author: QUINCE, J. PARIENTE, J., concurring. LABARGA, J., concurring. CANADY, C.J., dissenting.

text:
    Richard DELISLE, Petitioner, v. CRANE CO., et al., Respondents.
    No. SC16-2182
    Supreme Court of Florida.
    October 15, 2018
    James L. Ferraro, David A. Jagolinzer, and Paulo R. Lima of The Ferraro Law Firm, P.A., Miami, Florida, for Petitioner
    Elliot H. Scherker, Julissa Rodriguez, Brigid F. Cech Samole, Sabrina F. Gallo, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, Florida, for Respondent R.J. Reynolds Tobacco Company, as successor-by merger to Lorillard Tobacco Company, and Hollingsworth & Vose Company
    Paul F. Hancock and William J. Simonitsch of K & L Gates, LLP, Miami, Florida; and Richard E. Doran of Ausley McMullen, Tallahassee, Florida, for Respondent Crane Co.
    Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and Howard C. Coker of Coker, Schickel, Sorenson, Posgay, Camerlongo & Iracki, Jacksonville, Florida, for Amicus Curiae Counsel for Florida Justice Association
    Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, Florida, for Amicus Curiae Florida Defense Lawyers Association
    Wesley A. Bowden of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, Florida, for Amicus Curiae Concerned Physicians, Scientists and Scholars Regarding Causation of Asbestos-Related Disease
    Cory L. Andrews of Washington Legal Foundation, Washington, District of Columbia, for Amicus Curiae Washington Legal Foundation
    Martin S. Kaufman of Atlantic Legal Foundation, Harrison, New York; and Joseph H. Varner, III of Holland & Knight, LLP, Tampa, Florida, for Amici Curiae John Henderson Duffus, Ph.D., Ronald E. Gots, M.D., Dr. A. Alan Moghissi, Professor Robert Nolan, Gordon L. Nord, Ph.D., and Professor Emanuel Rubin
    Andy Bardos and George N. Meros, Jr., of GrayRobinson, P.A., Tallahassee, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, for Amicus Curiae Florida Justice Reform Institute
    William N. Shepherd, Jason D. Lazarus, and Tiffany Roddenberry of Holland & Knight, LLP, West Palm Beach, Florida; and H. Eugene Lindsey III, Miami, Florida, for Amicus Curiae The National Association of Criminal Defense Lawyers
    Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and Jordan E. Pratt, Deputy Solicitor General, Tallahassee, Florida, for Amicus Curiae State of Florida
   QUINCE, J.

Richard DeLisle seeks review of the decision of the Fourth District Court of Appeal in Crane Co. v. DeLisle , 206 So.3d 94 (Fla. 4th DCA 2016), on the ground that it expressly and directly conflicts with a decision of this Court on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The facts of this case were described in the Fourth District's opinion as follows:

After developing mesothelioma, DeLisle filed a personal injury action against sixteen defendants, claiming that each caused him to be exposed to asbestos. He alleged negligence and strict liability under failure-to-warn and design-defect theories. Of these defendants, DeLisle proceeded to trial only against Crane, Lorillard Tobacco Co., and Hollingsworth & Vose Co. ("H & V").
At trial, DeLisle presented evidence that he was exposed to asbestos fibers from sheet gaskets while working at Brightwater Paper Co. between 1962 and 1966. Crane, a valve and pump manufacturer, used "Cranite" sheet gaskets containing chrysotile asbestos fibers. DeLisle also testified that he smoked Original Kent cigarettes with asbestos-containing "Micronite" filters from 1952 to 1956. These cigarettes were produced by Lorillard's predecessor, and the filters were supplied by a former subsidiary of H & V. The filters contained crocidolite asbestos. In addition to Cranite gaskets and Kent cigarettes, DeLisle testified that he was exposed to asbestos-containing products from the following nonparty defendants: Garlock Sealing Technologies, LLC; A.W. Chesterton Co.; Ford Motor Co.; Honeywell International, Inc., f/k/a Allied Signal, as successor in interest to Allied Corp., as successor in interest to The Bendix Corp.; Georgia-Pacific LLC, f/k/a Georgia-Pacific Corp.; Goulds Pumps, Inc.; Union Carbide Corp.; Brightwater; and Owens-Corning Fiberglass.
Lorillard contested DeLisle's use of Kent cigarettes. DeLisle testified that he smoked on average a pack of Kent cigarettes a day from junior high school until he enlisted in the army in 1957. Two of his high school friends, however, did not recall him smoking, and his former wife testified that by the late 1960's, DeLisle was only smoking unfiltered cigarettes.
The parties hotly disputed causation, and even DeLisle's own experts did not agree on which products produced sufficient exposure to asbestos to constitute a substantial contributing factor to DeLisle's disease. Although all of DeLisle's experts agreed that the crocidolite asbestos in the Kent filters was a causative factor, they disagreed as to whether the other products were substantial contributing factors.
Appellees challenged each expert's opinions under section 90.702, Florida Statutes, which adopted the Daubert test for expert testimony. DeLisle introduced the causation expert opinions of Drs. James Dahlgren, James Millette, James Crapo, and James Rasmuson. Lorillard and H & V unsuccessfully moved to exclude their testimony, as well as any testimony regarding experiments conducted by Dr. William Longo. Dr. Dahlgren is a toxicologist who testified as to causation. Dr. Millette is an environmental scientist who tested asbestos-containing products for fiber release. Dr. Crapo, a pulmonologist, reviewed studies by both Dr. Longo and Dr. Millette to determine that Kent cigarettes would be a substantial contributing factor to mesothelioma. Dr. Rasmuson, an industrial hygienist, relied on Dr. Longo's testing to opine on DeLisle's exposure. Following Daubert hearings, the trial court admitted each expert's testimony.
Before the jury, Dr. Dahlgren opined that "every exposure" above background levels to friable, inhaled asbestos-regardless of product, fiber type, and dose-would be considered a substantial contributing factor to DeLisle's mesothelioma. In contrast, Dr. Rasmuson testified that low-level exposures to chrysotile asbestos would not increase the risk of mesothelioma. Dr. Crapo testified similarly to Dr. Rasmuson as to low-level chrysotile asbestos.
Crane, Lorillard, H & V, and DeLisle all moved for directed verdicts, and DeLisle sought to exclude any Fabre defendants from the verdict form. The court denied the motions for directed verdict and determined that Brightwater, DeLisle's former employer, and Owens-Corning, which manufactured asbestos-containing products that DeLisle had worked with at Brightwater, should be included on the verdict form. The court excluded the remaining nonparty defendants as Fabre defendants.
During the jury charge conference, Lorillard and H & V asked the trial court to instruct the jury on the threshold issue of whether DeLisle ever smoked Kent cigarettes. DeLisle opposed the instruction. The court denied the proposed instruction, reasoning that the issue was "subsumed in the [standard] instruction."
Following three days of deliberation, the jury awarded DeLisle $8 million in damages and apportioned fault as follows:
• Crane: 16%
• Lorillard: 22%
• H & V: 22%
• Brightwater: 20%
• Owens-Corning: 20%
After trial, Crane, Lorillard, and H & V variously moved for a judgment notwithstanding the verdict, judgment in accordance with their motions for directed verdict, a new trial, or, in the alternative, for a remittitur. The trial court denied the motions. The court then entered a final judgment awarding DeLisle $8 million in past and future non-economic compensatory damages, apportioned to Crane, Lorillard, and H & V based on the jury's distribution of fault.

Crane Co. v. DeLisle , 206 So.3d 94, 98-100 (Fla. 4th DCA 2016) (footnotes omitted). Crane appealed the trial court's denial of its motions for directed verdict and judgment notwithstanding the verdict and the trial court's admission of expert causation testimony among other issues. Id. at 100. R.J. Reynolds also appealed the admission of expert testimony and both parties appealed the award as excessive. Id.

The Fourth District reviewed the admission of the testimony of the experts under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and found that the trial court "failed to properly exercise its gatekeeping function as to Drs. Dahlgren, Crapo, and Rasmuson." Id. The Fourth District reversed for a new trial for R. J. Reynolds and reversed and remanded for entry of a directed verdict for Crane. Id. at 111-12. DeLisle sought review by this Court, which was granted.

The Florida Legislature and the Florida Supreme Court have worked in tandem for nearly forty years to enact and maintain codified rules of evidence. This arrangement between the branches to avoid constitutional questions of separation of powers continued uninterrupted from the Evidence Code's inception until 2000. In the instant case, we are asked to determine whether chapter 2013-107, section 1, Laws of Florida, which revised section 90.702, Florida Statutes (2015), and which we previously declined to adopt, to the extent it was procedural, infringes on this Court's rulemaking authority. We find that it does. Therefore, we reverse the Fourth District and remand for reinstatement of the final judgment.

