author: PARIENTE, J. CANADY, J., specially concurring.

text:
    Luis Torres JIMENEZ, Petitioner, v. STATE of Florida, Etc., et al., Respondents.
    No. SC16-1976
    Supreme Court of Florida.
    [May 3, 2018]
    Marc A. Wites of Wites & Kapetan, P.A., Lighthouse Point, Florida; Stephen F. Rosenthal and Ramon A. Rasco of Podhurst Orseck, P.A., Miami, Florida; and Louis C. Arslanian of Gold & Associates, P.A., Hollywood, Florida, for Petitioner
    Edward G. Guedes and Samuel I. Zeskind of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida; and Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Rachel Nordby, Deputy Solicitor General, Tallahassee, Florida, and Robert Dietz, Senior Assistant Attorney General, Tampa, Florida, for Respondent
    E. Bruce Johnson and Christopher J. Stearns of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, Florida; and Kraig A. Conn and David Cruz of Florida League of Cities, Inc., Tallahassee, Florida, Amici Curiae Florida League of Cities, Inc., Village of Bal Harbor, City of Cocoa Beach, Town of Cutler Bay, City of Doral, Village of Key Biscayne, City of Miami Gardens, Village of Palm Springs, City of Sunrise, City of West Park, Town of Campbellton, City of Clermont, City of Coral Springs, Village of El Portal, City of Green Cove Springs, City of Hialeah Gardens, City of Holly Hill, Town of Juno Beach, City of Lauderdale Lakes, City of Miami Springs, City of Milton, North Bay Village, City of Oldsmar, City of Opa-locka, Town of Orange Park, City of Palatka, City of Palm Coast, City of Surfside, City of Sweetwater, City of Tamarac, City of West Miami, and City of Pembroke Pines ("Local Governments")
   PARIENTE, J.

Luis Torres Jimenez received a traffic citation, based on images from a red light camera that showed him turning right while the traffic signal was red at an intersection marked no-turn-on-red. Jimenez does not dispute that he did, in fact, commit a traffic infraction. Instead, Jimenez challenges the legality of the City of Aventura's red light camera enforcement program, which includes the use of a third-party agent to review images from the City's red light cameras before sending them to City police to determine whether a traffic citation should be issued.

The issue before the Court involves the interpretation of the Mark Wandall Traffic Safety Program, which grants local governments' traffic enforcement officers the power to issue citations for traffic infractions captured by red light cameras. See ch. 2010-80, § 5, Laws of Fla.; § 316.0083(1)(a), Fla. Stat. (2014). In addition to this grant of authority, section 316.0083(1)(a)"does not prohibit a review of information" from red light cameras by a local government's authorized agent before issuance of the traffic citation by a trained traffic enforcement officer. § 316.0083(1)(a), Fla. Stat. (2014) (emphasis added). In this case, this Court is asked to determine the meaning of the word "review," as used in section 316.0083(1)(a).

The Third District Court of Appeal held that the City did not violate the statute because the City provided its authorized agent with written guidelines to aid its review of the red light camera images, and the decision whether to issue a traffic citation based on the images was made by the City's traffic enforcement officer. State ex rel. City of Aventura v. Jimenez , 211 So.3d 158, 160 (Fla. 3d DCA 2016). The Third District also certified a question of great public importance, which, for purposes of clarity, we rephrase as follows:

Does a local government have the authority under section 316.0083(1)(a), Florida Statutes (2014), to contract with a private third-party vendor to review and sort information from red light cameras, in accordance with written guidelines provided by the local government, before sending that information to a trained traffic enforcement officer who determines whether probable cause exists and a citation should be issued?

Id. at 171. We have jurisdiction. See art. V, § 3(b)(4), Fla Const.

For the reasons that follow, we answer the rephrased certified question in the affirmative. We therefore approve the Third District's decision.

FACTUAL BACKGROUND

The City's Red Light Camera Program

The City entered into a contract with American Traffic Solutions, Inc. ("the Vendor") to service the City's red light camera enforcement program. Jimenez , 211 So.3d at 159. The contract states in pertinent part:

Vendor shall act as City's agent for the limited purpose of making an initial determination of whether the recorded images should be forwarded to an Authorized Employee to determine whether an infraction has occurred and shall not forward for processing those recorded images that clearly fail to establish the occurrence of an infraction.

Id. at 162 (emphasis omitted). The Third District explained the Vendor's responsibilities under the contract:

Under the contract and its various amendments, the Vendor sorts the information and images generated by the system into two databases: a "working" database that the City police review to decide whether to issue a citation and a "non-working" database that the City police do not review for that purpose. Each image placed in the non-working database is reported, and the reason for placing the image in the non-working database is explained by the Vendor on a report screen. The report screen is periodically reviewed by the sergeant in charge of the City's review. The non-working database remains available and is occasionally accessed by the police for other investigations.
Each month, approximately 5,000 images are sorted into the working database and 3,000 are sorted into the non-working database. The police sergeant who oversees the City's review testified that the City would be overwhelmed if it was required to review all images generated by the system.
To sort images, the Vendor conducts a review that includes (1) confirming workable images exist (and the camera did not simply misfire); (2) examining the images to verify the license plate of the subject vehicle is legible; (3) using the license plate number in an automated process to obtain the identifying information of the registered owner from the Florida Department of Motor Vehicles; (4) confirming the capture of date, time-of-day, speed, and timing-of-light data; (5) checking the "A" shot, which is a still photograph showing the vehicle approaching the intersection; (6) checking the "B" shot, which shows the vehicle in the intersection; and (7) checking the twelve-second video clip that shows the vehicle approaching and traveling through the intersection. The Vendor can pause the video and view it frame by frame.
A representative of the Vendor testified that the Vendor's task when reviewing images was to filter out images that were "useless." A clear example, she explained, is where a camera simply misfired and failed to record an image. Other examples are where the light displays green or where images fail to capture a vehicle's license plate number. These images were useless, she testified, because "the police cannot do anything with them." But other images are determined to be useless based on the specific and detailed contract language and City guidelines.

Id. at 161.

To aid the Vendor in the sorting process, the City provided the Vendor with a set of guidelines, known as the "Business Rules Questionnaire." Id. at 162. The Third District explained:

The guidelines govern the Vendor's task of checking the "A" and "B" shots and the video clip. The guidelines were created by a process in which the Vendor identified scenarios or decision points and suggested alternative solutions to the City. For the most part, the City selected one of the alternative solutions suggested by the Vendor, but in several instances, the City created its own solutions.
For example, guideline 4.1 concerns the line of demarcation, which means the boundary of the intersection. This is the line used to evaluate the "A" shot, which is the photograph that shows the vehicle approaching the intersection. In reviewing this guideline, one must keep in mind that if the front tires of a vehicle crossed the boundary and entered the intersection when the light is still displaying green, the vehicle obviously is not running a red light. Conversely, if the front tires had not yet reached this line when the light displays red, the vehicle would appear to be running a red light (assuming the vehicle does not immediately stop within the edge of the intersection and wait for a green light). All of the City intersections containing red light cameras have painted stop lines. The Vendor provided four alternative suggestions for the line of demarcation: (1) the stop line; (2) the prolongation of the curb; (3) the crosswalk; and (4) whichever line the tires will hit first. The City adopted the first suggestion: the line of demarcation is the painted stop line. A similar process was followed for the other guidelines.

Id. at 162-63.

As to the role of traffic enforcement officers in the City's red light camera program, the Third District explained:

The police officers assigned to red light camera enforcement access the working database by logging into the server using their own unique user identification and password. The officers decide to issue a citation based on the images in the same manner they decide to issue a roadside citation. If, after reviewing the photographs, video, and other information, the officer decides to issue a citation, the officer clicks the "accept" button on the screen. By doing so, the officer authorizes his or her electronic signature and badge number to appear on the notice and citation. The officer's review and determination in this regard is far from a mere rubber stamp. As the trial court expressly found, "[o]f the images reviewed by the City's police officers, only between sixty-five percent (65%) and seventy percent (70%) are approved as a violation."

Id. at 163 (alteration in original); see § 316.640(1)(b)3., Fla. Stat. (2014) (empowering local police departments to "designate employees as traffic infraction enforcement officers").

