author: SHEPHERD, J.

text:
    Rene AVILA and Edgar Perez, Appellants, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D08-1380.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.

      Teri Guttman Valdes, Coral Gables, for appellants.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Lee Kraftchick, Assistant County Attorney, for appellee.
    Before GERSTEN and SHEPHERD, JJ, and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal from a final order on a complaint for preliminary and permanent injunction. Upon review of the matter and being unable to improve upon the well-reasoned opinion of the trial court, we adopt the opinion of the trial court as our own en haec verba:

FINAL ORDER ON COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTION
This matter came before the Court on February 8, 11 and 14, 2008, for a final bearing on the Plaintiffs’ complaint for preliminary and permanent injunction to prevent the Defendant, Miami-Dade County, from terminating or otherwise disciplining the Plaintiffs, Rene Avila and Edgar Perez, from their positions as Miami-Dade Police officers. The Court, having conducted trial on an expedited basis, considered the parties’ evidence and arguments, and being otherwise duly advised, makes the following findings and reaches the following conclusions.
STATEMENT OF THE CASE AND FACTS
The Plaintiffs are presently employed by Miami-Dade County as police officers. An internal affairs investigation has concluded that they repeatedly violated Police Department rules by failing to respond to emergency calls, falsifying their worksheets and otherwise failing to perform their duties as police officers. The Police Department has notified the Plaintiffs that it is considering discharging them.
The Plaintiffs contend they did not receive notice of the possibility of discharge within 180 days after the date the Department received notice of their misconduct, in violation of Fla. Stat. § 112.532(6). The Defendant contends that the time for notifying the Plaintiffs of potential discipline was tolled while a criminal investigation of their misconduct was pending, and for Plaintiff Perez, while he was on military leave as well.
The Police Department was first notified of the Plaintiffs’ misconduct on November 17, 2005. Complaint ¶ 6. On that day, Sergeant Jennifer Lombardi, of the Department’s Professional Compliance Bureau, Internal Affairs Section, received a call from a citizen who alleged that she had called the Department previously to report an assault on her seven year-old son and that no officers had responded. Because the allegation involved official misconduct, a felony, Sgt. Lombardi immediately classified the complaint as criminal in nature. She subsequently identified the Plaintiffs as the officers who were dispatched but failed to respond to the citizen’s call.
On December 19, 2005, the Professional Compliance Bureau reassigned the investigation to its Criminal Conspiracy Section for a proactive investigation. Sgt. Rudy Gonzalez, the lead investigator, arranged for surveillance of the Plaintiffs. The surveillance showed that the Plaintiffs repeatedly failed to respond to dispatches, ignored calls for assistance and otherwise neglected their duties. After the surveillance, Sgt. Gonzalez and other Internal Affairs personnel gathered all the related paperwork, including incident reports, daily activity reports, and computer records. The documents are compiled in 14 volumes, fill two boxes, and include thousands of pages. The investigation included interviews of 25 witnesses, spread to five subject officers and uncovered more than fifty incidents of misconduct. Sgt. Gonzalez worked continuously on the investigation from December 2006 through October 2007, when he compiled a 100 + page report.
On October 17, 2006, Sgt. Gonzalez presented his findings to the State Attorney for a determination of whether to prosecute. Complaint ¶8. The Plaintiffs contend that on the very same day, the State Attorney determined that it would not prosecute. The evidence presented at the hearing, however, including the testimony of the Assistant State Attorney who reviewed the file, shows that the State Attorney did not decide to forego prosecution until at least January 22, 2007, and did not issue a formal written decision until May 17, 2007. Defendant’s Exhibit 3.
The Department served Plaintiff Avila with notice of its intent to discipline him on July 13, 2007, more than 180 days after the investigation was referred to the State Attorney, but less than 180 days after the State Attorney notified the Police Department of its intent not to prosecute. Complaint ¶ 9, Defendant’s Exhibit ⅛. The Department attempted to serve Plaintiff Perez on July 13, 2007 as well, but he was serving overseas in the military at the time and was unavailable. Defendant’s Exhibit 5. He was served upon his return on September 3, 2007. Defendant’s Exhibit 6.
LEGAL ISSUES
The statute governing the issues raised in this case is Fla. Stat. § 112.532, which provides:
All law enforcement officers and correctional officers employed by or appointed to a law enforcement agency or a correctional agency shall have the following rights and privileges:
(6) Limitations period for disciplinary actions.—
(a) Except as provided in this subsection, no disciplinary action, demotion, or dismissal shall be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of such allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct. In the event that the agency detennines that disciplinary action is appropriate, it shall complete its investigation and give notice in writing to the law enforcement officer or correctional officer of its intent to proceed with disciplinary action, along with a proposal of the action sought. Such notice to the officer shall be provided within 180 days after the date the agency received notice of the alleged misconduct, except as follows:
1.The running of the limitations period may be tolled for a period specified in a written waiver of the limitation by the law enforcement officer or correctional officer.
2. The running of the limitations period shall be tolled during the time that any criminal investigation or prosecution is pending in connection with the act, omission, or other allegation of misconduct.