The Florida Legislature enacted the first codified rules of evidence in 1976. Ch. 76-237, at 556, Laws of Florida. In 1979, we adopted the Florida Evidence Code, to the extent that the code was procedural. See In re Fla. Evidence Code , 372 So.2d 1369 (Fla.), clarified , In re Fla. Evidence Code , 376 So.2d 1161 (Fla. 1979). We recognized that "[r]ules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court." Id. at 1369. We therefore chose to adopt the rules, "[t]o avoid multiple appeals and confusion in the operation of the courts caused by assertions that portions of the evidence code are procedural and, therefore, unconstitutional because they had not been adopted by this Court under its rule-making authority." Id. Since then, we have traditionally continued to adopt the code, to the extent it is procedural, to avoid the issue of whether the Evidence Code is substantive in nature and therefore within the province of the Legislature or procedural in nature and therefore within the province of this Court. See, e.g. , In re Amends. to the Fla. Evidence Code , 53 So.3d 1019 (Fla. 2011) ; In re Amends. to the Fla. Evidence Code , 960 So.2d 762 (Fla. 2007) ; In re Amends. to the Fla. Evidence Code-Section 90.104 , 914 So.2d 940 (Fla. 2005) ; Amends. to the Fla. Evidence Code , 891 So.2d 1037 (Fla. 2004) ; In re Amends. to Fla. Evidence Code , 825 So.2d 339 (Fla. 2002) ; In re Fla. Evidence Code , 675 So.2d 584 (Fla. 1996) ; In re Fla. Evidence Code , 638 So.2d 920 (Fla. 1993) ; In re Amend. of Fla. Evidence Code , 497 So.2d 239 (Fla. 1986) ; In re Amend. of Fla. Evidence Code , 404 So.2d 743 (Fla. 1981).

Until 2000, the working arrangement between the Legislature and the Florida Supreme Court remained intact. However, in In re Amendments to the Florida Evidence Code , 782 So.2d 339 (Fla. 2000), this Court for the first time declined to adopt, to the extent they were procedural, amendments to section 90.803, Florida Statutes (1997). Id. (declining to adopt chapter 98-2, section 1, Laws of Florida, amending section 90.803(22), Florida Statutes, which allows the admission of former testimony although the declarant is available as a witness, in part because of concerns about its constitutionality). We then considered the constitutionality of the provision in State v. Abreu , 837 So.2d 400 (Fla. 2003), determining that the revised statute was unconstitutional because it infringed on a defendant's right to confront witnesses. Id. at 406.

Since then, we have only rarely declined to adopt a statutory revision to the Evidence Code. See, e.g., In re Amends. to the Fla. Evidence Code , 210 So.3d 1231 (Fla. 2017) (declining to adopt chapter 2013-107, sections 1-2, Laws of Florida); In re Amends. to the Fla. Evidence Code , 144 So.3d 536 (Fla. 2014) (declining to adopt chapter 2011-183, section 1, Laws of Florida, creating section 90.5021, Florida Statutes (2012), which establishes a "fiduciary lawyer-client privilege," and declining to adopt chapter 2011-233, section 10, Laws of Florida, creating section 766.102(12), Florida Statutes (2012), which pertains to a medical malpractice expert witness provision). Since its inception, therefore, the Florida Evidence Code has been considered neither purely substantive nor purely procedural. See In re Fla. Evidence Code , 372 So.2d 1369, 1369 (Fla.), clarified, 376 So.2d 1161 (Fla. 1979) ("Rules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court.").

Generally, the Legislature has the power to enact substantive law while this Court has the power to enact procedural law. See Allen v. Butterworth , 756 So.2d 52, 59 (Fla. 2000). Substantive law has been described as that which defines, creates, or regulates rights-"those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property, and reputation." In re Fla. Rules of Criminal Procedure , 272 So.2d 65, 65 (Fla. 1972) (Adkins, J., concurring). Procedural law, on the other hand, is the form, manner, or means by which substantive law is implemented.

Id. at 66 (Adkins, J., concurring). Stated differently, procedural law "includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution." Allen v. Butterworth , 756 So.2d 52, 60 (Fla. 2000) (quoting In re Rules of Criminal Procedure , 272 So.2d at 66 (Adkins, J., concurring) ). "It is the method of conducting litigation involving rights and corresponding defenses." Haven Federal Savings & Loan Ass'n v. Kirian , 579 So.2d 730, 732 (Fla. 1991) (citing Skinner v. City of Eustis , 147 Fla. 22, 2 So.2d 116 (1941) ).

The distinction between substantive and procedural law, however, is not always clear. For example, a law is considered to be substantive when it both creates and conditions a right. See State v. Raymond , 906 So.2d 1045, 1049 (Fla. 2005) ; Jackson v. Fla. Dep't of Corr. , 790 So.2d 381, 383-84 (Fla. 2000) (holding that the Legislature could properly limit the right of indigents to proceed without payment of costs); Caple v. Tuttle's Design-Build, Inc. , 753 So.2d 49, 54 (Fla. 2000) (holding that a statute creating the right to petition for mortgage payment receipts during foreclosure proceedings and establishing the grounds for granting such a petition was constitutional); School Bd. of Broward Cty. v. Price , 362 So.2d 1337 (Fla. 1978) (holding that section 230.23(9)(d)(2), Florida Statutes (1977), set the bounds of a substantive right conditioned on a waiver and was therefore not an unconstitutional infringement of the Court's power to set procedural rules). However, when procedural aspects overwhelm substantive ones, the law may no longer be considered substantive. Raymond , 906 So.2d at 1049.

Here, the Legislature sought to adopt Daubert and cease the application of Frye to expert testimony. In Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), a short opinion, the Court of Appeals for the District of Columbia pronounced that the line between when a scientific discovery or principle crosses from experimental to demonstrable is indiscernible so that courts would do better "admitting expert testimony deduced from a well-recognized scientific principle or discovery." Id. at 1014. Further, the Court explained, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. This rule-that expert testimony should be deduced from generally accepted scientific principles-has been the standard in Florida cases and, today, we reaffirm that it is still the standard. See, e.g., Kaminski v. State , 63 So.2d 339, 340 (Fla. 1952) (recognizing Frye 's rejection of systolic blood pressure deception tests as having "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.") (quoting Frye , 293 F. at 1014 ); Bundy v. State , 471 So.2d 9, 13 (Fla. 1985) (describing the Frye test as one in which "the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate").

Considering the admissibility of posthypnotic testimony, we formally adopted Frye , determining:

[T]he test espoused in Frye properly addresses the issue of the admissibility of posthypnotic testimony. We acknowledge that the Frye rule has come under some criticism since its inception in 1923 as too harsh and inflexible; however, we believe that the problems associated with the other recognized judicial approaches foreclose their use.

Stokes v. State , 548 So.2d 188, 195 (Fla. 1989) (citation omitted) (citing Bundy v. State , 471 So.2d 9 (Fla. 1985) ; Bundy v. State , 455 So.2d 330 (Fla. 1984) ). Further, we noted:

[A] courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.

Stokes , 548 So.2d at 193-94. We note that we adopted the Frye test irrespective of the Evidence Code, which was in place at the time.

In Hadden v. State , 690 So.2d 573 (Fla. 1997), we rejected the argument that the Legislature's enactment and this Court's subsequent adoption of the Evidence Code replaced the Frye standard with the balancing test that existed in the code. Hadden , 690 So.2d at 577 (citing Daubert , 509 U.S. 579, 113 S.Ct. 2786 ; Stokes , 548 So.2d 188 ). We stated:

The reasons for our adherence to the Frye test announced in Stokes continue today. Moreover, we firmly hold to the principle that it is the function of the court to not permit cases to be resolved on the basis of evidence for which a predicate of reliability has not been established. Reliability is fundamental to issues involved in the admissibility of evidence. It is this fundamental concept which similarly forms the rules dealing with the admissibility of hearsay evidence. As a rule, hearsay evidence is considered not sufficiently reliable to be admissible, and its admission is predicated on a showing of reliability by reason of something other than the hearsay itself. See § 90.802, Fla. Stat. (1995) ("Except as provided by statute, hearsay evidence is inadmissible."). This same premise underlies why novel scientific evidence is to be Frye tested. Novel scientific evidence must also be shown to be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer the opinion. In sum, we will not permit factual issues to be resolved on the basis of opinions which have yet to achieve general acceptance in the relevant scientific community; to do otherwise would permit resolutions based upon evidence which has not been demonstrated to be sufficiently reliable and would thereby cast doubt on the reliability of the factual resolutions.

Hadden , 690 So.2d at 578.

After decades of the federal courts' applying Frye , Congress revised the Federal Rules of Evidence. The revision was addressed by the United States Supreme Court in 1993. In Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court determined the appropriate standard for admitting expert scientific testimony in a federal trial. Id. at 582, 113 S.Ct. 2786. The Supreme Court ultimately agreed with the petitioners that Frye had been superseded by the adoption of the revised Federal Rules of Evidence. Id. at 587, 113 S.Ct. 2786.

The Court explained its decision, stating, "[I]n order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method." Daubert , 509 U.S. at 590, 113 S.Ct. 2786. The inquiry derived from Daubert is a flexible one, as emphasized by the Supreme Court. Id. at 594, 113 S.Ct. 2786. "The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786. The Supreme Court in Daubert opined that the change in rule 702 was necessary to permit scientifically valid and relevant evidence, summarizing:

"General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence-especially Rule 702-do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

Id. at 597, 113 S.Ct. 2786. In short, in Daubert , the United States Supreme Court found that otherwise probative and scientifically valid evidence was being excluded under the Frye standard and the change in rule 702 was necessary to permit additional relevant evidence to be considered even if it was based on scientific methods or principles that were not yet generally accepted.

