 'lead to incriminating evidence' is privileged even if the information itself is not inculpatory.") (quoting Doe , 487 U.S. at 208 n.6, 108 S.Ct. 2341 ).

In accepting this interpretation of Fifth Amendment doctrine, we disagree with the Second District's Stahl opinion. In Stahl , officers sought to search a defendant's locked phone, but the defendant refused to give them his passcode. 206 So.3d at 128. The Second District concluded that making the defendant reveal his passcode was not testimonial, as the passcode was "sought only for its content and the content has no other value or significance," making communication of the passcode non-testimonial. Id. at 134. The court explicitly rejected the notion of passcode-as-combination under the Doe analogy and determined that, although it did require the use of the defendant's mind, compelled unlocking of the phone via passcode was not a protected testimonial communication under the Fifth Amendment. Id. We disagree.

We find the Eleventh Circuit's decision in In re Grand Jury Subpoena to be instructive. In that case, John Doe was served a subpoena requiring him to decrypt several hard drives in his possession. 670 F.3d at 1337. There, the court determined that compelled decryption of hard drives was testimonial in nature. Id. at 1346. In reaching this conclusion, the court noted that "decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." Id. Specifically addressing the "key" and "combination" analogy, the court likened the forced decryption to production of a combination because it is "accompanied by ... implied factual statements" and utilized the contents of the mind with the final objective not of obtaining the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption. Id.

Thus, this case is analogous to In re Grand Jury Subpoena . Here, the state seeks the phone passcode not because it wants the passcode itself, but because it wants to know what communications lie beyond the passcode wall. If the minor were to reveal this passcode, he would be engaging in a testimonial act utilizing the "contents of his mind" and demonstrating as a factual matter that he knows how to access the phone. See id. As such, the compelled production of the phone passcode or the iTunes password here would be testimonial and covered by the Fifth Amendment. Id.

The Foregone Conclusion Exception

Having determined that the production of the passcode and password are covered by the Fifth Amendment, we now address whether the "foregone conclusion" exception would nevertheless allow the state to compel the minor to reveal the passcode and password. We discuss this issue since the trial court applied the foregone conclusion exception below when it concluded that "the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion." Although the foregone conclusion exception might apply in some circumstances, it does not apply here. The trial court therefore erred in relying on the foregone conclusion exception as a basis for allowing the production of the passcodes.

In general, if the state can meet the requirements of the foregone conclusion exception, it may compel otherwise ostensibly self-incriminating testimonial production of information. Fisher , 425 U.S. at 411, 96 S.Ct. 1569 ; In re Grand Jury Subpoena , 670 F.3d at 1345-46. Under this exception, an act of production is not a violation of the Fifth Amendment-even if it conveys a fact-if the state can show with reasonable particularity that, at the time it sought to compel the act of production, it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion. Id. at 1346. As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity "that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic." Id. at 1349 n.28.

It is critical to note here that when it comes to data locked behind a passcode wall, the object of the foregone conclusion exception is not the password itself, but the data the state seeks behind the passcode wall. See id. at 1349 (holding that foregone conclusion exception did not apply to compelled production of encrypted files because government could not show with "reasonable particularity" that files existed on the drive to which the individual who was subpoenaed had access). To find otherwise would expand the contours of the foregone conclusion exception so as to swallow the protections of the Fifth Amendment. For example, every password-protected phone would be subject to compelled unlocking since it would be a foregone conclusion that any password-protected phone would have a passcode. That interpretation is wrong and contravenes the protections of the Fifth Amendment.

Below and on appeal, the state's argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that "because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner's cell phone, and that he can access the content of his phone," the compelled search was acceptable. Similarly, the trial court specifically held that the "existence, custody, and authenticity of the passcodes are a foregone conclusion" in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark.