Jimenez's Citation

Jimenez received a traffic citation charging him with "running a red light by turning right at an intersection marked no-turn-on-red." Jimenez , 211 So.3d at 159. Probable cause for the citation was based on photographs and video from the City's red light camera program. Id. Officer Jeanette Castro, "a thirteen-year veteran of the City Police Department who has issued thousands of traffic citations roadside, and hundreds as part of the red light camera program," issued Jimenez's citation. Id. at 163. She testified that her decision to issue Jimenez's citation "was based on the same factors and criteria she uses when she issues a citation for a similar roadside violation." Id. at 164.

Jimenez moved to dismiss his citation in county court, arguing that the City's red light camera program is illegal because it gives the Vendor unfettered discretion (1) "that exceeded the City's statutory authority to use an agent" to review images from red light cameras; (2) "in printing and mailing notices and citations in violation" of Florida Statutes; and (3) in sending an electronic copy of the citation to the Clerk of Courts in violation of Florida Statutes. Id. at 159-60. Following an evidentiary hearing, the county court dismissed Jimenez's citation. Id. at 159, 164. While the county court agreed with the City that there was no violation in the Vendor printing and mailing notices and citations or sending an electronic copy of the citation to the Clerk of Court, it concluded that it was "bound by" City of Hollywood v. Arem , 154 So.3d 359 (Fla. 4th DCA 2014), in which the Fourth District Court of Appeal affirmed the trial court's dismissal of a traffic citation, holding that the City of Hollywood's red light camera enforcement program amounted to an unlawful delegation of the City's police power under section 316.0083(1)(a). Id. at 361. Although the county court dismissed Jimenez's citation, in a very well-reasoned and detailed order, it certified the same three questions to the Third District that the Third District has now certified to this Court regarding the City's authority to contract with a third party to review images captured by red light cameras.

The Third District's Decision

Jimenez argued in the Third District that the City's guidelines gave the Vendor "unfettered discretion to place items into the non-working database where they are never reviewed by the police for purposes of issuing citations." Jimenez , 211 So.3d at 165. The Third District rejected that argument, explaining that "the type of evaluation exercised in the Vendor's decisions is clerical and ministerial." Id. at 166. Additionally, the Third District noted that the Vendor was instructed that "if there is any doubt" as to whether an image should be placed in the working queue, it should "send [the image] to the police for review." Id. Similarly, if an image presented a situation that was not addressed in the guidelines, the Vendor was instructed to "always put [it] in the working database for police review." Id. at 168. Lastly, the City does not issue any citation "unless and until an individual officer of the City weighs the evidence in the images and determines in his or her professional judgment that probable cause exists," and "[t]he officers make these decisions in the same manner they decide to issue a roadside citation." Id. The Third District thus concluded that there was no unconstitutional delegation of authority and reversed the dismissal of the citation.

ANALYSIS

The issue before the Court involves the meaning of the word "review" as used in section 316.0083(1)(a), Florida Statutes (2014). Because resolving this question requires us to construe the relevant statutory provisions, our review is de novo. See Borden v. East-European Ins. Co. , 921 So.2d 587, 591 (Fla. 2006).

Our analysis begins with chapter 316, Florida Statutes, which codifies the "Florida Uniform Traffic Control Law." § 316.001, Fla. Stat. (2014). We then turn to the Mark Wandall Traffic Safety Act, which authorizes traffic enforcement officers to issue traffic citations based on images from red light cameras. Ch. 2010-80, § 5, Laws of Fla.; § 316.0083(1)(a), Fla. Stat. (2014). After setting forth the relevant statutory provisions, we discuss two additional district court decisions that have addressed the legality of red light camera enforcement programs. Finally, with the legal background set, we answer the rephrased certified question in this case.

I. The Florida Uniform Traffic Control Law

Chapter 316, Florida Statutes, codifies the "Florida Uniform Traffic Control Law." § 316.001, Fla. Stat. (2014). The Legislature's intent in creating the chapter was "to make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities." Id. § 316.002. Section 316.002 makes it unlawful "for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of" chapter 316. Id. Striking a similar tone, section 316.007 states that the provisions of chapter 316 "shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized." Id. § 316.007. This Court has stated that "[c]hapter 316 could not be clearer in providing that local ordinances on 'a matter covered by' the chapter are preempted unless an ordinance is 'expressly authorized' by the statute." Masone v. City of Aventura , 147 So.3d 492, 496-97 (Fla. 2014) (quoting § 316.007, Fla. Stat. (2008) ).

The Mark Wandall Traffic Safety Act

In 2010, the Legislature enacted the Mark Wandall Traffic Safety Act ("the Wandall Act"), which authorizes local governments "to use traffic infraction detectors under certain circumstances." Ch. 2010-80, Laws of Fla.; see id. § 13. A "traffic infraction detector" is defined as:

A vehicle sensor installed to work in conjunction with a traffic control signal and a camera or cameras synchronized to automatically record two or more sequenced photographic or electronic images or streaming video of only the rear of a motor vehicle at the time the vehicle fails to stop behind the stop bar or clearly marked stop line when facing a traffic control signal steady red light.

§ 316.003(87), Fla. Stat. (2014). In layman's terms, a traffic infraction detector is a red light camera. See id.

Section 316.0076, Florida Statutes (2014), expressly preempts the "[r]egulation of the use of cameras for enforcing the provisions of" chapter 316 "to the state." Express preemption notwithstanding, section 316.008, Florida Statutes (2014), states that "[t]he provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power" from using red light cameras. Id. § 316.008(1) ; accord id. (8).

Section 316.0083(1)(a) expressly authorizes a traffic infraction enforcement officer to issue a traffic citation for a violation of certain red light traffic infractions. Id. § 316.0083(1)(a). Section 316.0083(1)(a) also states:

This paragraph does not prohibit a review of information from a traffic infraction detector by an authorized employee or agent of the department, a county, or a municipality before issuance of the traffic citation by the traffic infraction enforcement officer.

Id. (emphasis added).

Having set forth the relevant statutory provisions, we now turn to address two other district court decisions that examined the legality of red light camera enforcement programs.

II. Related District Court of Appeal Decisions

In dismissing Jimenez's citation, the county court relied on City of Hollywood v. Arem , in which the Fourth District held that the City of Hollywood was "not authorized to delegate police power by entering into a contract that allows a private vendor to screen data and decide whether a violation has occurred before sending that data to a traffic infraction enforcement officer ... to use as the basis for authorizing a citation." 154 So.3d at 361. The Fourth District further concluded in Arem that the City of Hollywood "lack[ed] the lawful authority to outsource to a third-party vendor the ability to make the initial review of the computer images of purported violations and then use its unfettered discretion to decide which images are sent to the [traffic enforcement officer], and which ones are not." Id. at 365.

Addressing the same issue in City of Oldsmar v. Trinh , 210 So.3d 191 (Fla. 2d DCA 2016), the Second District Court of Appeal agreed with the Third District in Jimenez that, because the traffic enforcement officer "makes the determination about whether probable cause for a violation exists and whether to issue a notice of violation, no unauthorized delegation of police power has occurred." Id. at 207. The Second District certified conflict with Arem , explaining that it "simply disagree[d] with th[e] conclusion in Arem " that a review of images by the City's authorized agent in accordance with certain guidelines provided by the City was not an authorized delegation of police power. Id. at 205.

We now turn to the rephrased certified question presented in this case.

III. The Rephrased Certified Question

Jimenez argued to the county court and the Third District that the City's red light camera enforcement program amounted to an unlawful delegation of police powers by giving the Vendor "unfettered discretion that exceeded the City's statutory authority to use an agent to 'review' images" under section 316.0083(1)(a). Jimenez , 211 So.3d at 159-60. In this Court, Jimenez does not pursue his unlawful delegation argument and argues instead that the City's red light camera enforcement program (A) unlawfully exceeds the authority conferred upon the City by the Legislature because "review" under section 316.0083(1)(a) is limited to determining whether images from red light cameras are "complete and usable"; and (B) is unconstitutional because it violates the uniformity principle set forth in chapter 316. We address each argument in turn.

A. Whether the City Exceeded its Statutory Authority in Contracting with the Vendor to Review the Red Light Camera Images

Jimenez argues that the City's red light camera program exceeds the authority granted by the Legislature with respect to the meaning of the word "review" as used in section 316.0083(1)(a). Specifically, Jimenez asserts that the word "review" as used in section 316.0083(1)(a) is limited to ensuring that the images from the red light camera are complete and usable, as opposed to the review conducted by the Vendor in this case, which, according to Jimenez, involves making a preliminary determination as to whether a traffic infraction has occurred. While Jimenez argues in favor of a narrow construction of the word "review," the City and the State maintain that the delegation of authority authorized by the Legislature in using the term "review" is broader and includes an evaluation of not only whether the images are complete and usable, but whether they meet certain guidelines, as provided by the City.