Nevertheless, in Brim v. State , 695 So.2d 268 (Fla. 1997), we unanimously emphasized that we continue to apply Frye to "guarantee the reliability of new or novel scientific evidence." Id. at 271 (citing Stokes v. State , 548 So.2d 188 (Fla. 1989) ). We opined:

Despite the federal adoption of a more lenient standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), we have maintained the higher standard of reliability as dictated by Frye . E.g., Ramirez v. State , 651 So.2d 1164 (Fla. 1995). This standard requires a determination, by the judge, that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community. To that end, we have expressly held that the trial judge must treat new or novel scientific evidence as a matter of admissibility (for the judge) rather than a matter of weight (for the jury).

Brim , 695 So.2d at 271-72 (footnote omitted).

Following our repeated affirmations of the Frye rule, in 2013 the Legislature amended section 90.702 to incorporate Daubert in the Florida Rules of Evidence. The amendment revised the statute to read as follows:

90.702 Testimony by experts.-If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

§ 90.702, Fla. Stat. (as amended by ch. 2013-107, § 1, Laws of Fla.).

Article II, section 3 of the Florida Constitution prohibits one branch of government from exercising any of the powers of the other branches. Further, article V, section 2(a) provides this Court the exclusive authority to "adopt rules for the practice and procedure in all courts." Art. V, § 2(a), Fla. Const. The Legislature may only repeal the rules of this Court by "general law enacted by two-thirds vote of the membership of each house of the legislature." Id. First, the amendment was not written to repeal Frye or Marsh but to overrule this Court's decision. See Fla. HB 7015, preamble (2013) (available at www.flsenate.gov/Session/Bill/2013/7015) ("the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh ...". The vote here did not meet the requirement. The House passed the bill with a majority, 70 to 41 (or 58.3% of the membership). The Senate passed the bill with more than the necessary two-thirds vote, 30 to 9 (or 75% of the membership). Id.

We have previously found that the Legislature exceeded its authority in adopting statutes we found to infringe on the authority of this Court to determine matters of practice or procedure. For example, in Massey v. David , 979 So.2d 931 (Fla. 2008), we considered the constitutionality of section 57.071(2), Florida Statutes (1999), finding that the section was purely procedural because the substantive right it purported to create existed in a different section of the statutes. Id. at 935-36. We determined that "because section 57.071(2) only delineates the steps that a party must fulfill (i.e., the proverbial hoops through which a party must jump) to be entitled to an award of expert witness fees as costs, the statute is unquestionably a procedural one which conveys no substantive right at all." Id. at 940 (citing Raymond , 906 So.2d at 1049 ). Likewise, we found the time requirements established by the Legislature in section 44.102, Florida Statutes (1993), to be unconstitutional, finding that the section "sets forth only procedural requirements, [and therefore] intrudes upon the rule-making authority of the Supreme Court." Knealing v. Puleo , 675 So.2d 593, 596 (Fla. 1996) (citing art. V, § 2(a), Fla. Const.).

In Jackson v. Florida Department of Corrections , 790 So.2d 381 (Fla. 2000), we explained that a statute can have both substantive provisions and procedural requirements and "[i]f the procedural requirements conflict with or interfere with the procedural mechanisms of the court system, they are unconstitutional under both a separation of powers analysis, and because [they intrude upon] the exclusive province of the Supreme Court pursuant to the rulemaking authority vested in it by the Florida Constitution." Id. at 384 (citing art. II, § 3, art. V, § 2, Fla. Const.; State v. Garcia , 229 So.2d 236, 238 (Fla. 1969) ). We noted that the copy requirement contained in the rule provided an extra and unnecessary burden on the operation of this Court. Id. at 386.

In State v. Raymond , 906 So.2d 1045 (Fla. 2005), we determined that section 907.041(4)(b), Florida Statutes (2000), providing that a person charged with a dangerous crime was prohibited from receiving a nonmonetary pretrial release, was purely procedural and, therefore, an unconstitutional violation of the separation of powers clause. "It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm." Id. at 1048 (citing Markert v. Johnston , 367 So.2d 1003 (Fla. 1978) ). Further, "where there is no substantive right conveyed by the statute, the procedural aspects are not incidental; accordingly, such a statute is unconstitutional." Id. at 1049 (citing Knealing , 675 So.2d 593 ).

Further, we determined that the Legislature's attempt to "specif[y] the precise moment during the judicial proceeding when a motor vehicle liability insurer may be formally recognized as the real party in interest" in section 627.7262, Florida Statutes (1977), was "an invasion of this Court's rulemaking authority." Markert , 367 So.2d at 1005-06. However, in VanBibber v. Hartford Accident & Indemnity Insurance Co. , 439 So.2d 880 (Fla. 1983), we considered the revised version of the same statute, and determined that there were "substantial differences between the two statutes." Id. at 882. Because of those differences, we determined that the Legislature substantively pronounced public policy overturning this Court's pronouncement in Shingleton v. Bussey , 223 So.2d 713 (Fla. 1969), and was therefore constitutional. VanBibber , 439 So.2d at 883.

Section 90.702, Florida Statutes, as amended in 2013, is not substantive. It does not create, define, or regulate a right. Indeed, while we have stated that the Florida Evidence Code contains both substantive and procedural rights, this statute is one that solely regulates the action of litigants in court proceedings. See, e.g. , Glendening v. State , 536 So.2d 212, 215 (Fla. 1988) (determining that section 90.803(23), Florida Statutes (1985), concerning out-of-court statements, was procedural for the purposes of ex post facto analysis).

Our consideration of the constitutionality of the amendment does not end with our determination that the provision was procedural. For this Court to determine that the amendment is unconstitutional, it must also conflict with a rule of this Court. See Haven Fed. Sav. & Loan Ass'n v. Kirian , 579 So.2d 730, 732-33 (Fla. 1991) ("Where this Court promulgates rules relating to the practice and procedure of all courts and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.") (citing Sch. Bd. v. Surette, 281 So.2d 481 (Fla. 1973), receded from on other grounds by Sch. Bd. v. Price, 362 So.2d 1337 (Fla. 1978) ); see also Leapai v. Milton , 595 So.2d 12, 14 (Fla. 1992) (holding that section 45.061, Florida Statutes (1987), was not unconstitutional to the extent it did not conflict with Florida Rule of Civil Procedure 1.442 and stating that "statutes should be construed to effectuate the express legislative intent and all doubt as to the validity of any statute should be resolved in favor of its constitutionality" (quoting McKibben v. Mallory , 293 So.2d 48 (Fla. 1974) ) ). A procedural rule of this Court may be pronounced in caselaw. See Sch. Bd. of Broward Cty. v. Surette , 281 So.2d 481, 483 (Fla. 1973), receded from on other grounds by Sch. Bd. of Broward Cty. v. Price , 362 So.2d 1337 (Fla. 1978) ("Where rules and construing opinions have been promulgated by this Court relating to the practice and procedure of all courts and a statutory provision provides a contrary practice or procedure ... the statute must fall.") While the Legislature purports to have pronounced public policy in overturning Marsh , we hold that the rule announced in Stokes and reaffirmed in Marsh was a procedural rule of this Court that the Legislature could not repeal by simple majority.

We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye , not Daubert , is the appropriate test in Florida courts.

We have previously recognized that Frye is inapplicable to the vast majority of cases because it applies only when experts render an opinion that is based upon new or novel scientific techniques. Marsh , 977 So.2d at 547 (citing U.S. Sugar Corp. v. Henson , 823 So.2d 104, 109 (Fla. 2002). Further, we have stated that "a trial court 'has broad discretion in determining the range of the subjects on which an expert can testify, and the trial judge's ruling will be upheld absent a clear error.' " Davis v. State , 142 So.3d 867, 872 (Fla. 2014) (quoting Penalver v. State , 926 So.2d 1118, 1134 (Fla. 2006) ); see Hadden v. State , 690 So.2d 573, 581 (Fla. 1997) (stating that evidence found to be inadmissible under Frye does not necessarily require reversal because the error may be harmless) (citing Flanagan v. State , 625 So.2d 827, 829-30 (Fla. 1993) ).

The expert testimony in this case was properly admitted and should not have been excluded by the Fourth District. As we stated in Marsh , medical causation testimony is not new or novel and is not subject to Frye analysis. Marsh , 977 So.2d at 549. Further, we have previously recognized that asbestos products "have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others." Celotex Corp. v. Copeland , 471 So.2d 533, 538 (Fla. 1985). Here, the trial court heeded our caution to "resist the temptation to usurp the jury's role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views." Marsh , 977 So.2d at 549 (citing Castillo v. E.I. Du Pont De Nemours & Co., Inc. , 854 So.2d 1264, 1275 (Fla. 2003) ). The Fourth District erred in disturbing the trial court's determination.

Next, R.J. Reynolds and Crane both challenged the trial court's denial of remittitur. We conclude that the Fourth District's application of a dissenting viewpoint is inconsistent with our caselaw and, therefore, reject its reasoning.