On this subject, we again disagree with the Second District. In Stahl , the court focused on the "reasonable particularity that the passcode exists," a fact that the state had established. 206 So.3d at 136 (emphasis in original). However, this is not the proper focus of the inquiry-it is not enough to know that a passcode wall exists, but rather, the state must demonstrate with reasonable particularity that what it is looking for is in fact located behind that wall. See In Re Grand Jury Subpoena , 670 F.3d at 1348-49. Contrary to the Stahl court's conclusion, which the trial court adopted, the "evidence sought" in a password production case such as this is not the password itself; rather, it is the actual files or evidence on the locked phone. Compare Stahl , 206 So.3d at 135, with In Re Grand Jury Subpoena , 670 F.3d at 1347. Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case "plainly fall outside" of the foregone conclusion exception and amount to a mere fishing expedition. Hubbell , 530 U.S. at 44, 120 S.Ct. 2037.

The concurrence, meanwhile, argues that the foregone conclusion exception could never be applied to compelled "oral testimony" in any case. Like Stahl , this view seems to misconstrue the object of the foregone conclusion exception. It is not the verbal recitation of a passcode, but rather the documents, electronic or otherwise, hidden by an electronic wall that are the focus of this exception. Further, it would seem unreasonable not to subject documents protected by a passcode to the foregone conclusion exception where the state compels the subject to orally recite a passcode, but allow the foregone conclusion exception to apply to protected documents where the state compels the subject, for example, to physically write down a password, effectively creating the document. In both scenarios the subject is compelled to disclose the "contents of his mind" by different modalities-written in one scenario and oral in the other-to the same inculpatory effect. See Couch v. United States , 409 U.S. 322, 328, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) ("It is extortion of information from the accused himself that offends our sense of justice.") (emphasis added). However, in any event, since the state did not know with "reasonable certainty" the electronic documents behind the wall, this is not dispositive to the resolution of this case.

Here, the state's subpoena fails to identify any specific file locations or even name particular files that it seeks from the encrypted, passcode-protected phone. Instead, it generally seeks essentially all communications, data, and images on the locked iPhone. The only possible indication that the state might be seeking anything more specific was the prosecutor's statement at the hearing that the surviving passenger had been communicating with the minor via Snapchat and text message on the day of the accident and after the accident, a fact that the trial court briefly mentioned in its order but did not appear to rely on in reaching its conclusion.

However, this stand-alone statement is not enough to meet the "reasonable particularity" requirement of the foregone conclusion exception. Even if the state had argued that the evidence on the phone was a foregone conclusion-which it did not-this record does not indicate that the state can say with reasonable particularity that the Snapchat and text files are located on the phone. It is not enough for the state to infer that evidence exists-it must identify what evidence lies beyond the passcode wall with reasonable particularity. Stahl , 206 So.3d at 135-36 ; see also In re Grand Jury Subpoena , 670 F.3d at 1347 ("[C]ategorical requests for documents the government anticipates are likely to exist simply will not suffice."). Thus, as was the case in In re Grand Jury Subpoena , the foregone conclusion exception is inapplicable. See 670 F.3d at 1349.

We also find Seo persuasive. Like in this case, there the state sought to compel a defendant to unlock her iPhone in order to search it. 109 N.E.3d at 421, 2018 WL 4040295 at *2. After holding that doing so would implicate the Fifth Amendment, the Court of Appeals of Indiana concluded that the foregone conclusion exception did not apply. Id. at 431-33 at *11-12. It noted that the government seeking to compel the production of a passcode must "be able to describe with reasonable particularity the documents or evidence it seeks to compel." Id. at 432 at *12. Importantly, the court observed that "[w]hat is being compelled here is not merely the passcode," but the contents of the phone that are instantly decrypted in their entirety upon inputting the passcode. Id. at 434 at *13. Because the state could not meet its burden of identifying the contents-that is, the actual phone data-sought with reasonable particularity, the foregone conclusion exception did not apply. Id.

The state here seeks to force the minor to produce the passcode and iTunes password for an iPhone. To do so would be to compel testimonial communications in violation of the minor's invocation of his Fifth Amendment rights. See In re Grand Jury Subpoena , 670 F.3d at 1346. Additionally, the trial court erred in relying on the foregone conclusion exception, as the requirements of that exception were not met. See id. at 1349. As such, we grant the minor's petition for writ of certiorari and quash the order of the trial court.