3. If the investigation involves an officer who is incapacitated or otherwise unavailable, the running of the limitations period shall be tolled during the period of incapacitation or unavailability.
4. In a multijurisdictional investigation, the limitations period may be extended for a period of time reasonably necessary to facilitate the coordination of the agencies involved.
5. The running of the limitations period may be tolled for emergencies or natural disasters during the time period wherein the Governor has declared a state of emergency within the jurisdictional boundaries of the concerned agency.
(emphasis added).
As the statute makes clear, the 180-day time limit for notifying an officer of the intent to discipline is tolled during the time that a criminal investigation is pending and for any period of time that the subject officer is unavailable. The Plaintiffs acknowledge as much in their complaint. The Plaintiffs further acknowledge that the time limit was properly tolled for eight days in order to accommodate their attorneys’ schedules and for some 50 days while Plaintiff Pei'ez was on military leave.
The parties disagree over when the investigation was first classified as criminal and how long it remained criminal. The evidence at the hearing showed that the Department classified the case as criminal from its inception on November 17, 2005 and that the State Attorney did not decide to forego prosecution until at least January 22, 2007.
The parties also disagree over whether the investigation was “active” from its inception until July 2007, when the Department notified Plaintiff Avila and attempted to notify Plaintiff Perez. The Plaintiffs believe it should not have taken so long to investigate the complainant’s allegations and point to Fla. Stat. § 112.533(2)(b) for the proposition that an “investigation will be presumed to be inactive if no finding is made within 45 days after the complaint is filed.” This provision is inapplicable to this case for two reasons. First, this case is governed by Fla. Stat. § 112.532(6)(a)(2), dealing with the tolling of the 180-day time limitation, not by § 112.533(2)(b), which deals with the exemption of internal affairs investigative information from the public records laws. Subsection 112.532(6)(a)(2) does not use the term “active” and instead provides for the tolling of the limitations period “during the time that any criminal investigation or prosecution is pending in connection with the act, omission, or other allegation of misconduct” (emphasis added). “The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.” Maddox v. State, 923 So.2d 442, 446-147 (Fla.2006), quoting, State v. Mark Marks, P.A., 698 So.2d 533, 541 (Fla.1997). “When the legislature has used a term ... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.” see also Beach v. Great W. Bank, 692 So.2d 146, 152 (Fla.1997) (quoting Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). Because the legislature used the term “active” and included a 45-day presumption of inactivity in § 112.533(2)(b), but not in § 112.532(6)(a), the court cannot insert the term or the presumption by implication into the latter section. There is a logical reason for the distinction in the two statutes: It is one thing to require a police department to release records if it delays more than 45 days in conducting an investigation, it is quite another to require that same department to retain an officer who engaged in serious misconduct based on the same delay.
Second, subsection 112.533(2)(b), by its terms, “does not apply to any public record which is exempt from public disclosure pursuant to chapter 119.” Fla. Stat. § 119.071 (2)(c) exempts “active criminal investigative information” from disclosure under the public records act. Thus, subsection 112.533(2)(b) and the limits it imposes do not apply to active criminal investigations. Pursuant to Fla. Stat. § 119.011(3)(d)(2), “criminal investigative information shall be considered ‘active’ as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.” Unlike non-criminal internal affairs investigations, which are subject to the 45-day presumption in subsection 112.533(2)(b), there is no 45-day presumption of inactivity for criminal investigations in subsection 119.011 (3)(d)(2). Because the investigation in this case was criminal in nature, subsection 112.533(2)(b) by its express terms does not apply.
Even if the presumption on inactivity did generally apply to cases under § 112.532, it has been outweighed by the evidence presented in this case. The evidence shows that Sgt. Gonzalez and the Internal Affairs section spent considerable time on this complicated investigation. Given the number of incidents (over 50), the number of witnesses (25), the number of documents (hundreds), and the amount of work necessary to ensure a fair and thorough investigation, the court must conclude that the Department, in accordance with Fla. Stat. § 112.533(2)(b), “continued the investigation in reasonable, good faith anticipation of reaching an administrative finding in a foreseeable” amount of time.
Accordingly, the period of time from the date the complaint was first filed, November 17, 2005 through January 22, 2007, while the case was being investigated criminally must be excluded from the 180 day time period. With this period and the period for Plaintiff Perez’s military service excluded, both Plaintiff Avila and Plaintiff Perez received notice of their potential disciplines within the statute’s 180-day time limit.
CONCLUSIONS
Having considered the evidence and arguments presented at the evidentiary hearing, the Court concludes that the Department notified the Plaintiffs of potential discipline within the 180-day time period set forth in Fla. Stat. § 112.533.
ACCORDINGLY, it is hereby ORDERED AND ADJUDGED that:
1. The Plaintiffs’ request for injunctive relief is denied.
2. All other requested relief is denied.
3. The complaint is dismissed with prejudice and judgment shall be entered in favor of the Defendant.
Having resolved all issues raised by the parties, the court declares this case CLOSED.