For the foregoing reasons, we quash the Fourth District's decision. Furthermore, because the causation of mesothelioma is neither new nor novel, the trial court's acceptance of the expert testimony was proper. We therefore remand to the Fourth District with instructions to remand to the trial court to reinstate the final judgment. We decline to address the remaining issues.

It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.

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

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

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

PARIENTE, J., concurring.

I fully concur with the majority's decision to remand for reinstatement of the final judgment and its conclusion that the 2013 legislative amendments to section 90.702, Florida Statutes ("the Daubert amendment"), infringe on this Court's rulemaking authority. I write separately to express my belief that the Daubert amendment also has the potential to unconstitutionally impair civil litigants' right to access the courts. See art. I, § 21, Fla. Const.

Determining the admissibility of evidence in a civil or criminal case is a quintessentially judicial function. See Johnston v. State , 863 So.2d 271, 278 (Fla. 2003) ("A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion."); Cantore v. W. Boca Med. Ctr., Inc. , 2018 WL 4235334, *3 (Fla. Apr. 26, 2018). This includes the admission of expert opinion testimony.

In deciding whether a particular expert's testimony is admissible, the trial court is guided by the rules of evidence, which require that the expert testimony "assist the trier of fact." § 90.702, Fla. Stat. (2017). Further, as part of its gatekeeping function, the trial court must, if challenged by a party, determine whether the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice." Id. § 90.403. However, once the trial court determines that expert testimony will assist the trier of fact and is not unduly prejudicial, the jury is entitled to hear the expert testimony. Any other approach, in my view, reflects a mistrust of the jury system and the ability of jurors to weigh the evidence.

BACKGROUND

As the majority explains, Frye has been the standard for determining the admissibility of expert testimony in Florida for decades. See majority op. at 1225. Under Frye , "the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand." Ramirez v. State , 651 So.2d 1164, 1168 (Fla. 1995). Significantly, Frye applies only to "new or novel scientific evidence." Brim v. State , 695 So.2d 268, 271 (Fla. 1997).

In 1993, the United States Supreme Court held that the Federal Rules of Evidence superseded the Frye "general acceptance" test for the admission of expert testimony in federal trials. See Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 588-89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under the federal rules, instead of determining whether the basis for an expert's opinion was generally accepted in the relevant scientific community, the Court explained that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786. The Court noted that this new standard was intended to be flexible. See id. at 594, 113 S.Ct. 2786 ("The inquiry envisioned by [the federal rules] is, we emphasize, a flexible one."); see also Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1311 (11th Cir. 1999) ("The gatekeeper role [under Daubert ] is not intended to supplant the adversary system or the role of the jury."); Martin L.C. Feldman, May I Have the Next Dance, Mrs. Frye? , 69 Tul. L. Rev. 793, 802-03 (1995) ("The Court declared that the Frye test was superseded by the Federal Rules of Evidence, and thereby outwardly relaxed the standard for admission of scientific evidence.").

Several years after Daubert , the United States Supreme Court concluded that a trial judge may consider additional factors when determining whether expert testimony meets the Daubert standard, including whether a particular theory or technique had been or could be tested, whether it had been subjected to peer review, and whether a particular technique had a known or potential rate of error. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Consistent with its intention that the Daubert standard be flexible, the Court explicitly emphasized the word "may." Id.

Despite the Supreme Court's intention that Daubert be applied flexibly, it has been observed that, in actuality, "[t]he gatekeeping role bestowed upon the judiciary has blocked more court access than it has enabled." Allan Kanner & M. Ryan Casey, Daubert and the Disappearing Jury Trial , 69 U. Pitt. L. Rev. 281, 283 (2007). Particularly relevant in this case, defendants often exploit the requirements of Daubert as a sword against plaintiffs' attorneys. See id. at 283-84. Others have written that Daubert has "produced a minefield clogged with 'Daubert hearings' that are more lengthy, technical, and diffuse than anything that preceded them." David Crump, The Trouble with Daubert-Kumho: Reconsidering the Supreme Court's Philosophy of Science , 68 Mo. L. Rev. 1, 1 (2003).

Daubert has limited access to courts in two significant ways. First, Daubert applies in substantially more cases than Frye . As stated previously, unlike Frye , which applies only to testimony which is predicated on new or novel scientific evidence, Daubert applies to all expert testimony. Kumho , 526 U.S. at 147, 119 S.Ct. 1167 (stating that Daubert "applies to all expert testimony"). Therefore, more litigants are exposed to the risk of exclusion of their experts' testimony under Daubert .

Second, in addition to expanding the areas of expert testimony that are subject to challenge, the Daubert analysis involves more than just the Frye consideration of whether "the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim , 695 So.2d at 272. Under Daubert , it is the trial judge who must ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." 509 U.S. at 597, 113 S.Ct. 2786. As explained previously, this is a multi-factor consideration. Id. at 593-94, 113 S.Ct. 2786. In other words, as the majority states, " Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges ...." Majority op. at 1229. The difference as to who makes this reliability determination is not inconsequential, as trial judges, who typically do not possess the requisite training or experience in the expert's field, must fully understand the science before they can even attempt to determine whether it is admissible under Daubert .

THE DAUBERT AMENDMENT

In 2013, the Legislature formally adopted the Daubert standard. See ch.

2013-107, Laws of Fla. The Florida Bar's Code and Rules of Evidence Committee ("the Committee") recommended that we reject the amendment to the extent it was procedural when we considered the Committee's regular-cycle report last year, citing "grave constitutional concerns," in particular, that the adoption of the Daubert amendment would "deny[ ] access to the courts." In re Amends. to Fla. Evidence Code , 210 So.3d 1231, 1239 (Fla. 2017).

In addition to the constitutional concerns, the Committee believed that the amendment "would overburden the courts and impede the ability to prove cases on their merits." Comm. Report at 10. Citing numerous federal cases, the Committee explained that, because Daubert covers more subject areas and involves a multi-factorial analysis to determine admissibility, versus Frye 's simple "general acceptance" inquiry, "federal courts commonly must conduct multi-day Daubert hearings at substantial cost in time and money." Id. The Committee stated further:

Florida's judges have not been provided the level of resources and time available to their federal counterparts. The impact of Daubert procedures in Florida state courts would only worsen this disparity.
Litigants in all kinds of cases also bear an increased burden. Having to provide a lengthy expert report or answers to interrogatories, then have an expert witness prepare to testify in a deposition and a Daubert hearing, then defend a Daubert motion, all with the hope of being allowed to do it all over again in trial, is very expensive. Daubert "represents another procedural obstacle, another motion, another hearing, and another potential issue on appeal, all causing more delay and expense."
During [Committee] discussions, concerns were raised that litigation offering expert testimony under Daubert increases litigation costs, a prospect that only wealthy litigants can bear. Family and juvenile cases were raised as an example, since these cases often involve parties with lesser financial capabilities who must somehow participate in Daubert hearings or surrender their rights on the merits due to a lack of resources to fund these evidentiary fights. Contingency cases were mentioned as another example, in cases where some litigants will be unable to find counsel to represent them due to increased expenses associated with the use of experts. A final example was presented in hourly rate cases when many litigants may be unable to afford to pursue the merits of their claims because of the expense of Daubert hearings guaranteed to come.

Comm. Report at 11-12 (citation omitted).

The concerns raised by the Committee do not merely exist in the abstract. Attorney Dan Cytryn, a lawyer with "more than 35 years [of experience] almost exclusively in the area of personal injury," urged this Court not to adopt the amendment because Daubert has made "complex and moderately complex cases ... more expensive to try." Comment by Dan Cytryn at 1, In re Amends. to Fla. Evidence Code , 210 So.3d 1231 ). Cytryn explained that, after Daubert , his law firm "has taken a much closer look at cases that are meritorious , and perhaps are worth under $100,000, but require litigation. [They] have turned down several meritorious cases because of the additional costs and time restraints that Daubert implicates." Id. at 2. While the impact on the workload of the trial courts or the difficulty in finding a lawyer should not be the sole consideration for determining whether a rule of procedure should be adopted, if adoption of the rule is at the expense of litigants' constitutional right to access the courts, then the impact on the workload provides a compelling reason to reject the rule.

The National Association of Criminal Defense Lawyers ("NACDL") raised competing concerns in the battle between Frye and Daubert when we considered the Daubert amendment last year. The NACDL urged this Court to adopt the amendment, arguing that the Frye standard often permits the admission of "flawed scientific evidence." Comment by the NACDL at 2, In re Amends. to Fla. Evidence Code , 210 So.3d 1231 ). The NACDL contended that under Daubert , "the trial court can truly fulfill its critical role as a gatekeeper to ensure that expert testimony is the product of reliable scientific principles and methodology." Id. While I understand the concerns articulated by the NACDL, I am not persuaded that the proper application of the Frye standard is unable to sufficiently guard against these concerns.