Petition granted; order quashed .

Ciklin, J., concurs.

Kuntz, J., concurs in result only with opinion.

I agree with the Court that the circuit court's order must be quashed, but I would do so on different grounds. The majority concludes that compelling the minor to reveal the passcode to his iPhone and the password to an unidentified iTunes account would require the minor to use the contents of his mind in violation of the Fifth Amendment. I agree with that conclusion. But the majority also holds that the State may overcome this violation of the minor's Fifth Amendment rights if the foregone conclusion exception applies. Op. 1062 (citing Fisher v. United States , 425 U.S. 391, 411, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) ; In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 , 670 F.3d 1335, 1345-46 (11th Cir. 2012) ).

"[A] person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the [Fifth Amendment] privilege." United States v. Hubbell , 530 U.S. 27, 35-36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). But that same person cannot be compelled to offer oral incriminating testimony. See, e.g. , United States v. Spencer , 17-CR-00259-CRB-1, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26, 2018) (footnote omitted) ("[T]he government could not compel Spencer to state the password itself, whether orally or in writing."); Virginia v. Baust , No. CR14-1439, 2014 WL 10355635, at *4 (Va. Cir. Ct. Oct. 28, 2014) ("[T]he Defendant cannot be compelled to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same."); United States v. Kirschner , 823 F.Supp.2d 665, 669 (E.D. Mich. 2010) ("[T]he government is not seeking documents or objects-it is seeking testimony from the Defendant, requiring him to divulge through his mental processes his password-that will be used to incriminate him.").

The foregone conclusion exception is a judicially created exception. See Hubbell , 530 U.S. at 44, 120 S.Ct. 2037 ; Fisher , 425 U.S. at 411, 96 S.Ct. 1569. It is not found within the Fifth Amendment. It is also a doctrine of limited application. See Hubbell , 530 U.S. at 44, 120 S.Ct. 2037 ("Whatever the scope of this 'foregone conclusion' rationale, the facts of this case plainly fall outside of it."). The Supreme Court has applied the foregone conclusion exception only when the compelled testimony has consisted of existing evidence such as documents.

But, here, the State sought to compel the oral production of the requested information. The foregone conclusion exception has not been applied to oral testimony, and for good reason. In Fisher , the court explained that compelling a taxpayer to produce documents "involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought." 425 U.S. at 409, 96 S.Ct. 1569. Based on what the production in Fisher would not do, the Supreme Court allowed the government to compel the production of documents. Id. Requiring the accused to orally communicate to the government information maintained only in his mind would certainly compel oral testimony. So, in my view, the basis for granting the petition is not that the State failed to satisfy the requirements of the foregone conclusion exception. Rather, the petition should be granted because the foregone conclusion exception is inapplicable to the compelled oral testimony sought in this case.

In response, the majority states that "it would seem unreasonable not to subject documents protected by a passcode to the foregone conclusion exception where the state compels the subject to orally recite a passcode, but allow the foregone conclusion exception to apply ... where the state compels the subject ... to physically write down a password ...." Op. 1064. I agree it would be unreasonable to treat the two situations differently, as "the protection of the privilege reaches an accused's communications, whatever form they might take." Schmerber v. California , 384 U.S. 757, 763-64, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ; see also Spencer , 2018 WL 1964588, at *2. I would therefore treat both situations identically and conclude the foregone conclusion exception is inapplicable to both.

Finally, because I would conclude that the foregone conclusion doctrine cannot apply to compelled oral testimony, I would go no further. We need not address whether the forced decryption of a device would also violate the Fifth Amendment. See Op. 1062 n.1. That question should be left for another case, one where the State has sought the forced decryption of a device as a remedy.