"In matters of statutory construction, we have repeatedly recognized that legislative intent is the polestar that guides the Court." Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., Inc. , 3 So.3d 1220, 1232 (Fla. 2009). "The plain meaning of the statute is always the starting point in statutory interpretation." GTC, Inc. v. Edgar , 967 So.2d 781, 785 (Fla. 2007). "[I]f the meaning of the statute is clear then this Court's task goes no further than applying the plain language of the statute." Id. "However, if the language is unclear or ambiguous, then the Court applies rules of statutory construction to discern legislative intent." Polite v. State , 973 So.2d 1107, 1111 (Fla. 2007). "In addition, examining the history of the legislation is a helpful tool in determining legislative intent." Raymond James Fin. Servs., Inc. v. Phillips , 126 So.3d 186, 192 (Fla. 2013).

The Legislature did not define, or otherwise elaborate upon, the word "review" in section 316.0083(1)(a). Although at times we turn to dictionary definitions to ascertain the plain meaning of a statutory term, see License Acquisitions, LLC v. Debary Real Estate Holdings, LLC , 155 So.3d 1137, 1144 (Fla. 2014), because "review" can mean something as broad as examining critically, or as narrow as viewing, the plain meaning of the word is not clear. See Merriam-Webster's Collegiate Dictionary 1067 (11th ed. 2005) (providing many definitions of "review," including "to view or see again," "to examine or study again," or "to go over or examine critically or deliberately"). Accordingly, "this Court should look to the [other] rules of statutory construction to help interpret legislative intent, which may include the examination of a statute's legislative history and the purpose behind its enactment." Edwards v. Thomas , 229 So.3d 277, 283 (Fla. 2017) (quoting W. Fla. Reg'l Med. Ctr. v. See , 79 So.3d 1, 9 (Fla. 2012) ).

Courts "cannot read a statutory subsection in isolation, 'but must read it within the context of the entire section in order to ascertain legislative intent for the provision.' " Larimore v. State , 2 So.3d 101, 114 (Fla. 2008) (quoting Fla. Dep't of Envtl. Protection v. ContractPoint Fla. Parks, LLC , 986 So.2d 1260, 1265 (Fla. 2008) ). Section 316.0083(1)(a), in its entirety, provides:

For purposes of administering this section, the department, a county, or a municipality may authorize a traffic infraction enforcement officer under s. 316.640 to issue a traffic citation for a violation of s. 316.074(1) or s. 316.075(1)(c)1. A notice of violation and a traffic citation may not be issued for failure to stop at a red light if the driver is making a right-hand turn in a careful and prudent manner at an intersection where right-hand turns are permissible. A notice of violation and a traffic citation may not be issued under this section if the driver of the vehicle came to a complete stop after crossing the stop line and before turning right if permissible at a red light, but failed to stop before crossing over the stop line or other point at which a stop is required. This paragraph does not prohibit a review of information from a traffic infraction detector by an authorized employee or agent of the department, a county, or a municipality before issuance of the traffic citation by the traffic infraction enforcement officer. This paragraph does not prohibit the department, a county, or a municipality from issuing notification as provided in paragraph (b) to the registered owner of the motor vehicle involved in the violation of s. 316.074(1) or s. 316.075(1)(c)1.

§ 316.0083(1)(a), Fla. Stat. (2014). Under the statute, the review contemplated is "of information from a traffic infraction detector," id. , which, as section 316.003(87) makes clear, consists of "photographic or electronic images or streaming video." Id. § 316.003(87).

Reading the provision in its entirety, we conclude that section 316.0083(1)(a) allows a local government's authorized agent to review images from red light cameras for any purpose short of making the probable cause determination to issue a traffic citation. By including two specific examples of what is not a traffic infraction immediately before stating that an authorized agent can review the information captured by red light cameras, which includes photographs and video, it is clear the Legislature contemplated that the agent would conduct an initial review of those photographs or video or both, before a traffic enforcement officer determines whether probable cause exists to issue a traffic citation. There is simply no indication that the Legislature intended the narrow definition of the word "review" advanced by Jimenez.

Jimenez makes two separate statutory arguments in support of his interpretation of the word "review," both of which we reject. First, Jimenez refers to an earlier version of the bill proposed during the bill drafting process in which a traffic citation could have been issued based on "a signed statement by a specifically trained technician employed by the agency or its contractor that, based on inspection of photographs or other recorded images," the driver of the vehicle committed a traffic infraction. Fla. HB No. 325, § 3 (filed Nov. 6, 2009) (proposed § 316.0083(1)(d) ). Even if we were to consider an earlier version of the bill proposed during the bill drafting process, we conclude that it would not help Jimenez because the enacted version retained the use of authorized agents but did not allow those agents to determine whether a citation should be issued. In other words, although the Legislature authorized local governments to delegate initial review responsibilities to an agent, the Legislature clearly intended that the ultimate authority to issue a citation would remain with a trained traffic enforcement officer. Thus, this argument does not support Jimenez's narrow interpretation of the word "review" in section 316.0083(1)(a).

Second, Jimenez notes that a single sentence in a legislative staff analysis of the Wandall Act references the existing statutory scheme for the enforcement of toll violations, which includes the use of cameras. See Fla. H.R. Policy Comm. on Roads, Bridges & Ports, HB 325 (2010) Staff Analysis 3 (Jan. 8, 2010) ("Cameras are permitted by current Florida law to enforce violations of payment of tolls.") (citing § 316.1001(2)(d), Fla. Stat. (2009) ). The toll violation statutory scheme authorized "a toll enforcement officer to issue" citations for toll violations and allowed toll operators to employ "independent contractors or designate employees as toll enforcement officers." § 316.1001(2)(a), Fla. Stat. (2009) ; id. § 316.640(1)(b)2.b. From that brief reference, Jimenez continues on his journey of statutory construction by pointing to a Florida Administrative Code rule that limited the toll enforcement officers or their designees to "review[ing] captured photographic images ... to ensure accuracy and data integrity." Fla. Admin Code R. 14-100.002(3). Jimenez asserts that this administrative rule's definition of the word "review," which is limited to ensuring accuracy, supports his interpretation of the word "review" in section 316.0083(1)(a). We disagree.

The reference to the toll violation statute in the staff analysis for the Wandall Act was one line in a comprehensive eleven-page analysis, which simply states that cameras are currently used to enforce tollbooth violations; the toll violation statutory scheme was not otherwise mentioned in the staff analysis. Further, the word "review" does not appear in the toll enforcement statute. Lastly, the administrative rule Jimenez cites does not even pertain to the statute at issue in this case. We thus conclude that this argument does not support Jimenez's narrow interpretation of the word "review" in section 316.0083(1)(a).

Ultimately, Jimenez cannot escape the fact that the term "review," as used in section 316.0083(1)(a), indicates some evaluative component, and there is no indication that the Legislature intended the most restrictive version of the term in the context of this statute. We therefore hold that section 316.0083(1)(a) authorizes a local government to contract with a private third-party vendor to review and sort information from red light cameras, in accordance with written guidelines provided by the local government, before sending that information to a trained traffic enforcement officer who determines whether probable cause exists and a citation should be issued.

In this case, the City provided the Vendor with written guidelines to use when reviewing and sorting the images before sending to a trained traffic enforcement officer who determines whether probable cause exists and a citation should be issued. Thus, the City's red light camera enforcement program does not exceed the authority granted in section 316.0083(1)(a). We now turn to address Jimenez's argument regarding uniformity.

B. Uniformity

Jimenez also argues that the City's adoption and use of its own set of standards, or guidelines, for determining whether a traffic infraction has occurred violates the uniformity principle set forth in chapter 316. See § 316.002, .007, Fla. Stat. (2014). Essentially, Jimenez complains that the City's red light camera enforcement program may be underinclusive because there is a possibility that other motorists may have committed a red light camera violation but did not receive a citation because, based on the City's guidelines, the images were sorted into the non-working queue.

The City explained that it often makes decisions regarding the enforcement of traffic infractions, including where to place red light cameras, as they are not placed at every intersection. Likewise, even without the use of red light cameras, traffic enforcement officers cannot be present at every intersection. As a result, there will inevitably be traffic infractions that go undetected and uncited.