As this Court explained in Ramirez v. State , 810 So.2d 836 (Fla. 2001), when applying Frye , a court is not required to determine that evidence is "generally accepted" on the basis of a mere "nose count" of experts in the field. Id. at 844. To the contrary, we explained that the court "may peruse disparate sources-e.g., expert testimony, scientific and legal publications, and judicial opinions-and decide for itself whether the theory in issue has been 'sufficiently tested and accepted by the relevant scientific community.' " Id. (emphasis added) (footnote omitted) (quoting Brim , 695 So.2d at 272 ). We further explained that "[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles is inadequate to establish its admissibility if the witness's application of these principles is untested and lacks indicia of acceptability." Id.

In that case, although several of the State's experts testified that the underlying principle of a particular method concerning knife mark evidence was generally accepted in the field, we concluded that such testimony "standing alone is insufficient to establish admissibility under Frye in light of the fact that [the method's] testing procedure possesse[d] none of the hallmarks of acceptability that apply in the relevant scientific community to [that] type of evidence." Id. at 849. Likewise, in Hadden v. State , 690 So.2d 573 (Fla. 1997), we concluded that a psychologist's opinion "that a child exhibits symptoms consistent with what has come to be known as 'child sexual abuse accommodation syndrome,' " which the State sought to admit, "may not be used in a criminal prosecution for child abuse" because it was not generally accepted by a majority of experts in the field. Id. at 575.

I acknowledge that neither Frye nor Daubert is a perfect standard that will seem fair to all litigants in every proceeding. However, this Court's case law makes clear that a proper and thorough application of Frye allows the trial judge to inquire beyond bare assertions of general acceptance. Daubert , on the other hand, has the potential to infringe on litigants' constitutional right to access the courts. In addition to the time-consuming and potentially cost-prohibitive expense created by Daubert hearings, as well as the onerous barriers to admitting expert testimony, the jury's role in evaluating the merits of the case may nevertheless be usurped even after the trial court has concluded that expert testimony is admissible by an appellate court's overly burdensome application of Daubert , as evidenced by the facts of this case. Accordingly, I do not agree that Daubert is preferable to Frye .

THIS CASE

In this case, after holding Daubert hearings on the plaintiff's experts' testimony, the trial court allowed the experts to testify regarding whether the products of three defendants, which contained asbestos, were a substantial contributing cause of the plaintiff's mesothelioma. Crane Co. v. DeLisle , 206 So.3d 94, 99 (Fla. 4th DCA 2016). The jury asked numerous probative questions during the trial and deliberated for three days before rendering a verdict, in which it apportioned fault against all three named defendants, in addition to a Fabre defendant. Crane , 206 So.3d at 100.

Despite the jury's careful consideration of the case, the Fourth District Court of Appeal reversed for a new trial, concluding that the trial court abused its discretion in admitting three of the plaintiff's expert witnesses who testified regarding causation. Id. ; see majority op. at 1230. As the majority explains, the causation testimony in this case would not have even been subject to a Frye challenge because "medical causation testimony is not new or novel." Majority op. at 1230 (citing Marsh v. Valyou , 977 So.2d 543, 549 (Fla. 2007) ). Similarly, as also noted by the majority, this Court has, for decades, understood that asbestos products "have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others." Majority op. at 1230 (quoting Celotex Corp. v. Copeland , 471 So.2d 533, 538 (Fla. 1985) ).

In other words, before Daubert , the testimony of the plaintiffs' causation experts would not have been subject to challenge. Under Daubert , however, an appellate court can usurp both the function of the trial court in ruling on the admissibility of evidence that is neither new nor novel, and the role of the jury in weighing the evidence and rendering a verdict.

CONCLUSION

For the reasons stated, in addition to the majority's conclusion that the Daubert amendment unconstitutionally infringes on this Court's rulemaking authority, I would also conclude that the Daubert amendment has the potential to unconstitutionally impair litigants' right to access the courts in civil cases. The amendment does nothing to enhance the factfinding process, and instead, displays a gross mistrust of the jury system.

LABARGA, J., concurs.

LABARGA, J., concurring.

I fully concur with the majority opinion, but write separately to express why jurisdiction is proper in this case on the basis of express and direct conflict. In the decision below, the Fourth District Court of Appeal evaluated the admissibility of the experts' testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, as noted by the majority, this Court has repeatedly stated that Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), is the applicable standard for admissibility of expert testimony in Florida. For example, in Marsh v. Valyou , 977 So.2d 543 (Fla. 2007), we explained:

Despite the Supreme Court's decision in Daubert , we have since repeatedly reaffirmed our adherence to the Frye standard for admissibility of evidence. See, e.g. , Ibar v. State , 938 So.2d 451, 467 (Fla. 2006) ("Florida courts do not follow Daubert , but instead follow the test set out in Frye ."), cert. denied , 549 U.S. 1208, 127 S.Ct. 1326, 167 L.Ed.2d 79 (2007) ; Brim v. State , 695 So.2d 268, 271-72 (Fla. 1997) ("Despite the federal adoption of a more lenient standard in [ Daubert ], we have maintained the higher standard of reliability as dictated by Frye ."); Hadden v. State , 690 So.2d 573, 578 (Fla. 1997) ("Our specific adoption of that test after the enactment of the evidence code manifests our intent to use the Frye test as the proper standard for admitting novel scientific evidence in Florida, even though the Frye test is not set forth in the evidence code."); Flanagan v. State , 625 So.2d 827, 829 n.2 (Fla. 1993) ("We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. However, Florida continues to adhere to the Frye test for admissibility of scientific opinions.").

Id. at 547 (alteration in original).

Thus, the decision in DeLisle , which applied the Daubert standard, conflicts with earlier decisions by this Court that conclude Frye is the appropriate test. Although the Legislature amended the Evidence Code in 2013, this Court has never held that Daubert is the appropriate standard for admission of expert testimony in Florida. In fact, in 2017-after the issuance of DeLisle -we expressly declined to adopt the amendments to the Evidence Code implementing Daubert to the extent they were procedural due to "grave constitutional concerns." In re Amendments to Fla. Evidence Code , 210 So.3d 1231, 1239 (Fla. 2017). Accordingly, despite the change in the Evidence Code, conflict between DeLisle and Marsh , Ibar , and other decisions articulating Frye as the applicable standard in Florida remains, and resolution as to which standard applies is critical to resolve uncertainty in Florida law. For this reason, we absolutely possess jurisdiction to address and determine whether the lower court properly applied Daubert .

PARIENTE, J., concurs.

CANADY, C.J., dissenting.

The majority grounds its exercise of jurisdiction on express and direct conflict, asserting that the decision on review, Crane Co. v. DeLisle , 206 So.3d 94 (Fla. 4th DCA 2016) -which applies the Daubert standard codified in revised section 90.702, Florida Statutes -is in conflict with Marsh v. Valyou , 977 So.2d 543 (Fla. 2007), and other cases applying legal principles based on the Frye standard. Under article V, section 3(b)(3) of the Florida Constitution, such jurisdiction exists only if the decision on review "expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." Because Marsh and similar cases do not address "the same question of law" addressed in DeLisle , there is no express and direct conflict jurisdiction.

We have long recognized that a case decided on the basis of a statutory provision cannot be in conflict with an earlier case that pre-dated the effective date of that statutory provision. See In re Interest of M.P. , 472 So.2d 732, 733 (Fla. 1985) (denying review on the ground that the asserted conflict case "arose prior to the effective date" of the controlling statute in the case on review and therefore was "clearly distinguishable"). This follows from the self-evident proposition that one case decided on the basis of a statute and another case decided prior to the effective date of the statute on the basis of previous governing law do not-and could not-address "the same question of law." The new statute changes the legal landscape and presents an entirely novel legal question-namely, what does the new statute provide?

Marsh and similar cases based on Florida's Frye jurisprudence do not address the "same question of law" as the question addressed in DeLisle , which was controlled by and applied amended section 90.702, a statute that became effective after Marsh and similar cases were decided and that was specifically designed to displace Florida's Frye jurisprudence.

To exercise jurisdiction here, the majority sets aside fundamental constitutional principles of conflict jurisdiction. Never before have we exercised conflict jurisdiction on the ground that a case applies a statute that displaces previously existing law. The majority thus charts an unprecedented and ill-advised course that would expand this Court's conflict jurisdiction to encompass every case in which a district court applies a statute that has changed a legal rule in any area of the law. This is a very serious error.

The constitutionality of amended section 90.702 is unquestionably an important issue that is worthy of consideration by this Court. But the importance of an issue does not justify transgressing the constitutional bounds of this Court's jurisdiction. Instead, such an issue should be considered by this Court only in a case that presents a proper basis for jurisdiction under our constitution. Of course, this case might well have presented a basis for jurisdiction. If DeLisle had made an argument to the district court challenging the constitutionality of amended section 90.702, the district court most likely would have addressed that argument in its opinion. And then-depending on the district court's ruling-this Court would have had either mandatory jurisdiction based on a declaration of invalidity, art. V, § 3(b)(1), Fla. Const., or discretionary jurisdiction based on a declaration of validity, art. V, § 3(b)(3), Fla. Const. Yet for some reason, such an argument was not presented to the district court. Parties every day make choices in litigating cases that limit their options for review. And parties ordinarily must live with the choices they make. This Court should not rescue a party from a poor choice by exercising jurisdiction where none exists.

This case should be discharged. I dissent.

POLSTON and LAWSON, JJ., concur.