Affirmed.

      . The appellants here also complain that the trial court improperly elided the evidentiary hearing on the temporary injunction with the hearing or trial on the merits of the permanent injunction. The trial court did not abuse its discretion in so doing. See Fla.R.Civ.P. 1.270(a); Amendments to the Florida Rules of Civil Procedure, 458 So.2d 245, 257 (Fla.1984) (“The right of the court to consolidate the hearing on a temporary injunction with the trial of the action is not affected [by the deletion of a specific provision in Rule 1.610 allowing consolidation] because that can still be accomplished under rule 1.270(a).1').

      . The complete subsection reads:
      (b) This subsection does not apply to any public record which is exempt from public disclosure pursuant to chapter 119. For the purposes of this subsection, an investigation shall be considered active as long as it is continuing with a reasonable, good faith anticipation that an administrative finding will be made in the foreseeable future. An investigation shall be presumed to be inactive if no finding is made within 45 days after the complaint is filed.
      Fla. Stat. § 112.533(2)(b).


source: Caselaw Access Project

author: ROTHENBERG, J. COPE, J.

license: Public Domain

text:
    Daniel WEINGRAD, M.D., Appellant, v. Kimberly Ann MILES and Jody Haynes, Appellees.
    No. 3D08-1592.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.

      Hicks, Porter, Ebenfeld & Stein and Mark Hicks, Dinah Stein and Shannon Kain, Miami; Henderson, Franklin, Starnes & Holt and Bruce M. Stanley, Fort Myers, for appellant.
    Robert S. Glazier, Miami; Alex Alvarez, Coral Gables, for appellees.
    William W. Large for the Florida Justice Reform Institute as amicus curiae in support of appellant.
    Gray Robinson, George N. Meros, Jr., Tallahassee, and Andy Y. Bardos, for the Florida Hospital Association as amicus curiae in support of appellant.

      Joel S. Perwin, Miami, for the Florida Justice Association as amicus curiae in support of appellees.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Dr. Daniel Weingrad appeals an award of $1.5 million in noneconomic damages to Kimberly Ann Miles (“Miles”) and her husband, Jody Haynes (collectively, “Appel-lees”). The sole issue before this Court is whether the retroactive application of section 766.118, Florida Statutes (2003), which capped noneconomic damages in certain medical malpractice actions at $500,000, is constitutionally permissible as applied to the facts of this case. Because we find that Appellees had no vested right to a specific damage award at the time the injury occurred, we conclude that applying the cap to Appellees’ noneconomic damage award is constitutional, and we reverse and remand for proceedings consistent with this opinion.