Importantly, Jimenez makes no suggestion of discriminatory enforcement. Rather, he seems to assert that it would be fairer if the Vendor sent all usable images to the City for review. We disagree. This is no different than a traffic enforcement officer on the road stopping and citing one individual for exceeding the speed limit, while not citing others doing the same. Indeed, as Judge Wells cogently stated in her special concurrence in Jimenez :

The record in this case establishes that at most the servicing agent has been accorded only the ministerial authority to screen and cull those images which, pursuant to a rigid set of guidelines, clearly show no possible violation of the traffic laws; it is the traffic infraction officer alone who determines from the population of possible violators, those who will be subject to prosecution. This, in my opinion, is neither a violation of the law nor a matter about which those cited for a violation have authority to complain. Put another way, the real issue here is that some individuals who may have violated traffic regulations may be screened out of the process because the images of their vehicles were not sent to a traffic infraction enforcement officer to determine if a violation has occurred. This argument is no different than that made by an individual issued a speeding ticket who complains that other speeders also were not ticketed. In short, the fact that [the Vendor] determines certain images will not be forwarded-i.e., that some drivers will not be ticketed-because images taken of their vehicles show that they have not exceeded set guidelines, does not amount to determining whether those drivers who potentially exceed those guidelines have violated the law. That determination, as the record before us confirms, is left solely to traffic infraction enforcement officers.

211 So.3d at 173-74 (Wells J., specially concurring).

Based on the foregoing, we conclude that Jimenez's arguments that the City's red light camera enforcement program (A) unlawfully exceeds the grant of authority in section 316.0083(1)(a), and (B) violates the uniformity principle set forth in chapter 316, are without merit.

CONCLUSION

The Legislature has expressly authorized local governments to allow traffic enforcement officers to issue citations for traffic infractions captured by red light cameras. As part of this express authorization, the Legislature has permitted a local government's agent to review information from red light cameras for any purpose short of making the probable cause determination as to whether a traffic infraction was committed. We thus hold that section 316.0083(1)(a) authorizes a local government to contract with a private third-party vendor to review and sort information from red light cameras, in accordance with written guidelines provided by the local government, before sending that information to a trained traffic enforcement officer, who determines whether probable cause exists and a citation should be issued.

Accordingly, we answer the rephrased certified question in the affirmative and approve the decision of the Third District in Jimenez . We also approve the decision of the Second District in Trinh and disapprove the decision of the Fourth District in Arem to the extent it is inconsistent with this opinion.

It is so ordered.

LABARGA, C.J., and QUINCE, J., concur.

LEWIS, J., concurs in result.

CANADY, J., concurs specially with an opinion, in which POLSTON and LAWSON, JJ., concur.

CANADY, J., specially concurring.

I agree that the Third District's decision in State ex rel. City of Aventura v. Jimenez , 211 So.3d 158 (Fla. 3d DCA 2016), and the Second District's decision in City of Oldsmar v. Trinh , 210 So.3d 191 (Fla. 2d DCA 2016), should be approved, and that the Fourth District's decision in City of Hollywood v. Arem , 154 So.3d 359 (Fla. 4th DCA 2014), should be disapproved. I join in the majority's rejection of Jimenez's argument that is based on the uniformity requirement of section 316.007, Florida Statutes (2014).

I also agree that Jimenez's argument regarding the meaning of "review" in section 316.0083(1)(a), Florida Statutes (2014), is unavailing. Nothing in the text or context suggests that a narrow reading should be imposed on "review." The statute in no way precludes a local government from contracting with a third-party vendor to provide assistance in screening images from red light cameras in any way the local government sees fit other than authorizing the vendor to issue citations. On this point, the critical issue is not the details of the relationship between the local government and the vendor. Rather, the dispositive point is that the local government conforms to the requirement that only law enforcement officers and traffic infraction enforcement officers-rather than employees of a vendor-may issue traffic citations.

POLSTON and LAWSON, JJ., concur.

      The question that was certified by the Third District asks:
      Does the review of red light camera images authorized by section 316.0083(1)(a), Florida Statutes (2014), allow a municipality's vendor, as its agent, to sort images to forward to the law enforcement officer, where the controlling contract and City guidelines limit the Vendor to deciding whether the images contain certain easy-to-identify characteristics and where only the law enforcement officer makes the determinations whether probable cause exists and whether to issue a notice of violation and citation?
      Jimenez , 211 So.3d at 171.

      The Third District also ruled upon two other questions, which it certified to be of great public importance:
      Is it an illegal delegation of police power for the vendor to print and mail the notices and citation, through a totally automated process without human involvement, after the law enforcement officer makes the determinations that probable cause exists and to issue a notice of violation and citation?
      Does the fact that the citation data is electronically transmitted to the Clerk of the Court from the vendor's server via a totally automated process without human involvement violate section 316.650(3)(c), Florida Statutes (2014), when it is the law enforcement officer who affirmatively authorizes the transmission process?
      Id. at 171-72. We decline to address these questions and approve in full the Third District's analysis of these issues.

      Florida Rule of Appellate Procedure 9.030(b)(4) recognizes that district courts of appeal have discretionary jurisdiction to review "final orders of the county court ... that the county court has certified to be of great public importance."
      The questions certified by the county court vary slightly in wording but are substantively the same as those certified by the Third District to this Court. See Jimenez , 211 So.3d at 164, 171-72.

      This Court initially accepted jurisdiction in Trinh based on certified conflict with the Fourth District's decision in Arem . However, upon the City of Oldmar's suggestion of mootness, this Court dismissed the case after Trinh was acquitted of her red light camera citation on grounds unrelated to the legality of red light cameras.

      Jimenez also argues that the City's red light camera enforcement program is invalid because it is preempted by state law. We need not address this argument because it is dependent upon our agreement with Jimenez regarding the meaning of "review" in section 316.0083(1)(a).


source: Caselaw Access Project

author: PER CURIAM. CANADY, J., specially concurring.

license: Public Domain

text:
    Perry Alexander TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1501
    Supreme Court of Florida.
    [May 3, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll, Jr., David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and C. Suzanne Bechard, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Perry Alexander Taylor, a prisoner under a sentence of death, appeals an order denying his successive motion for postconvictfion relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the denial of relief.

FACTS AND RELEVANT PROCEDURAL HISTORY

The facts of this case were described on direct appeal as follows:

Taylor was charged with the murder and sexual battery of Geraldine Birch whose severely beaten body was found in a dugout at a little league baseball field.[ ] Shoe prints matching Taylor's shoes were found at the scene. Taylor confessed to killing Birch but claimed that the sexual contact was consensual and that the beating from which she died was done in a rage without premeditation. Taylor testified that on the night of the killing, he was standing with a small group of people when Birch walked up. She talked briefly with others in the group and then all but Taylor and a friend walked off. Taylor testified that as he began to walk away, Birch called to him and told him she was trying to get to Sulphur Springs. He told her he did not have a car. She then offered sex in exchange for cocaine and money. Taylor agreed to give her ten dollars in exchange for sex, and the two of them went to the dugout.
Taylor testified that when he and Birch reached the dugout they attempted to have vaginal intercourse for less than a minute. She ended the attempt at intercourse and began performing oral sex on him. According to Taylor, he complained that her teeth were irritating him and attempted to pull away. She bit down on his penis. He choked her in an attempt to get her to release him. After he succeeded in getting her to release her bite, he struck and kicked her several times in anger.

Taylor v. State (Taylor I ), 583 So.2d 323, 325 (Fla. 1991) (footnote omitted). During the trial, Dr. Lee Miller, the associate medical examiner of Hillsborough County, testified that Birch died of massive blunt force injuries to the head, neck, chest, and abdomen. Dr. Miller offered the following testimony with respect to Birch's genital injuries :

STATE: Do you have an opinion within a reasonable degree of medical probability as to what caused the injuries to the interior of the vagina ... ?
DR. MILLER: Yes.
STATE: What would be that opinion?
DR. MILLER: Something was inserted into the vagina which stretched the vagina enough for it to tear over the object that was inserted in there.
STATE: Do you have an opinion within a reasonable degree of medical probability that object could have been a hand?
DR. MILLER: Yes.
STATE: Could it have been some other type of object other than a penis?
DR. MILLER: Yes.
STATE: Is it your opinion within a reasonable degree of medical probability that a penis inserted into the vagina could have caused the injuries you just described?
DR. MILLER: No.