      We reject the argument that the Fourth District's decision cannot conflict with Marsh v. Valyou , 977 So.2d 543 (Fla. 2007), because it construes an earlier version of the statute. Marsh reaffirmed a procedural rule of the Court that the Legislature has limited authority to repeal. Indeed, Marsh did not construe section 90.702, Florida Statutes (2007), because the test established by Frye v. United State , 293 F. 1013 (D.C. Cir. 1923), was not codified within and, in fact, contradicted it. Accordingly, the conflict between Crane and Marsh is properly before this Court for our review.

      We note, however, that in vigorous accompanying opinions, Justices Shaw and Boyd articulated reasons that public policy, alone, was insufficient to determine the substantive nature of a statutory provision. Justice Shaw, equally relevant to the instant case, was concerned with the rights of access to courts and would have found that the challenged statute denied "rights arising under article I, sections 9 and 21, of the Constitution of 1968." Id. at 885 (Shaw, J., concurring in part and dissenting in part). Justice Boyd would have continued to hold that the joinder of parties is a procedural matter pursuant to Shingleton . VanBibber , 439 So.2d at 886 (Boyd, J., dissenting); see also Smith v. Dep't of Ins. , 507 So.2d 1080, 1092 (Fla. 1987) (finding that statutes addressing the substantive rights of plaintiffs and defendants in civil litigation actions to recover damages did not encroach on the rulemaking authority of this Court).

      We also note our concern that the amendment would affect access to courts much in the same way expressed by Justice Shaw in VanBibber by imposing an additional burden on the courts. The amici in this case have described the additional length and expense Daubert proceedings create. See, e.g., Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

      Crane Co. , 206 So.3d at 111 (citing R.J. Reynolds Tobacco Co. v. Townsend , 90 So.3d 307, 318 (Fla. 1st DCA 2012) (Wetherell, J., concurring in part and dissenting in part).

      Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      Our state constitution provides that "courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay." Art. I, § 21, Fla. Const. We have explained that "[t]his 'openness' and necessity that access be provided 'without delay' clearly indicate that a violation occurs if the statute obstructs or infringes that right to any significant degree."Mitchell v. Moore , 786 So.2d 521, 527 (Fla. 2001). Additionally, because the "right to access is specifically mentioned in Florida's constitution ... it deserves more protection than those rights found only by implication." Id.
      Under this provision, this Court has concluded that certain statutes are unconstitutional because they restrict litigants' access to courts. See, e.g. , Westphal v. City of St. Petersburg , 194 So.3d 311, 327 (Fla. 2016) ; Mitchell , 786 So.2d 521. Justice Shaw reached this conclusion regarding a statute that provided "that an injured party has no beneficial interest in a liability policy until that person has first obtained a judgment against an insured." VanBibber v. Hartford Accident & Indem. Ins. Co. , 439 So.2d 880, 882 (Fla. 1983). Justice Shaw believed the statute was unconstitutional, in part, because it "denie[d] or delay[ed] the rights of access to the courts" under the Florida Constitution. Id. at 883 (Shaw, J., concurring in part and dissenting in part).

      Frye v. United States , 293 F. 1013 (D.C. Cir. 1923).

      Code & Rules of Evidence Comm. Three-Year Cycle Report, In re Amends. to Fla. Evidence Code , 210 So.3d 1231 (Fla. 2017) (cited herein as "Comm. Report").

      A joint comment filed by past presidents of The Florida Bar and other members of The Florida Bar echoed this concern:
      As many of the signers of this comment know personally, the Daubert Law has overburdened and, if adopted by this Court, will continue to overburden our already overstrained and overworked court system. The Daubert Law has resulted, and will result, in unwarranted delays, costs, and expenses in the administration of justice in every kind of case. These delays, costs, and expenses will be borne not only by the courts but by the litigants and will tend to have the most adverse impact on those who lack financial resources.
      Joint Comment by Past Presidents of The Fla. Bar & Other Members of The Fla. Bar at 5, In re Amends. to Fla. Evidence Code , 210 So.3d 1231 ).

      Fabre v. Marin , 623 So.2d 1182 (Fla. 1993).

      Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      Frye v. United States , 293 F. 1013 (D.C. Cir. 1923).


source: Caselaw Access Project

author: PER CURIAM. QUINCE, J., dissenting.

license: Public Domain

text:
    Daniel O. CONAHAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC18-303
    Supreme Court of Florida.
    October 19, 2018
    Neal Dupree, Capital Collateral Regional Counsel, William M. Hennis III, Litigation Director, and Jason Kruszka, Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Daniel O. Conahan, Jr. appeals an order denying a motion to vacate judgments of conviction, including one of first-degree murder, and sentence of death under Florida Rule of Criminal Procedure 3.851.

The underlying facts of this case were described in this Court's opinion on direct appeal. Conahan v. State , 844 So.2d 629, 632-34 (Fla. 2003). After Conahan waived his right to a jury trial, "the trial court found and adjudicated Conahan guilty of first-degree premeditated murder and kidnapping" of Richard Montgomery. Id. at 634. Then, following a unanimous jury recommendation for death, the trial court sentenced Conahan to death for Mr. Montgomery's murder. Id. On direct appeal, we affirmed Conahan's convictions and sentence of death. Id. at 643. We also affirmed the denial of Conahan's initial postconviction motion and denied relief on his habeas petition. Conahan v. State , 118 So.3d 718, 737 (Fla. 2013).

In Conahan's first successive postconviction motion, Conahan raised two claims for relief: (1) newly discovered evidence; and (2) the constitutionality of his death sentence pursuant to Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State , 202 So.3d 40 (Fla. 2016). Conahan v. State , No. SC16-1153, 2017 WL 656306, at *1 (Fla. Feb. 17, 2017). We affirmed the denial of the first claim, but upon agreement of the parties, did not address Conahan's Hurst claim, without prejudice, allowing Conahan to raise the issue in a future proceeding. Id. at *2.

Now, Conahan argues that he is entitled to relief pursuant to Hurst . We agree with Conahan that Hurst is applicable to his case. See Mosley v. State , 209 So.3d 1248, 1276 (Fla. 2016). However, because we find that the Hurst error in this case is harmless beyond a reasonable doubt, we affirm the denial of Hurst relief. See Davis v. State , 207 So.3d 142, 175 (Fla. 2016) ("The unanimous recommendations here are precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death."), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017). We also reject Conahan's Hurst -induced Caldwell claim. See Reynolds v. State , 251 So.3d 811, 824-25 (Fla. 2018)petition for cert. filed , No. 18-5181 (U.S. July 3, 2018). Finally, we reject Conahan's contention that he is entitled to application of chapter 2017-1, Laws of Florida. See Taylor v. State , 246 So.3d 231, 240 (Fla. 2018) ("[W]e rejected as without merit the claim that chapter 2017-1, Laws of Florida, created a substantive right that must be retroactively applied.").

Accordingly, we affirm the denial of postconviction relief.

It is so ordered.

LEWIS, LABARGA, and LAWSON, JJ., concur.

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

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

QUINCE, J., dissents with an opinion.

PARIENTE, J., concurring in result.

I agree that Conahan is not entitled to Hurst relief. I write separately to explain that it is the combination of the jury's unanimous recommendation for death and the absence of any stricken aggravating factor or other issue that would undermine the reliability of the jury's unanimous recommendation that allows this Court to conclude that the Hurst error in Conahan's case was harmless beyond a reasonable doubt.

QUINCE, J., dissenting.

I do not agree with the majority's conclusion that there is no reasonable possibility that the Hurst error in this case did not affect Conahan's sentence. We declined to speculate about why the jurors voted for death in Hurst v. State , 202 So.3d 40, 69 (Fla. 2016). The majority's determination that the Hurst error in this case is harmless beyond a reasonable doubt amounts to pure speculation. This Court cannot know whether the jury would have found unanimously each aggravating factor, and that the aggravation outweighed mitigation as Hurst requires. The HAC and CCP aggravators in particular require findings of fact that the jury did not make. To find the error in this case harmless is to substitute our own evaluation of the evidence for the jury's. Therefore, I dissent.