Background-

In December 2002, Miles was diagnosed with melanoma and had a tumor removed in an outpatient procedure. She believed that no melanoma remained but sought a second opinion from Dr. Weingrad, who told Miles she had residual melanoma in her leg that needed immediate attention. Miles underwent surgery in January 2003. Test results later showed the first procedure had removed all of the melanoma.

In early 2003, Miles developed a serious infection from the second surgery, which she contends was unnecessary. She has permanent swelling and pain and limited mobility in her leg. She has difficulty walking up stairs at Florida International University, where she teaches English, and can no longer go biking, dancing, hiking or walking with her husband. On September 9, 2005, Appellees served a Notice of Intent to Initiate Medical Malpractice Litigation, and on January 4, 2006, they sued Dr. Weingrad for negligence in performing the operation and for his follow-up care.

On September 15, 2003, nearly two years prior to Appellees’ service of their Notice of Intent, the legislation capping noneconomic damages in medical malpractice actions went into effect. The statute’s enabling clause, included as a footnote to section 766.118, states:

It is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.

The legislation was one of many reforms dating from 1975 whereby the Legislature attempted to alleviate an identified crisis in the medical malpractice insurance market. The 2003 tort reform followed extensive research by the Governor’s Select Task Force on Healthcare Professional Liability Insurance, which found “an overwhelming public necessity” for the reform measures. (Report of the Task Force at 217-18). The task force concluded that limitless noneconomic damage awards were “a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida.” Id. at 220. The task force further found that “no legislative reform plan can be successful in achieving the goal of controlling increases in healthcare costs” without including a cap on noneconomic damage award amounts. Id. at 221.

In the present action, a jury found in favor of Appellees and awarded them $1.5 million in noneconomic damages: $1,450,000 for Miles’ pain and suffering and $50,000 for her husband’s consortium claims. Dr. Weingrad moved to limit the judgment pursuant to the statutory cap. The trial court denied the motion, holding that because the causes of action accrued prior to the statute’s enactment, applying it to the Appellees’ action would amount to an unconstitutionally retroactive application. This appeal followed.

Governing Law and Analysis

We review de novo whether the retroactive application of section 766.118, the “caps statute,” is constitutionally permissible as applied to the facts of this case. Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008). As Justice Par-iente instructed in Lawnwood Medical Center, Inc. v. Seeger, 990 So.2d 503, 508 (Fla.2008), “[w]e do not take lightly a contention that a statute passed by the Legislature is unconstitutional and we start with the well-established principle that a legislative enactment is presumed to be constitutional.”

Determining whether a statute may be retroactively applied requires consideration of whether the statute expresses the intent for retrospective application and if so, whether the retroactive application is constitutional. Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, Inc., 986 So.2d 1279,1284 (Fla.2008); Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 503 (Fla.1999). In light of this clearly articulated standard, our analysis considers four determinative issues culled from pertinent Florida Supreme Court case law: (1) Is the statute procedural or substantive? See Vill. of El Portal v. City of Miami Shores, 362 So.2d 275, 278 (Fla.1978) (finding that “procedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases”); (2) Was there an unambiguous legislative intent for retroactive application? State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995); (3) Was Appellees’ right vested or inchoate? Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987) (holding that the retroactive application of a statute did not violate due process because the plaintiff had no vested right); and (4) Is the application of section 766.118 to these facts unconstitutionally retroactive?

1. Substantive vs. Procedural Statutes

The general rule is that procedural or remedial statutes may operate retrospectively but substantive statutes may not unless the Legislature has indicated a clear intent to the contrary. Laforet, 658 So.2d at 61. Substantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (holding that a statutory amendment that limited punitive damages was substantive and did not apply retrospectively); see also In re Rules of Criminal Procedure, 272 So.2d 65, 65 (Fla.1972) (stating that substantive law “creates, defines, adopts and regulates rights, while procedural law prescribes the method of enforcing those rights”).