Dr. Miller later testified:

STATE: The injury you observed to the exterior of the vagina, within a reasonable degree of medical probability is that consistent with having been inflicted by someone kicking her to that area?
DR. MILLER: No.
STATE: The injuries you observed to the interior of the vagina, are those injuries within a reasonable degree of medical probability consistent with having been inflicted by someone kicking her in that area?
DR. MILLER: No.
STATE: Within a reasonable degree of medical probability would penetration have been necessary to inflict the injuries to the interior of the vagina?
DR. MILLER: Yes.

(Emphasis added.)

The jury convicted Taylor of both first-degree murder and sexual battery with great force. The jury recommended death by a vote of twelve to zero, and the trial court sentenced Taylor to death. Taylor I , 583 So.2d at 325. On direct appeal, this Court affirmed Taylor's convictions, but reversed the death sentence and remanded for a new penalty phase. Id. at 330. Of relevance to this case was Taylor's guilt-phase challenge to the trial court's denial of his motion for judgment of acquittal with respect to the charge of felony murder. Id. at 328. Taylor argued the evidence was legally insufficient to prove lack of consent with respect to the charge of sexual battery. Id. In rejecting this claim, we stated:

[E]ven accepting Taylor's assertion that the victim initially agreed to have sex with him, the medical examiner's testimony contradicted Taylor's version of what happened in the dugout. According to Taylor, he had vaginal intercourse with the victim for less than a minute without full penetration. He testified that she then indicated that she did not want to have intercourse and began performing oral sex on him. The medical examiner testified that the extensive injuries to the interior and exterior of the victim's vagina were caused by a hand or object other than a penis inserted into the vagina. Given the evidence conflicting with Taylor's version of events, the jury reasonably could have rejected his testimony as untruthful.

Id. at 329. After a second penalty phase, the jury recommended a sentence of death by a vote of eight to four, and the trial court followed that recommendation. Taylor v. State (Taylor II ), 638 So.2d 30, 31-32 (Fla.), cert. denied , 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 424 (1994). On appeal, we rejected all of Taylor's claims and affirmed the sentence of death. Id. at 33.

In his initial motion for postconviction relief, Taylor raised twenty-one claims, all of which were denied. See Taylor v. State (Taylor III ), 3 So.3d 986, 991 & n.1 (Fla. 2009). This Court affirmed the denial of postconviction relief and also denied Taylor's petition for writ of habeas corpus. Id. at 1000. Of relevance to this case was Taylor's claim that Dr. Miller had recanted his trial testimony with respect to Birch's genital injuries. Id. at 992. This Court described the testimony offered during the evidentiary hearing as follows:

Dr. Miller testified that the injuries sustained were mostly confined to the labia minora and radiated inward, while some were inside the labia minora in "what anyone would describe as the vaginal canal." However, Dr. Miller further testified that the injuries could possibly have been the result of a kick if the blow had been struck where the toe of the shoe actually went into the vagina, stretching it, that any shoe would have been able to penetrate the victim's vagina due to extraversion, but that ultimately the injuries were caused by stretching and not direct impact. Miller testified that the possibility of a kick causing the injury was "a one in a million shot" and that his opinions as expressed at trial had not changed. He attributed any differences in his testimony to differences in the questions being asked and, in some instances more elaboration in exploring possibilities.

Id. (emphasis added). The actual dialogue from the evidentiary hearing was:

DR. MILLER: [Defense postconviction expert] Dr. Wright said that the injuries to the inside of the vagina were sustained-probably sustained by a kick or a blow. Whereas, I had said they were sustained by a stretch injury. When he went on to say-to talk about that, he said, well, the blow would have had to have been with the toe of the shoe actually going directly into the vagina which would produce a stretch injury as well, as well as something being gently inserted in there. And I agree with that. I agree that if a blow had been struck where the toe of the shoe actually went, went into the vagina stretching the vagina it would have introduced the injuries that I've described.
So it would be sort of like inserting an object. Although we certainly didn't-I did not describe originally the inserting of an object and the attorneys didn't bring it out that it could have been a hard blow from a shoe going directly in. That didn't come up and it certainly seems a reasonable possibility, maybe even a probability, in reading Dr. Wright's testimony.
DEFENSE: So your testimony today would be that the injury to the ten radial lacerations in the labia minora to a reasonable degree of medical probability are the result of a kick?
DR. MILLER: I'm saying that they could have been the result of a kick. One of many scenarios where something went in there that was wider than the vagina and stretched it. We talked about kicks and blows earlier on. But the subject of the shoe or the foot actually entering the vaginal canal didn't come up. That was-it's a one-in-a-million shot.
DEFENSE: What do you mean a one-in-a-million shot?
DR. MILLER: Well, it's you can kick somebody an awful lot in that area and not have your toe actually go up into that narrow vaginal canal.

(Emphasis added.) During cross-examination, Dr. Miller stated his opinion had not changed that Birch's internal genital injuries were caused by penetration by an object "large enough to stretch enough to produce those tears," but he did not know what the object was.

The postconviction court found that Taylor's assertion of a "supposed recantation" by Dr. Miller of his trial testimony was "not an accurate statement of [Dr. Miller's] testimony" and, therefore, Taylor had not demonstrated the existence of newly discovered evidence of innocence of sexual battery. Taylor III , 3 So.3d at 993 (alteration in original). In affirming the denial of this claim, we stated:

In essence, the postconviction court concluded that, at trial, Dr. Miller testified that the lacerations were not, within reasonable medical probability, caused by a kick. Similarly, at the evidentiary hearing, Dr. Miller testified that it was his opinion that there was only a one-in-a-million chance that the lacerations could have been caused by a kick. Hence, because the record refutes Taylor's contrary interpretation of the testimony, Taylor fails to show that Miller's postconviction testimony qualifies as newly discovered evidence. While it is true that Miller's trial testimony did not admit to this one-in-a-million possibility, we find this omission insufficient to overturn the trial court's conclusion that sufficient "new evidence" had not been established.

Id. at 993 (emphasis added). We also rejected Taylor's Brady / Giglio claims. 3 So.3d at 994-95. Because Dr. Miller's testimony did not materially change, we affirmed the postconviction court's determination that false testimony was not presented during Taylor's trial, id. at 994, and "there is nothing the State has been demonstrated to have suppressed." Id. at 995. Additionally, we determined that trial counsel was not ineffective for failing to elicit Dr. Miller's "one-in-a-million" testimony. Id. at 996.

Thereafter, Taylor filed a petition for writ of habeas corpus with the United States District Court for the Middle District of Florida, which was denied. Taylor v. Sec'y, Fla. Dept. of Corr. (Taylor IV ), No. 8:10-cv-382-T-30AEP, 2011 WL 2160341, at *65 (M.D. Fla. June 1, 2011). In addition to other claims, Taylor contended that as a result of Brady and Giglio violations, as well as ineffective assistance of counsel, he was wrongfully convicted of sexual battery. Id. at *19. According to Taylor, because of this error, he was wrongfully convicted of felony murder, and the trial court erroneously found the aggravating factor that the murder was committed during a sexual battery. Id. As part of this claim, Taylor contended that Dr. Miller recanted his trial testimony that Birch's genital injuries were inconsistent with being inflicted by a kick. Id. at *20. The federal district court comprehensively discussed both Taylor's arguments and Dr. Miller's testimony during the initial trial, the penalty phase retrial, and the postconviction evidentiary hearing. Id. at *26-27. It concluded that Dr. Miller did not recant his trial testimony, no evidence was suppressed by the State, and no false testimony was given. Id. at *27-28. In concluding that Dr. Miller's postconviction testimony had not changed from his trial testimony, the federal district court explained:

Dr. Miller did not testify at the evidentiary hearing that it was his opinion within a reasonable degree of medical probability that the injuries to the victim's genital area were caused by a kick. Instead, he stated that the injuries possibly could have been caused by a kick if the shoe had actually entered the vaginal canal, which he stated was "a one-in-a-million shot." That testimony is not inconsistent with his trial testimony that within a reasonable degree of medical probability the interior injuries were caused by something inserted into the vagina, and that those injuries were not consistent with having been inflicted by someone kicking the victim in that area.

Id. at *27 (emphasis added).