      We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      See, e.g. , Reynolds v. State , 251 So.3d 811, 829-30 (Fla. 2018) (Pariente, J., dissenting) (explaining how Hurst could have affected defendant's decision to waive mitigation); Grim v. State , 244 So.3d 147, 148-52 (Fla. 2018) (Pariente, J., dissenting) (explaining how a mitigation waiver affects the Hurst harmless error analysis); Middleton v. State , 42 Fla. L. Weekly S637, --- So.3d ----, ---- - ----, 2017 WL 2374697, *1-2 (Fla. June 1, 2017) (Pariente, J., dissenting) (explaining how a stricken aggravating factor affects the Hurst harmless error analysis), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018) ; see also Davis v. State , 207 So.3d 142, 173-75 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017).


author: PER CURIAM. PARIENTE, J., dissenting.

text:
    Arthur O'Derrell FRANKLIN, Petitioner, v. STATE of Florida, Respondent.
    No. SC14-1442
    Supreme Court of Florida.
    November 8, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

At the age of 17, Arthur O'Derrell Franklin committed a series of brutal crimes against women. In each case, the female victim testified that Franklin violently attacked her, kidnapped her, drove her to a secluded area and brutally battered, raped, and robbed her while evidencing an extraordinary cruelty and a perverse enjoyment of the suffering he was inflicting. In one case, "the physician who performed the sexual assault battery exam testified that the victim suffered the worst injuries the physician had ever observed." Franklin v. State , 141 So.3d 210, 215 (Fla. 1st DCA 2014) (Thomas, J., concurring). In each of three cases, Franklin was convicted of armed kidnapping, kidnapping, armed sexual battery, sexual battery, armed robbery, robbery, and aggravated assault, and was sentenced to three 1000-year concurrent sentences with parole. Id. at 213 (Thomas, J., concurring). The Parole Commission conducted Franklin's initial parole review and ten subsequent review hearings, and has calculated a presumptive parole release date of 2352. Following the United States Supreme Court's decisions in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Franklin filed a motion to vacate his sentences pursuant to Florida Rule of Criminal Procedure 3.850, arguing that his sentences violate the Eighth Amendment to the United States Constitution as delineated in Graham and requesting resentencing. However, the trial court denied the motion, and the First District Court of Appeal affirmed on appeal. Franklin , 141 So.3d at 211. We accepted discretionary review, and for the reasons explained below we now approve the First District's decision and hold that Franklin's sentences with the possibility of parole do not violate Graham , meaning that Franklin is not entitled to resentencing under chapter 2014-220, Laws of Florida.

In Graham , 560 U.S. at 75, 130 S.Ct. 2011, the Supreme Court held that the Eighth Amendment categorically forbids a sentence of life without parole for juvenile nonhomicide offenders, and required that any life sentence for a juvenile nonhomicide offender be accompanied by "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" before the end of the sentence and during the offender's natural life. Notably, the Court did not require that the State actually release a juvenile offender during his natural life or guarantee his eventual freedom, as "those who commit truly horrifying crimes as juveniles may turn out to be irredeemable" and "will remain behind bars for life." Id.

Later in Miller , 567 U.S. at 479, 132 S.Ct. 2455, the United States Supreme Court extended the reasoning of Graham and created another Eighth Amendment rule prohibiting the imposition of a mandatory life sentence without the possibility of parole for juvenile homicide offenders. Miller did "not foreclose a sentencer's ability to [impose a life without parole sentence] in homicide cases," but required the sentencer to first "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480, 132 S.Ct. 2455.

Applying principles discussed in Graham and Miller , a majority of this court held in Atwell v. State , 197 So.3d 1040, 1048-50 (Fla. 2016), that a juvenile homicide offender's life with parole sentence violated the Eighth Amendment based largely upon a presumptive parole release date set far beyond Atwell's life expectancy. The decision below, finding no Eighth Amendment violation, despite a presumptive parole release date set far beyond Franklin's life expectancy, clearly conflicts with Atwell .

However, instructed by a more recent United States Supreme Court decision, Virginia v. LeBlanc , --- U.S. ----, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017), we have since determined that the majority's analysis in Atwell improperly applied Graham and Miller . See State v. Michel , 257 So.3d 3, 6, 2018 WL 3613383 (Fla. July 12, 2018) (explaining that LeBlanc made clear that it was not an unreasonable application of Graham "to conclude that, because the [state's] geriatric release program employed normal parole factors, it satisfied Graham 's requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole")(quoting LeBlanc , 137 S.Ct. at 1729 ) ). As we held in Michel , involving a juvenile homicide offender sentenced to life with the possibility of parole after 25 years, Florida's statutory parole process fulfills Graham 's requirement that juveniles be given a "meaningful opportunity" to be considered for release during their natural life based upon "normal parole factors," LeBlanc , 137 S.Ct. at 1729, as it includes initial and subsequent parole reviews based upon individualized considerations before the Florida Parole Commission that are subject to judicial review, Michel , 257 So.3d at 6 (citing §§ 947.16-.174, Fla. Stat.).

As in Michel , because Franklin's sentences include eligibility for parole there is no violation of the categorical rule announced in Graham . Michel , 43 Fla. L. Weekly at S299-300, 257 So.3d at ----.

CONCLUSION

We approve the First District's decision in Franklin and hold that Franklin's 1000-year sentences with parole eligibility do not violate the categorical rule of Graham .

It is so ordered.

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

PARIENTE, J., dissents with an opinion, in which QUINCE and LABARGA, JJ., concur.

PARIENTE, J., dissenting.

Arthur Franklin committed nonhomicide crimes at age 17 and received concurrent sentences of 1000 years. Now 51, he has spent his entire adult life in prison. Franklin has appeared before the Parole Commission 11 different times between 1987 and 2014. Yet, there is no indication that the Parole Commission has made the constitutionally required considerations regarding whether Franklin is entitled to release based on maturity and rehabilitation.

Most recently, when the trial court held a hearing to consider Franklin's motion for relief from his 1000-year sentences, Franklin was without counsel and no evidentiary hearing was held. At the very least, this case should be remanded to the trial court for an evidentiary hearing, where Franklin is represented by counsel, to determine whether the parole process, as applied to his case, provides Franklin the constitutionally required individualized consideration and a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 734-36, 193 L.Ed.2d 599 (2016).

As the record stands, the earliest Franklin could be released from prison based on existing parole guidelines is 2352-369 years after his crimes. At his first parole review in 1987, the Parole Commission assessed 4400 months for the aggravating factors of his multiple offenses, giving Franklin a presumptive parole release date (PPRD) of 2350. The PPRD varied only a few years in his ten subsequent parole reviews. There is no indication that Franklin has even a chance of being released before the end of his natural life expectancy. Thus, Franklin has no "hope for some years of life outside prison walls." Id. at 737.

Perhaps even more salient than the defendant in Atwell or the defendant in Michel , the operation of Florida's parole system in this case leaves Franklin with a sentence that is "guaranteed to be just as lengthy as, or the 'practical equivalent of,' a life sentence without the possibility of parole." Atwell , 197 So.3d at 1048. This case highlights how, contrary to the majority's suggestion, Florida's current parole system affords juvenile offenders no meaningful opportunity for release. As I have previously explained:

In Atwell , this Court concluded that "Florida's existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell's juvenile status at the time of the murder." 197 So.3d at 1041. We further explained that Florida's "current parole process ... fails to take into account the offender's juvenile status at the time of the offense and effectively forces juvenile offenders to serve disproportionate sentences." Id. at 1042.
This Court could not have been clearer in its conclusion that "[p]arole is, simply put, 'patently inconsistent with the legislative intent' as to how to comply with Graham [v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),] and Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ]." Id. at 1049 (quoting Horsley [ v. State ], 160 So.3d [393,] 395 [ (Fla. 2015) ] ). As the Atwell Court noted, while the Legislature could have chosen "a parole-based approach" to comply with Miller and Graham , it chose instead to fashion a different remedy of resentencing under a new law, which explicitly considers the Miller factors. Id.
Specifically, Florida's current parole system does not provide juvenile offenders an opportunity to demonstrate that release is appropriate based on maturity and rehabilitation for several reasons. First, the Commission relies on static, unchanging factors, such as the crimes committed and previous offenses, when determining whether or not to grant an offender parole. See Fla. Admin. Code. R. 23-21.007. Under Graham , however, a juvenile's "meaningful opportunity to obtain release [must be] based on demonstrated maturity and rehabilitation." Graham , 560 U.S. at 75 [130 S.Ct. 2011]. Relying on static factors such as the offense committed ignores the focus on the "demonstrated maturity and rehabilitation" that Graham and Miller require. Id.
Second, an inmate seeking parole has no right to be present at the Commission meeting and has no right to an attorney. Although the hearing examiner sees the inmate prior to the hearing, the commissioners do not. Fla. Admin. Code R. 23-21.004(13) ; 23-21.001(6). Third, there is only a limited opportunity for supporters of the inmate to speak on the inmate's behalf. Fla. Comm'n on Offender Review, Release and Supervision Frequently Asked Questions , https://www.fcor.state.fl.us/mediaFactSheet.shtml (last visited April 10, 2018) ("All speakers, in support, must share the allotted 10 minute time frame for speaking. All speakers, in opposition, must share the allotted 10 minute time frame for speaking."). Finally, there is no right to appeal the Commission's decision, absent filing a writ of mandamus. Armour v. Fla. Parole Comm'n , 963 So.2d 305, 307 (Fla. 1st DCA 2007).

Michel , 257 So.3d at 15 (Pariente, J., dissenting).