      That this case involves the production of a passcode and password rather than decryption is of no consequence. With iPhones and many other smartphones, inputting a passcode chosen by the user is simply an abbreviated means of decrypting the phone's contents, which are automatically encrypted by the phone whenever it is locked:
      An encryption key is basically a very long string of numbers that is stored in the encryption software's memory. The software users do not have to remember this long number; instead [they] can enter a more easily remembered password or passphrase, which in turn activates the encryption key. When the government seeks to compel an ordinary citizen to turn over the means by which he can decrypt the data, the disclosure order will typically compel him to turn over his password rather than the encryption key.
      Seo , 109 N.E.3d at 423, 2018 WL 4040295 at *4 (quoting Michael Wachtel, Give Me Your Password Because Congress Can Say So , 14 U. Pitt. J. Tech. L. & Pol'y 44, 48 (2013) ). In other words, the particular type of technology used to protect the information sought is not dispositive of whether the Fifth Amendment applies. Decryption and passcode production are thus governed by the same Fifth Amendment analysis.

      The trial court was obligated to follow Stahl below. See Pardo v. State , 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").


text:
    Carlos CADAVID, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1224
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Carlos Cadavid ("the defendant") appeals from his conviction for first degree murder with a firearm. He argues that the trial court erred in prohibiting him from speaking to his attorney during a ten-minute recess between his direct and cross-examinations. The State concedes this error, but argues it was harmless under the circumstances. We agree with the State and affirm.

Background

The State indicted the defendant for the February 14, 2014 first degree murder of Krizia Nunez with a firearm.

The evidence at trial revealed the following. Around 3:30 a.m. on the morning in question, the defendant called 911 from the motel room where he and the victim were staying. He told the operator that his girlfriend had just shot herself with his gun. The defendant also told responding officers and the detective at the scene that the victim had shot herself. In the motel room, police found the victim lying on the floor and the defendant's firearm a few feet from her body. Police also found an unfired round in a shoe near the victim's feet, a spent shell casing on the nightstand under a pizza box, and two boxes of ammunition in a backpack next to the bed. Another cartridge was found in the victim's car. Crime lab analysis of these items, and the fragment recovered from the victim's body, revealed that they all matched to the defendant's firearm.

Over the defendant's objection, his videotaped police interview was played for the jury. At first during the interview, he maintained his story that the victim shot herself. He said that he and the victim had "popped Molly" and were supposed to go to Fort Lauderdale for his friend's birthday, but the victim started "acting up" and did not want to go out. They argued, and when the defendant told the victim he was done with her and leaving, the victim grabbed his gun off the bed and shot herself. Later in the interview, when confronted with physical evidence contradicting his story, the defendant admitted he shot and killed the victim. He claimed that voices coming from the TV were commanding him to kill the victim or she would kill him, so he pulled his gun from his holster and shot the victim. He explained to the detectives: "especially when you're on drugs like Molly ... you start hallucinating." When asked about the unfired round found on the floor, the defendant explained that when he cocked the gun it was loaded so the cartridge fell on the floor. He then shot the victim.

The defendant told detectives he lied about the victim shooting herself at first because he feared prison. To support his story that the victim shot herself, he moved her body a bit and rubbed the gun on her hand. He thought about disposing of the body, but he could not find the victim's car keys. About a half hour after he shot the victim, he decided to call 911.

After the police interview was played for the jury, the defendant testified on his own behalf and gave a third version of the events that led to the victim's death. He admitted shooting the victim but, for the first time, claimed it was an accident. The two had known each other only a few days after meeting at a club. The night before the incident, they checked into a motel, and both "ingested" methamphetamine while driving to meet the defendant's friend at a lounge in Fort Lauderdale. Before they got to the lounge, the victim's demeanor changed and she insisted they return to the motel. The defendant had no choice because they were in the victim's car and she was driving. When they got back to the motel, the defendant smoked a joint. He was upset because he had wanted to stay out. He called his friend, who agreed to pick him up, but the defendant told the friend he would call him back. The victim did not want the defendant to leave and continued to act erratically. The defendant put his bag on the bed and started packing his things. His gun was on the end of the bed. The defendant said he had purchased the gun "for protection" a few weeks earlier. Two years before this incident, he had been shot in the right leg, and now has a prosthetic limb.