In its analysis, the court in Mancusi stated that because punitive damages are assessed as a punishment against the wrongdoer as opposed to compensation to the injured plaintiff, the plaintiffs right to a claim for punitive damages is subject to the Legislature’s plenary authority. The court found that the “establishment or elimination of such a claim is clearly a substantive, rather than procedural, decision of the legislature because such a decision does, in fact, grant or eliminate a right or entitlement.” 632 So.2d at 1358.

In DaimlerChrysler Corp. v. Hurst, 949 So.2d 279, 287 (Fla. 3d DCA 2007), this Court found the statute that set forth the procedures for filing or maintaining certain asbestos causes of action was procedural in nature because it “merely affects the means and methods the plaintiff must follow” and does not eliminate a plaintiffs right to sue for asbestos-related injuries. As a result, this Court found that no constitutional analysis was required and the statute could constitutionally be applied retroactively. Id.

In the instant case, the statutory cap on noneconomic damages affects an individual’s right to a certain amount of damages. It does not affect the means and methods a plaintiff must follow in a medical malpractice action but instead prescribes and regulates the rights parties have to a particular damage award. Thus, the provision is substantive in nature. Because the caps statute is substantive, our analysis turns on the question of legislative intent and constitutionality.

2. Legislative Intent for Retroactive Application

Without clear legislative intent to the contrary, substantive statutes will not operate retrospectively. Laforet, 658 So.2d at 61. The Legislature unambiguously provided that section 766.118 was to operate retrospectively and apply “to any medical incident for which a notice of intent to initiate litigation” was mailed on or after September 15, 2003, as long as the application would not be prohibited by the state or federal constitutions.

Where a statute expresses clear legislative intent for retroactive application, courts will apply the provision retroactively. Doe v. Am. Online, Inc., 783 So.2d 1010, 1018 (Fla.2001). In Doe, the Florida Supreme Court upheld the retroactive application of the federal Communications Decency Act because the Act “clearly reflects Congress’ intent to apply the CDA to all suits filed after its enactment, notwithstanding when the operative facts arose” and found that because Congress’ intent was clear, it must be implemented. Id.

A federal court addressing an issue nearly identical to the instant action also properly deferred to the Legislature’s intent in applying a medical malpractice cap retroactively to the plaintiffs medical malpractice action. Wilson v. United States, 375 F.Supp.2d 467 (E.D.Va.2005). The statutory cap on noneconomic damages in Wilson contained a “clear [and] unambiguous provision” that the cap apply to all causes of action filed on or after July 1, 2003. Id. at 471. The plaintiff suffered damages following a 2001 surgery allegedly due to a surgeon’s negligence and sued on April 29, 2004. Id. at 468-69. The court found that the statutory cap was not unconstitutionally retroactive as applied, stating: “where, as here, ‘a statute is clear and unambiguous and the legislative intent is plain, ... it is the duty of the courts not to construe but to apply the statute.’ ” Id. at 472 (internal citations omitted).

Because the Florida Legislature’s intent to apply section 766.118 l’etroactively is clear and ambiguous, we address the final step in the analysis. Before doing so, however, we specifically reject the reliance by Appellees, the amicus curiae, and the Fourth District in Raphael v. Shecter, 18 So.3d 1152, 1156 (Fla. 4th DCA 2009), on cases rejecting retrospective application of a statute, where the statute in question contained no legislative language providing for the statute to apply retrospectively. Specifically, we reject reliance on: Mancusi, 632 So.2d at 1357 (where the statute at issue, section 768.73, Florida Statutes (1987), included no legislative intent for retroactive application); Hotelera Naco, Inc. v. Chinea, 708 So.2d 961, 962 (Fla. 3d DCA 1998) (holding that where no clear legislative intent exists, a substantive statute is presumed to operate prospectively); Patria Publ’ns, Inc. v. Armesto, 593 So.2d 574 (Fla. 3d DCA 1992) (where the statute in question stated that it would only apply prospectively); Royal v. Clemons, 394 So.2d 155, 158 (Fla. 4th DCA 1981) (holding that “[t]he Legislature did not incorporate within the statutory amendment a clear expression of intent for retroactive application.... As such, the amendment could never be the subject of retroactive application”). Clearly, these eases cannot be applied to the legal analysis in the instant action because without clear legislative intent for retroactive application of the statute, retroactive application would be prohibited and no constitutional analysis would be required.