The majority again displaces this Court's precedent in Atwell , arguing that it has somehow been overruled by the United States Supreme Court's opinion in Virginia v. LeBlanc , --- U.S. ----, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017). I again reiterate why the majority's reliance on that decision is misplaced:

[T]here are two reasons why the plurality's reliance on LeBlanc is misplaced. First, the plurality fails to mention that the United States Supreme Court was considering only whether the Fourth Circuit had improperly intruded on the authority of the Virginia Supreme Court to conclude that its program satisfied the Eighth Amendment. As the LeBlanc court explained:
In order for a state court's decision to be an unreasonable application of this Court's case law, the ruling must be "objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald , 575 U.S. ----, ----, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam) (internal quotation marks omitted). In other words, a litigant must "show that the state court's ruling ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Ibid. (internal quotation marks omitted). This is "meant to be" a difficult standard to meet.
Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
Id. at 1728. Accordingly, even if the United States Supreme Court believed that the Virginia Supreme Court's decision was in error, this still would not have been enough to overturn the state court decision. Instead of looking at the LeBlanc decision in its proper context through the rigorous standard of review, the plurality uses the United States Supreme Court opinion to adopt the dissent written by Justice Polston in Atwell . See Atwell , 197 So.3d at 1050 (Polston, J., dissenting).
In fact, the United States Supreme Court's holding in LeBlanc made no mention of this Court's opinion in Atwell , nor was it considering a state statute similar to that at issue in this case. Despite the weight the plurality would give the opinion, LeBlanc has no precedential value in this instance and does not implicate this Court's requirement to construe our Eighth Amendment jurisprudence in conformance with the United States Supreme Court.
Second, a review of LeBlanc demonstrates that Virginia's geriatric release program is entirely different from Florida's parole system. Indeed, the program includes a consideration of many factors such as the " 'individual's history ... and the individual's conduct ... during incarceration,' as well as the individual's 'inter-personal relationships with staff and inmates.' " LeBlanc , 137 S.Ct. at 1729 (quoting LeBlanc v. Mathena , 841 F.3d 256, 280-81 (4th Cir. 2016) (Niemeyer, J., dissenting) ). Consideration of these factors could lead to the individual's conditional release in light of his or her "demonstrated maturity and rehabilitation." Id. (quoting Graham , 560 U.S. at 75, 130 S.Ct. 2011 ). Florida's parole system, as we explained in Atwell , does not-with its primary concern being on the perceived dangerousness of the criminal defendant. Indeed, the Florida Commission on Offender Review's mission statement is "Ensuring public safety and providing victim assistance through the post prison release process." Fla. Comm'n on Offender Review 2016 Annual Report (2016), https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf.

Michel , 257 So.3d at 15 (Pariente, J., dissenting).

Franklin is clearly entitled to relief pursuant to this Court's opinion in Atwell . His PPRD of 2352 is 222 years beyond Atwell's PPRD, which we held unconstitutional. As this Court explained in Atwell :

A presumptive parole release date set decades beyond a natural lifespan is at odds with the Supreme Court's recent pronouncement in Montgomery . Although a State's remedy to Miller could include a system for paroling certain juvenile offenders "whose crimes reflected only transient immaturity-and who have since matured," the parole system would nevertheless still have to afford juvenile offenders individualized consideration and an opportunity for release. Montgomery , --- U.S. ----, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016). Most importantly, "their hope for some years of life outside prison walls must be restored." Id. at 737.
The United States Supreme Court concluded its Miller opinion by emphasizing that " Graham , Roper [v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ], and [the Supreme Court's] individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Miller , 132 S.Ct. at 2475. Even a cursory examination of the statutes and administrative rules governing Florida's parole system demonstrates that a juvenile who committed a capital offense could be subject to one of the law's harshest penalties without the sentencer, or the Commission, ever considering mitigating circumstances.

Atwell , 197 So.3d at 1048-49.

Thus, I would conclude that Franklin's sentences clearly violate the United States Constitution. In doing so, I note that "[t]his result would not guarantee [Franklin] any particular term of years sentence ... but would require the sentencing court to consider all of the Miller factors when resentencing [Franklin]." Michel , 43 Fla. L. Weekly at S304, --- So.3d at ---- (Pariente, J., dissenting).

CONCLUSION

For these reasons, I would quash the First District Court of Appeal's decision in Franklin v. State , 141 So.3d 210, 215 (Fla. 1st DCA 2014), affirming Franklin's sentences, and remand for resentencing. At the very least, Franklin is entitled to an evidentiary hearing, with the representation of counsel, to determine whether the parole process will afford him a meaningful opportunity for release based on demonstrated maturity and rehabilitation, as the Eighth Amendment to the United States Constitution requires.

QUINCE and LABARGA, JJ., concur.

      See art. V, § 3(b)(3), Fla. Const.

      The First District decided Franklin before we decided Atwell . However, we stayed Franklin pending resolution of several other cases.

      Atwell v. State , 197 So.3d 1040 (Fla. 2016).

      State v. Michel , 257 So.3d 3 (Fla. July 12, 2018).


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO FLORIDA RULES OF APPELLATE PROCEDURE 9.146 AND 9.210.
    No. SC18-1917
    Supreme Court of Florida.
    December 6, 2018
    Courtney Rebecca Brewer, Chair, Appellate Court Rules Committee, Tallahassee, Florida; and Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

We have for consideration proposed amendments to Florida Rules of Appellate Procedure 9.146 (Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involving Families and Children in Need of Services) and 9.210 (Briefs). We have jurisdiction and adopt the amendments as proposed.

Background

The Appellate Court Rules Committee (Committee) filed a motion for rehearing in In re Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure-Electronic Service , No. SC17-882 (Fla. motion filed Nov. 8, 2018). As relevant here, in that case, the Court amended Rule of Judicial Administration 2.514 (Computing and Extending Time) to do away with the additional five days in which to act after service by e-mail and amended a number of appellate rules to enlarge existing time frames. See In re Amends. to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro., & Fla. Rules of App. Pro.-Electronic Service , 43 Fla. L. Weekly S515, (Case No. SC17-882 (Fla. Oct. 25 2018) ). In the motion for rehearing, the Committee asked the Court to "make conforming changes" to the recent amendments to rules 9.146 and 9.210 that provide time periods for serving responsive briefs when more than one initial or answer brief is authorized in an appeal or cross-appeal. Those amendments were adopted in another case, see In re Amendments to the Florida Rules of Appellate Procedure-2017 Regular-Cycle Report , 43 Fla. L. Weekly S508 (Fla. Oct 25, 2018), and included, fully engrossed, in rules 9.146 and 9.210 as amended in Case No. SC17-882. The Court denied the motion for rehearing and treated the motion as a proper out-of-cycle report filed under Florida Rule of Judicial Administration 2.140(e)(1), proposing the new rule amendments, which are the subject of this case. See In re Amends. to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro. & Fla. Rules of App. Pro.-Electronic Service, No. SC17-882 (Fla. order filed Nov. 20, 2018).

Amendments

After considering the Committee's proposals, we amend rules 9.146(g)(3)(B) (Special Procedures and Time Limitations Applicable to Appeals of Final Orders in Dependency or Termination of Parental Rights Proceedings; Briefs; Times for Service) and 9.210(f) (Times for Service of Briefs) as requested. The amendments conform the time periods for serving responsive briefs, when more than one initial or answer brief is authorized in an appeal or cross-appeal, with the enlarged time frames in the appellate rules adopted in Case No. SC17-882. The twenty- and ten-day time periods in rule 9.146(g)(3)(B) are changed to thirty and fifteen days, respectively. The twenty-day time periods in rule 9.210(f) are changed to thirty days.

Conclusion

Accordingly, we amend the Florida Rules of Appellate Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective on January 1, 2019, at 12:03 a.m. Because the amendments were not published for comment prior to their adoption, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 9.146. APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES
(a)-(f) [No change]
(g) Special Procedures and Time Limitations Applicable to Appeals of Final Orders in Dependency or Termination of Parental Rights Proceedings.
(1)-(2) [No change]
(3) Briefs.
(A) [No change]
(B) Times for Service. The initial brief shall be served within 30 days of service of the record on appeal or the index to the record on appeal. The answer brief shall be served within 30 days of service of the initial brief. The reply brief, if any, shall be served within 15 days of the service of the answer brief. In any appeal or cross-appeal, if more than 1 initial or answer brief is authorized, the responsive brief shall be served within 2030 days after the last initial brief or within 1015 days after the last answer brief was served. If the last authorized initial or answer brief is not served, the responsive brief shall be served within 2030 days after the last authorized initial brief or within 1015 days after the last authorized answer brief could have been timely served.
(4)-(7) [No change]
(h)-(i)
Committee Notes [No change]
RULE 9.210. BRIEFS
(a)-(e) [No change]
(f) Times for Service of Briefs. The times for serving jurisdiction and initial briefs are prescribed by rules 9.110, 9.120, 9.130, and 9.140. Unless otherwise required, the answer brief shall be served within 30 days after service of the initial brief; the reply brief, if any, shall be served within 30 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 30 days thereafter. In any appeal or cross-appeal, if more than 1 initial or answer brief is authorized, the responsive brief shall be served within 2030 days after the last initial or answer brief was served. If the last authorized initial or answer brief is not served, the responsive brief shall be served within 2030 days after the last authorized initial or answer brief could have been timely served.
(g) [No change]
Committee Notes [No change] Court Commentary [No change]

      See art. V, § 2(a), Fla. Const.

      All comments must be filed with the Court on or before February 19, 2019, with a certificate of service verifying that a copy has been served on the Committee Chair, Ms. Courtney Rebecca Brewer, 325 N Calhoun Street, Tallahassee, Florida 32301-7605, cbrewer@mills-appeals.com, and on the Bar Staff Liaison to the Committee, Ms. Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, HTelfer@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until March 12, 2019, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal , Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court , Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.