The defendant next testified that, at this point, the victim grabbed the defendant and asked him to stay. He pushed her away. She came at him again and he pushed her a little harder. The victim then "snapped," tried to slap the defendant and reached for his gun. He grabbed the gun from her hand. The victim then got on her knees and grabbed the defendant's leg. According to the defendant, as he took a step back, he "put pressure on [his] toe on [his] prosthetic it immediately fold[ed] so [he] went directly down and she was down there with [him]." The defendant said, "we both hit the ground but, you know what I'm saying, I think, I'm not sure if I hit the refrigerator or what but when I tried to catch myself I accidentally squeezed the trigger and the gun went off." The victim was lying face down and not moving, so the defendant shook her and tried to wake her up. Eventually, he called 911. The defendant lied to the 911 operator and responding officers about the victim shooting herself because he was scared and did not think the police would believe him if he told the truth.

At one point on direct, the defendant uttered, without prompting by his counsel: "I have never been in trouble before." The trial court immediately held a sidebar. The State argued the defendant had just opened the door to his prior arrests. The trial court told defense counsel "to clean it up because he just lied," otherwise the State could question him about the prior arrests. Defense counsel said he would "come back to it," but never did.

Regarding his second story to detectives, that voices from the TV told him to kill the victim, the defendant said he just made that up because "[t]hey had me in there for so long that I was just like I'm going to give them what they want and just, I felt like I was blaming myself and I was like I was going to take it." His "mind was fried"; he was "[f]reestyling."

After the defendant's direct testimony, the court excused the jury for a 10-minute break, during which the following discussion took place:

[DEFENSE COUNSEL]: ... When we come back ... Judge, I want to discuss that whole opening the door issue ....
THE COURT: All right. Sir, don't talk to anyone at all, okay.
THE DEFENDANT: Yes, Sir.
THE COURT: If you need to go to the bathroom we'll take you to the bathroom. You may be seated. Have a seat. If you want to go to the bathroom that's fine. Don't talk to anybody.
[DEFENSE COUNSEL]: Judge, in that respect would that not include his counsel thought [sic], I think -
THE COURT: Not right now, no.
[DEFENSE COUNSEL]: Specifically -
THE COURT: Counsel, let me tell you something, ... I took a break, I'm going to take a break, Cross-Examination is going to happen, basically you said that's enough and that's going to happen. I appreciate it.
[DEFENSE COUNSEL]: But specifically -
THE COURT: All right, 10 minutes. We're off the record.

After the short recess, the discussion resumed:

[DEFENSE COUNSEL]: Judge, I want the record to be clear that I obeyed the Court's admonition not to speak to my client during this break.... And I would again object and ask the Court to allow me to speak to my client in the middle of his -- even though he is on the stand and it's in the middle he is about to do Cross-Examination I would like to consult with him privately at this time.
THE COURT: Well, that's up to the State....
[STATE]: No.... I'm not stipulating to that.
THE COURT: I appreciate it. Thank you.

On cross-examination, the State never mentioned the prior arrests. The defendant did not dispute that his first two stories to police were lies, and agreed with the State on almost every question, generally confining his response to "Correct." He also agreed the detectives never threatened him or attempted to coerce him into making statements.

After cross-examination, the defendant unsuccessfully moved for a mistrial. Citing this court's opinion in Mears v. State , 183 So.3d 1230 (Fla. 4th DCA 2016), the defense argued "it's fundamental error for a client not to be able to consult with his lawyer even when he is on the stand, even if he is in the middle of cross-examination." The State noted that it never went into the arrests issue, and the trial court agreed, stating: "The reason why you wanted to talk to your client was moot because he didn't do anything, he did not go into that issue."

The jury found the defendant guilty as charged and that he actually possessed and discharged a firearm resulting in death. The defendant moved for a new trial, arguing in part that the court erred by not granting a mistrial when it prohibited defense counsel from conferring with the defendant during the recess between direct and cross-examination. The court denied the motion and sentenced the defendant to life in prison with a twenty-five-year mandatory minimum sentence. This appeal followed.