3. Vested Rights

Even where the Legislature has stated its intent for retroactive application, the Florida Supreme Court has refused to apply the statute retroactively if it impairs vested rights, creates new obligations or imposes new penalties. Laforet, 658 So.2d at 61. On the issue of vested rights, our analysis is guided by the seminal case, Clausell, 515 So.2d at 1275, which we find controlling. In Clausell, the Florida Supreme Court addressed the question of whether the retroactive application of its decision in Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), which overruled an earlier decision, violated Clausell’s right to due process, where Clausell’s cause of action accrued before the Pullum decision. The Court’s analysis focused on whether Clausell had a vested right prior to the Pullum decision in pursuing his common law tort theory to recover damages. A unanimous court unequivocally determined that he did not. In reaching this conclusion, the Florida Supreme Court recognized that the United States Supreme Court had resolved this issue several years earlier in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), wherein the United States Supreme Court noted that “[o]ur cases have clearly established that ‘[a] person has no property, no vested interest, in any rule of the common law.’ ” Clausell, 515 So.2d at 1275-76.

The Florida Supreme Court also relied on and specifically quoted from the following eases in determining whether Clausell possessed a vested right to pursue a common law tort action to recover damages. Ducharme v. Merrill-National Laboratories, 574 F.2d 1307, 1309 (5th Cir.1978), cert. denied, 439 U.S. 1002, 99 S.Ct. 612, 58 L.Ed.2d 677 (1978) (holding that: “[i]t is well settled that a plaintiff has no vested right in any tort claim for damages under state law” (emphasis added)); Lamb v. Volkswagenwerk Aktiengesellschaft, 631 F.Supp. 1144, 1149 (S.D.Fla.1986), which rejected the very same argument advanced by Clausell and the Appel-lees in the instant case, stating:

While the instant Plaintiff correctly posits that a statute may not be retroactively applied to deprive a party of a vested right, such a situation simply does not exist here. “A statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right. A substantive vested right is an immediate right of present enjoyment, or a present fixed right of future enjoyment.” In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984). “To be vested a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.” Div. of Workers’ Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982) (emphasis added). The Plaintiff in the instant case had no vested contract or property right prior to the Pullum decision; instead Plaintiff was merely pursuing a common law tort theory to recover damages.

(emphasis added).

The Clausell Court also noted that the United States District Court for the Northern District of Florida reached the same conclusion in Eddings v. Volkswagenwerk, A.G., 635 F.Supp. 45, 47 (N.D.Fla.1986), which held that the “plaintiffs had at most a mere expectation that they had a cause of action they could pursue.”

The Florida Supreme Court’s finding that Clausell had, at most, a mere expectation that he had a cause of action and possessed no vested right to pursue his common law tort to recover damages is supported by federal decisions prior to and subsequent to its holding and has been relied on by the District Courts of Appeal in this state. For example, in Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929), the United States Supreme Court held that “the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object, despite the fact that ‘otherwise settled expectations’ may be upset thereby.”

In reviewing a Texas statute limiting noneconomic damages in a medical malpractice suit, a United States Circuit Court of Appeals in Lucas v. United States, 807 F.2d 414, 422 (5th Cir.1986), held that the plaintiffs common law right to recover damages for a hospital’s alleged negligence was not a property interest protected by the due process clause. Similar to the Appellees’ cause of action in the instant case, the alleged malpractice in Lucas occurred prior to the enactment of the statute limiting noneconomic damages to $500,000. Citing to Duke, as our Florida Supreme Court did in Clausell, the Fifth Circuit Court of Appeals held that statutes limiting liability are relatively commonplace and have consistently been enforced by the courts, and that a pei'son has no vested interest or right in any rule of the common law.