The federal district court again referenced Dr. Miller's "one-in-a-million shot" testimony when it concluded that Taylor had failed to satisfy the prejudice prong of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where Taylor claimed trial counsel was ineffective for failing to retain an independent pathologist to assist the defense:

[T]o satisfy the prejudice prong under Strickland , Taylor must establish that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 466 U.S. at 694, 104 S.Ct. 2052. At the post-conviction hearing, Dr. Miller admitted that it was possible that the injuries to the victim's genital area were caused by a kick if the toe of the shoe penetrated the victim's vaginal area. He stated, however, that such a kick would be a "one[-]in-a-million shot." [State postconviction expert] Dr. Lynch's [sic] testified at the evidentiary hearing that penetration caused the injuries to the victim's vagina, and that she did not believe a kick could have caused the injuries unless the foot was able to fit into the vagina. She testified that it was unlikely that Taylor's shoes would have been able to fit into the victim's vagina. Thus, her testimony supported Dr. Miller's opinion. In light of Dr. Miller and Dr. Lynch's testimony during the post-conviction hearings regarding the cause of the injuries to the victim's genital area, Taylor has not established a reasonable probability that had counsel obtained a forensic pathologist to testify at trial, the result of the trial would have been different.

Taylor IV , 2011 WL 2160341, at *34 (emphasis added).

On July 14, 2016, Taylor filed a successive motion for postconviction relief, which is the subject of the present case. Attached to the motion was an affidavit signed by Dr. Miller (the Miller affidavit) in which he stated:

On June 7, 2004, I testified at Mr. Taylor's postconviction evidentiary hearing. I expressed my opinion that it was reasonably possible, perhaps probable, that the internal genital injuries were caused by the penetration of the toe of a shoe. I commented that this was a one-in-a-million shot.
This was an unfortunate choice of words and I regret it. A "one in a million" shot implies near impossibility and in this case this is not true. I can only reiterate my previous testimony that Dr. Wright's interpretation of these injuries having been caused by a kick and not by an object having been deliberately inserted into the vagina is a very reasonable possibility.

In his motion, Taylor contended that the alleged misinterpretation of Dr. Miller's "one-in-a-million shot" comment led the postconviction court and subsequent courts to reject any claim that Dr. Miller's opinion had changed, and that the evidence of sexual battery had been negated. Taylor stated that the Miller affidavit was not previously available because Dr. Miller "was not aware of the incorrect interpretation of his testimony and therefore was unaware of the need to come forward to correct the errors." Taylor asserted that he was unable to contact Dr. Miller until June 2015.

Taylor presented the following claims in his successive motion: (1) the Miller affidavit is newly discovered evidence that undermines the courts' rejection of Dr. Miller's postconviction testimony that Birch's injuries were caused by a kick; (2) the Miller affidavit demonstrates that trial counsel was ineffective for failing to elicit testimony from Dr. Miller that a likely cause of Birch's internal genital injuries was a kick, and for failing to retain a forensic pathologist who could make the correct determination of causation; (3) the State violated Brady and Giglio by failing to notify the defense that Dr. Miller believed Birch's internal genital injuries supported a theory of innocence of sexual battery; and (4) Taylor's death sentence violates Hurst v. Florida (Hurst v. Florida ), 136 S.Ct. 616 (2016).

On October 7, 2016, the postconviction court summarily denied claims one through three. The court reserved ruling on claim four on the basis that this Court's determination of the retroactivity of Hurst v. Florida was critical to resolution of the claim. On February 8, 2017, the postconviction court granted Taylor's motion to amend claim four to add claims based upon Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

Taylor filed a witness/exhibit list, naming as a witness Dr. Harvey Moore, Ph.D. The exhibit list included a content analysis evaluation conducted by Dr. Moore which concluded that "[b]ased on the socio-legal standard established in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) we may conclude to a reasonable degree of sociological certainty the jury which recommended a sentence of death for Mr. Taylor in [ Taylor II ] was persuaded against the requisite level of attention to its responsibility through comments made by the court and prosecutor, and repeated by fellow members of the venire." Taylor intended to present Dr. Moore and introduce the exhibits "to lend evidentiary support for arguments against the current June 24, 2002 Hurst cutoff date,[ ] and in support of retroactivity under the fundamental fairness doctrine." The State filed a motion to strike Dr. Moore as a witness and the exhibits. On June 12, 2017, the postconviction court granted the State's motion and summarily denied amended claim four of Taylor's successive motion.

This appeal follows.

ANALYSIS

Newly Discovered Evidence

Taylor first asserts that the Miller affidavit constitutes newly discovered evidence of his innocence of sexual battery because it demonstrates that the cause of Birch's internal genital injuries was a kick. He argues that because of Dr. Miller's "one-in-a-million shot" comment during the postconviction evidentiary hearing, the state courts have refused to recognize that Dr. Miller's opinion has changed, and the federal district court endorsed the state courts' refusal to recognize the shift in opinion. This claim is both untimely and without merit.

With respect to timeliness, Florida Rule of Criminal Procedure 3.851 provides that a motion for postconviction relief must be filed within one year after the judgment and sentence become final unless "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence." Fla. R. Crim. P. 3.851(d)(2)(A). The first alleged misinterpretation of Dr. Miller's testimony occurred on February 1, 2006, when the postconviction court stated in its denial order, "Dr. Miller concluded that the chances of the victim's vaginal injuries coming from a kick were kind of a one-in-a-million shot." Counsel for Taylor would have been aware of this statement at that time, and accordingly, any challenge based upon the postconviction court's interpretation of Dr. Miller's testimony was required to have been filed within one year of that date. Because more than ten years elapsed between this statement by the postconviction court and the filing of the successive motion on July 14, 2016, Taylor's motion is untimely. Further, even though this Court in 2009 and the federal district court in 2011 later stated that the chance that Birch's internal genital injuries were caused by a kick was "one in a million," Taylor III , 3 So.3d at 993, 996 ; Taylor IV , 2011 WL 2160341, at *27, *34, these repetitions of Dr. Miller's testimony do not commence a new one-year period for filing a successive motion.

With regard to the merits of Taylor's claim, the Miller affidavit does not constitute newly discovered evidence because nothing in the affidavit is materially different from Dr. Miller's postconviction evidentiary hearing testimony. During the hearing, Dr. Miller testified that Birch's internal genital injuries were caused by penetration. He further testified that if, as the result of a kick, the toe of a shoe entered the vaginal canal, stretch injuries consistent with those sustained by Birch could result. However, Dr. Miller also stated that the likelihood of a kick hitting the genital area where it would enter the vaginal canal was a "one-in-a-million shot." Taylor's postconviction counsel sought clarification of this precise statement, to which Dr. Miller replied, "Well, it's you can kick somebody an awful lot in that area and not have your toe actually go up into that narrow vaginal canal." Although the Miller affidavit reflects that Dr. Miller now regrets his choice of words, this does not change the fact that Dr. Miller believed the likelihood of the toe of a shoe entering the vaginal canal as the result of a kick was very slim. Therefore, the chance that the internal genital injuries were caused by a kick remains slim.

Stated differently, if-against significant odds-the toe of Taylor's shoe did penetrate Birch's vagina, then Dr. Miller agreed with Dr. Wright that it is possible, maybe even probable, that her internal genital injuries were caused by a kick. However, based upon Dr. Miller's testimony, the chance of the shoe making contact in such a way was so unlikely, it was-to use Dr. Miller's exact words-a "one-in-a-million shot." The fact that Dr. Miller could have, and if given another opportunity would have, phrased his observation differently does not alter the conclusion reached by the postconviction court and this Court that the chance Birch's internal genital injuries were caused by a kick was "one in a million" because this was the phrasing Dr. Miller used to convey the unlikely odds. Further, this is not inconsistent with the Miller affidavit, which states:

I can only reiterate my previous testimony that Dr. Wright's interpretation of these injuries having been caused by a kick and not by an object having been deliberately inserted into the vagina is a very reasonable possibility.

Nor is it inconsistent with Dr. Miller's trial testimony that Birch's internal genital injuries, within a reasonable degree of medical probability, (1) could have been caused by a hand or other object, (2) were not consistent with her having been kicked in that area, and (3) were the result of penetration. Based upon the foregoing, the Miller affidavit is not newly discovered evidence.

Ineffective Assistance of Trial Counsel

Taylor next asserts that trial counsel was ineffective for failing to elicit testimony from Dr. Miller that a likely cause of Birch's injuries was a kick, and for failing to retain a forensic expert to make the correct determination of causation. Because the Miller affidavit does not constitute newly discovered evidence, these claims are both successive and without merit. The same claims were raised in both Taylor III and Taylor IV and were rejected. See 3 So.3d at 996 ; 2011 WL 2160341, at *32-34.