Analysis

The defendant argues the trial court reversibly erred in denying him an opportunity to consult with his counsel during the brief recess in-between the defendant's direct testimony and cross-examination. The State concedes error, but argues it was harmless in the context of the case. We agree with the State.

We reiterated in Mears that "a defendant has the right to consult with his attorney during a recess even if he is on the stand," and that:

"[N]o matter how brief the recess, a defendant in a criminal proceeding must have access to his attorney. The right of a criminal defendant to have reasonably effective attorney representation is absolute and is required at every essential step of the proceedings. Although we understand the desirability of the imposed restriction on a witness or party who is on the witness stand, we find that to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel ."

183 So.3d at 1232 (quoting Burgess v. State , 117 So.3d 889, 892-93 (Fla. 4th DCA 2013) ). Indeed, "Florida law affords greater protection of a defendant's right to counsel than federal authority requires." Id. (quoting Leerdam v. State , 891 So.2d 1046, 1049 (Fla. 2d DCA 2004) ).

Because the State concedes error, the only issue on appeal with respect to this issue is whether the error was harmless. See Bova v. State , 410 So.2d 1343, 1345 (Fla. 1982) ("[W]e disapprove the decision of the district court as to the attorney-client consultation issue, but, because we find the error harmless, approve the result."). "The error of denying access to counsel during a recess called immediately prior to cross-examination of the defendant has been found not to be harmless when the defendant's performance on cross-examination could have affected the verdict." Leerdam , 891 So.2d at 1051 (citing Thompson v. State , 507 So.2d 1074, 1075 (Fla. 1987) ).

In this case, the defendant's performance on cross-examination could not have affected the verdict. While his credibility was at issue, on direct he opened the door to the fact that he had lied to police a second time about how the victim was shot. On cross, which was relatively brief (only 22 of 892 pages of transcript), his testimony was cumulative to his testimony on direct. The defendant did not dispute his lies, and agreed with the State on almost every question. While he disputed his level of sobriety during the police interview, he had already impeached himself on direct by stating that methamphetamine does not make him hallucinate, disoriented, or crazy, but "just levels [him] out" when his leg is bothering him. Moreover, the videotape of the interview-which depicts an alert, calm, coherent, and cooperative defendant-speaks for itself.

The defendant likens his case to Thompson , in which the Florida Supreme Court granted a new trial because "the [trial] court precluded the defendant from consulting with his counsel during recess."

507 So.2d at 1074. Thompson , however, is distinguishable. In Thompson , the State "was granted a thirty-minute recess for the sole purpose of researching ways to impeach [Thompson] regarding a subsequent arrest which his lawyer had apparently advised him would be inadmissible. Thus, Thompson was denied the guidance and support of his attorney when he needed it most (i.e., when the State was preparing for a major attack on his credibility)." Id. at 1075. The Court held that "Thompson's credibility was a crucial issue in his trial," and denial of consultation with counsel left Thompson "nervous [and] confused." Id.

Here, unlike in Thompson , the record does not reflect that the defendant was nervous or confused on the stand. Moreover, the apparent primary reason for defense counsel's request to consult with his client-the defendant's direct testimony that he had never been in trouble before, when in fact he had a prior arrest record-became moot, as the State never raised the matter on cross.

Burgess is similarly distinguishable, where "[t]he reason for the state's request for the recess was to determine whether it should ask for a mistrial due to a statement which the defendant made during his testimony," and "[p]rohibiting the defendant from speaking with his counsel during the recess deprived the defendant of counsel's advice as to whether to continue or abandon that line of testimony." 117 So.3d at 893. Such circumstances did not exist here.

Conclusion

There is no reasonable possibility that the trial court's refusal to allow the defendant to speak to his counsel during the short break impacted the jury's verdict in this case. See State v. DiGuilio , 491 So.2d 1129, 1138-39 (Fla. 1986). Accordingly, we hold that the error was harmless, and we affirm the judgment of conviction.

Affirmed.

Warner and May, JJ., concur.

      We also affirm with respect to the defendant's second argument, without comment.

      The victim's toxicology report contained "unconfirmed positive" results for amphetamines or methamphetamine.