Hurst-Related Claims

Taylor raises a number of challenges to his death sentence based upon Hurst v. Florida and Hurst . Most of these arguments were rejected in Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), and do not warrant discussion. To the extent Taylor challenges the postconviction court's refusal to permit Dr. Moore to testify with respect to the content analysis he conducted, this challenge turns on whether Hurst should be made retroactive to the date of the decision in Caldwell . However, in Hitchcock , we explained that Hurst does not apply retroactively to death sentences that became final prior to the issuance of Ring based upon our earlier decision in Asay v. State , 210 So.3d 1 (Fla. 2016). See Hitchcock , 226 So.3d at 217. Because Taylor's sentence became final in 1994, Hurst does not apply to him, and we decline to extend the retroactivity of Hurst to the date of Caldwell . Moreover, in Reynolds v. State , --- So.3d ----, ----, 43 Fla. L. Weekly S163, S167 (Fla. Apr. 5, 2018) (plurality opinion), we concluded that pre- Ring Hurst -induced Caldwell challenges are without merit.

Finally, in Asay v. State , 224 So.3d 695, 703 (Fla. 2017), and Lambrix v. State , 227 So.3d 112, 113 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 312, 199 L.Ed.2d 202 (2017), we rejected as without merit the claim that chapter 2017-1, Laws of Florida, created a substantive right that must be retroactively applied. Accordingly, the postconviction court did not abuse its discretion when it denied Taylor's second request to amend his successive motion to add this claim.

CONCLUSION

Based upon the foregoing, we affirm the summary denial of Taylor's successive motion for postconviction relief.

It is so ordered.

LABARGA, C.J., and LAWSON, J., concur.

CANADY, J., concurs specially with an opinion, in which POLSTON, J., concurs.

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

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

QUINCE, J., recused.

CANADY, J., specially concurring.

I concur in the denial of Taylor's newly discovered evidence claim and ineffective assistance of trial counsel claims. I also agree that Taylor is not entitled to postconviction relief on his 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) -related claims and that the successive motion for postconviction relief should therefore be denied. But I would not rely on Hurst v. State and its progeny. Instead, I would deny the Hurst -related claims on two grounds. First, no Hurst v. Florida error occurred in this case because the aggravating factor that the capital felony occurred during the commission of a sexual battery was established by the sexual battery conviction. See Hurst v. State , 202 So.3d at 77-83 (Canady, J., dissenting). Second, in any event Hurst v. Florida should not be given retroactive application. See Mosley v. State , 209 So.3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part).

POLSTON, J., concurs.

PARIENTE, J., concurring in result.

Taylor was sentenced to death based on a jury's nonunanimous recommendation for death by a vote of eight to four. Taylor v. State , 638 So.2d 30, 31 (Fla. 1994). To not apply Hurst in Taylor's case results in Taylor being sentenced to death under an unconstitutional sentencing scheme. As I explained in Asay V :

I conclude that Hurst should apply to all defendants who were sentenced to death under Florida's prior, unconstitutional capital sentencing scheme. The majority's [retroactivity] conclusion results in an unintended arbitrariness as to who receives relief depending on when the defendant was sentenced or, in some cases, resentenced. For example, many defendants whose crimes were committed before 2002 will receive the benefit of Hurst because they were previously granted a resentencing on other grounds and their newest death sentence was not final when Ring was decided. To avoid such arbitrariness and to ensure uniformity and fundamental fairness in Florida's capital sentencing, our opinion in Hurst should be applied retroactively to all death sentences.

210 So.3d at 36 (Pariente, J., concurring in part and dissenting in part) (footnote omitted).

I also note that on direct appeal in 1993, Taylor, like other defendants sentenced to death before Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), argued that Florida's capital sentencing statute was unconstitutional, stating:

To the extent that Florida's death penalty scheme allows a death recommendation, which has a crucial and often dispositive impact on the resulting death sentence, to be returned by a bare majority vote of the jury, it violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Not only does the Florida procedure fail to require jury unanimity ... to return a death recommendation; it also fails to require unanimous ... agreement as to whether a particular aggravating circumstance has been proven beyond a reasonable doubt, or even as to whether any aggravating circumstance has been proven beyond a reasonable doubt. The United States Supreme Court has repeatedly recognized that the Eighth and Fourteenth Amendments require a heightened degree of reliability when a death sentence is imposed. Florida's capital sentencing scheme ... works in the opposite direction.

Initial Br. of Appellant, Taylor v. State , No. 80,121 (Fla. July 6, 1993), at 33-34 (footnote omitted) (citations omitted). Of course, we have now determined that the United States and Florida Constitutions require that these precise findings be made by a unanimous jury before a death sentence can be imposed. Hurst , 202 So.3d at 44. As I stated in Hurst : "If 'death is different,' as this Court and the United States Supreme Court have repeatedly pronounced, then requiring unanimity in the jury's final recommendation of life or death is an essential prerequisite to the continued constitutionality of the death penalty in this State." 202 So.3d at 70 (Pariente, J., concurring) (footnote omitted) (quoting Yacob v. State , 136 So.3d 539, 546 (Fla. 2014) ).

Applying Hurst in this case, I would grant Taylor a new penalty phase based on the jury's nonunanimous recommendation for death. See Mosley v. State , 209 So.3d 1248, 1284 (Fla. 2016) ; see also Reynolds v. State , --- So.3d ----, ----, 43 Fla. L. Weekly S163, S169-71 (Fla. Apr. 5, 2018) (Pariente, J., dissenting). Nevertheless, recognizing that I am bound by this Court's opinions in Asay V and Hitchcock, which are final, I concur in result.

LEWIS, J., concurring in result.

I have repeatedly expressed my disagreement with this Court's Hurst retroactivity determinations, and I do so again today. I recognize that the majority simply applies prior precedent but I again urge that we follow proper legal theory. I believe that defendants who properly preserved the substance of a Ring challenge at trial and on direct appeal prior to that principle of law having a case name should also be entitled to have their constitutional challenges heard. Today the Court again looks the other way and denies relief to a pre- Ring defendant who raised-and thus preserved-a substantive Ring claim before it was so named. See Taylor v. State , 638 So.2d 30, 33 n.4 (Fla. 1994). For this reason, I dissent as to the Hurst retroactivity issue.

Preservation is perhaps the most basic tenet of appellate review, see Steinhorst v. State , 412 So.2d 332, 338 (Fla. 1982) ; and this Court should be particularly cognizant of preservation issues for capital defendants. Accordingly, the fact that some defendants specifically cited the name Ring while others did not is not dispositive, in my view. Rather, the proper inquiry centers on whether a defendant preserved his or her substantive constitutional claim to which and for which Hurst applies. This preservation approach-enshrined in James v. State , 615 So.2d 668 (Fla. 1993) -ameliorates some of the majority's concern with the effect on the administration of justice. Defendants who did not properly preserve their constitutional challenges-through trial and direct appeal-forfeited them just as any other defendant who fails to raise and preserve a claim. However, those defendants who, like Taylor, challenged Florida's unconstitutional sentencing scheme based on the substantive matters addressed in Hurst are entitled to consideration of that constitutional challenge.

Jurists have echoed this type of approach as a remedy to the more exacting federal Teague standard. Federal courts have employed a similar preservation approach, and it is "one of the dominant means by which federal courts limit the disruptive effects of legal change in the context of direct review of federal criminal convictions." Regardless of the limited federal approach, scholars urge state courts to pull retroactivity off Teague 's constitutional floor, which the United States Supreme Court expressly permitted in Danforth v. Minnesota , 552 U.S. 264, 280, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).

This Court's adoption of the Stovall / Linkletter standard was intended to provide "more expansive retroactivity standards" than those of Teague . Johnson v. State , 904 So.2d 400, 409 (Fla. 2005). However, the Court's retroactivity decision post- Hurst eschews that intention. Further, it illuminates Justice Harlan's famous critique of Linkletter :

Simply fishing one case from the stream of appellate review ... and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from this model of judicial review.

Williams v. United States , 401 U.S. 646, 679, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (Harlan, J., concurring in part and dissenting in part). However, that is how the majority of this Court draws its determinative, albeit arbitrary, line. As a result, Florida will treat similarly situated defendants differently-here, the difference between life and death-for potentially the simple reason of one defendant's docket delay. Vindication of these constitutional rights cannot be reduced to either fatal or fortuitous accidents of timing.

Every pre- Ring defendant has been found by a jury to have wrongfully murdered his or her victim. There may be defendants that properly preserved challenges to their unconstitutional sentences through trial and direct appeal, but this Court nonetheless chooses to limit the application of Hurst , which may result in the State wrongfully executing those defendants. It seems axiomatic that "two wrongs don't make a right"; yet this Court essentially condones that outcome with its very limited interpretation of Hurst 's retroactivity and application.

For the reasons discussed above, I continue to respectfully dissent on the Hurst issue.

      Taylor was charged with both premeditated murder and felony murder with the underlying felony of sexual battery. Taylor v. State , 583 So.2d 323, 328 (Fla. 1991).

      We also concluded that the trial court did not err in denying the motion for judgment of acquittal on the charge of premeditated murder:
      [T]he jury reasonably could have rejected as untruthful Taylor's testimony that he beat the victim in a rage after she injured him. Although Taylor claimed that the victim bit his penis, an examination did not reveal injuries consistent with a bite. According to Taylor, even after he sufficiently incapacitated the victim by choking her so that she released her bite on him, he continued to beat and kick her. The medical examiner testified that the victim sustained a minimum of ten massive blows to her head, neck, chest, and abdomen. Virtually all of her internal organs were damaged. Her brain was bleeding. Her larynx was fractured. Her heart was torn. Her liver was reduced to pulp. Her kidneys and intestines were torn from their attachments. Her lungs were bruised and torn. Nearly all of the ribs on both sides were broken. Her spleen was torn. She had a bite mark on her arm and patches of her hair were torn off. Her face, chest, and stomach were scraped and bruised. Although Taylor denied dragging the victim, evidence showed that she had been dragged from one end of the dugout to the other. The evidence was sufficient to submit the question of premeditation to the jury.
      Taylor I , 583 So.2d at 329.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      However, the postconviction court denied a second motion to amend to add a fifth claim that the enactment of chapter 2017-1, Laws of Florida, which precludes imposition of the death penalty unless the jury unanimously recommends death, created a substantive right that must be retroactively applied.

      June 24, 2002, is the date the United States Supreme Court decided Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Asay v. State , 210 So.3d 1, 22 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017), we held that Hurst does not apply retroactively to defendants whose death sentences became final prior to the issuance of Ring .

      The requirement of Hurst v. Florida that the jury find an aggravator was also satisfied by the existence of the prior violent felony aggravator, which was established by Taylor's conviction "for sexual battery in 1982." See Taylor v. State , 3 So.3d 986, 999 (Fla. 2009).

      Hurst v. State , 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).

      Asay v. State (Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017) ; see Hitchcock v. State , 226 So.3d 216, 220-23 (Fla.) (Pariente, J., dissenting), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).

      See, e.g. , Gaskin v. State , 218 So.3d 399, 401-05 (Fla.) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 471, 199 L.Ed.2d 362 (2017).

      See State v. Silvia , 235 So.3d 349, 352, 356-57 (Fla. 2018) (Lewis, J., dissenting); Hitchcock v. State , 226 So.3d 216, 218-20 (Fla.) (Lewis, J., concurring in result), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State , 210 So.3d 1, 30-31 (Fla. 2016) (Lewis, J., concurring in result), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017).

      Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      See L. Anita Richardson & Leonard B. Mandell, Fairness Over Fortuity: Retroactivity Revisited and Revised , 1989 Utah L. Rev. 11, 56-57 (1989).

      Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

      Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996 , 25 Am. J. Crim. L. 203, 232 (1998).

      Toby J. Heytens, Managing Transitional Moments in Criminal Cases , 115 Yale L.J. 922, 942 (2006).

      Christopher N. Lasch, The Future of Teague Retroactivity, or "Redressability," After Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings , 46 Am. Crim. L. Rev. 1, 51-54 (2009).

      Stovall v. Denno , 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      Linkletter v. Walker , 381 U.S. 618, 636, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

      See generally Christopher M. Smith, Note, Schriro v. Summerlin: A Fatal Accident of Timing , 54 DePaul L. Rev. 1325 (2005).


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

text:
    Dante Rashad MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-2271
    Supreme Court of Florida.
    [May 10, 2018]
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, John Klawikofsky, Bureau Chief, and Wendy Buffington, Assistant Attorney General, Tampa, Florida, for Respondent
   PER CURIAM.

Dante Rashad Morris, who was fifteen years old at the time of his crimes, challenges his concurrent sentences of thirty years' imprisonment and fifteen years' imprisonment for the crimes of attempted felony murder and attempted armed robbery, respectively. See Morris v. State , 206 So.3d 154, 154 (Fla. 2d DCA 2016). Although Morris committed his crimes in 2012, before the enactment of chapter 2014-220, Laws of Florida, he was sentenced in 2014, after the statute was enacted. However, by its own terms, chapter 2014-220 does not apply to Morris.

§ 921.1402(1) Fla. Stat. (2014).

On November 24, 2012, fifteen-year-old Dante Rashad Morris and five other teenaged boys attempted to rob a vendor at a farmer's market. During the attempt, one of the boys shot the vendor. A jury found that Morris possessed a weapon during the commission of the robbery, but concluded that he did not fire the weapon. Morris was convicted of one count of attempted felony murder and one count of attempted armed robbery.

At the sentencing hearing, where Morris sought a downward departure and youthful offender sentence, the court weighed several factors that the 2014 amendments to section 921.1401, Florida Statutes, now require, including the gravity of the offense and its impact on the victim's health and livelihood, Morris's home life and failure to cooperate with his mother, Morris's continuous gang involvement and the peer pressure placed upon him, evidence of Morris's mental health and learning disabilities, Morris's lack of a prior record, and Morris's age and lack of criminal history. The court ultimately sentenced Morris as an adult, imposing a thirty-year sentence for the attempted felony murder and a concurrent fifteen-year sentence for the attempted armed robbery. His sentence does not provide for judicial review. Thereafter, Morris filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b). Morris , 206 So.3d at 154.

The State concedes that Morris is entitled to judicial review of his sentence, stating "if it is unclear that the new statute applied to Morris who was sentenced after its effective date for crimes committed before that date, this case should be remanded solely for the ministerial correction of his sentence to add the 20-year review provision." Answer Br. of State, Morris v. State , No. SC16-2271, at 9. Because the sentencing court did not make the required findings at Morris's sentencing hearing to comport with chapter 2014-220, Laws of Florida, and Morris's sentence lacks any review mechanism, based upon this Court's precedent, Morris is entitled to resentencing. See Lee v. State , 234 So.3d 562, 564 (Fla. 2018) ("Lee's sentence does not provide him an opportunity to obtain early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term. Accordingly, Lee is entitled to resentencing under the juvenile sentencing provisions in chapter 2014-220."); see also Johnson v. State , 215 So.3d 1237, 1243 (Fla. 2017) ("Post- Henry , we must ensure that a juvenile nonhomicide offender does not receive a sentence that provides for release only at the end of a sentence ....").

It is so ordered.

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

LEWIS, J., concurs in result.

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

LAWSON, J., dissenting.

In order for a juvenile nonhomicide offender to be entitled to resentencing pursuant to Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the offender's sentence must not afford the offender a meaningful opportunity for release from incarceration during his or her lifetime. Henry v. State , 175 So.3d 675, 679-80 (Fla. 2015). Although this Court in Kelsey v. State , 206 So.3d 5, 11 (Fla. 2016), seems to have held that Graham requires resentencing for all "juvenile offenders who are sentenced to terms longer than twenty years," I agree with Justices Lewis, Canady, and Polston that Graham cannot be read as requiring the resentencing of a juvenile nonhomicide offender unless that offender was sentenced to life, or the functional equivalent of life, without an opportunity for early release. Kelsey , 206 So.3d at 14 (Polston, J., dissenting). Because Morris's sentences in this case are not unconstitutional under Graham , as the Second District held below, I would approve the Second District's decision and recede from Kelsey to the extent that it requires resentencing of juvenile nonhomicide offenders who were not sentenced to life or its equivalent. I would also recede from Lee v. State , 234 So.3d 562, 563-64 (Fla. 2018), and the statement quoted from Johnson v. State , 215 So.3d 1237 (Fla. 2017), which are cited by the majority as the basis for its decision, but which simply applied the erroneous rule announced in Kelsey .

CANADY and POLSTON, JJ., concur.

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