In Lamb, a case specifically relied on by the Florida Supreme Court in Clau-sell, the United States District Court, in interpreting and applying Florida law, specifically held that: “a plaintiff has no vested right in a tort claim”; “under Florida law a litigant has no vested right to the benefit of a statute of limitations in effect when his cause of action accrues”; and “[t]he mere prospect that Plaintiff might recover damages from a defendant on a tort theory is clearly not tantamount to a vested right.” 631 F.Supp. at 1149.

The retroactive application of an amendment to Virginia’s Medical Professional Liability Act, reducing the cap on noneco-nomic damages, was also found to be constitutional even though the alleged malpractice occurred in 2001, the amendment reducing the cap from $1 million to $250,000 for noneconomic damages was in 2003, and the complaint was filed in 2004. Wilson, 375 F.Supp.2d at 472. The court noted that the legislative intent was clear and unambiguous and found that the retroactive application of a legislative limitation on a common law measure of recovery, such as the one imposed under the Act, did not violate a fundamental constitutional right. Id.

And, it is well-recognized that Congress has an unquestioned right to make economic legislation retroactive, provided that this does not require the revision of a judgment that has become final. It is also clear that Congress and state legislatures may, consistent with the Constitution, enact retroactive legislation provided they can establish a rational basis for doing so.... Moreover, as of the effective date of the 2003 amendments— July 1, 2003 — plaintiff had not yet filed the instant action against the defendant, let alone obtained a final judgment that could potentially raise a constitutional retroactivity concern.

Id. at 472-73 (internal quotations and citations omitted).

Subsequent to the issuance of Clausell by the Florida Supreme Court, the Second District issued R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So.2d 1210 (Fla. 2d DCA 2004); the First District issued Lakeland Regional Medical Center, Inc. v. Florida Agency for Health Care Administration, 917 So.2d 1024 (Fla. 1st DCA 2006); the Third District issued Flowserve Corp. v. Bonilla, 952 So.2d 1239 (Fla. 3d DCA 2007), and DaimlerChrysler, 949 So.2d at 279; and the Fourth District issued Raphael, 18 So.3d at 1152, Williams v. American Optical Corp., 985 So.2d 23 (Fla. 4th DCA 2008), and Doe v. America Online, Inc., 718 So.2d 385 (Fla. 4th DCA 1998). In each instance (except in Williams, which is currently before the Florida Supreme Court on certification of conflict with DaimlerChrysler and Raphael, the courts have concluded that the retrospective application of a statute was not unconstitutional because the statute did not abrogate or impair a vested right.

Although R.AM. involved the enforceability of a contract, which is analyzed differently, Justice Canady, who was a member of the Second District Court at the time, and who authored the opinion, addressed the legal principles governing retrospective application of statutes, and provided an excellent analysis differentiating vested rights from expectant or contingent rights. Justice Canady noted and cited to a long list of cases, holding that:

A vested right has been defined as an immediate, fixed right of present or future enjoyment and also as an immediate right of present enjoyment, or a present, fixed right of future enjoyment .... [T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.... Vested rights are distinguished not only from expectant rights but also from contingent rights.... They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest. They are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent then- vesting.

R.A.M., 869 So.2d at 1218 (internal quotations and citations omitted).

Two years later, the First District in Lakeland, in reliance on Clausell and Lamb, determined that the retroactive application of the statute, while substantive, was constitutionally permissible because the legislative intent was clear and the statute did not abrogate a vested right. Lakeland Regional Medical Center challenged Winter Haven Hospital’s license to perform open heart surgery in 2003 and filed a petition for a formal hearing. After Lakeland Regional filed its petition, the Legislature amended sections 408.036 and 408.0361, Florida Statutes, to create a new licensure scheme which effectively eliminated Lakeland Regional’s right to challenge Winter Haven’s application. Judge Polston (now Justice Polston), writing for the court, held that although Lakeland Regional had a right under the previous statute to challenge the application, and the amendment extinguished that right, because Lakeland Regional did not have a vested constitutionally protected right, the retroactive application of the statute did not violate due process. Id. at 1033.

In Flowserve and DaimlerChrysler, this Court concluded that the retroactive application of the Asbestos and Silica Compensation Fairness Act did not deprive the plaintiffs of a vested right, and specifically relied on Clausell and the cases cited to in Clausell in reaching that conclusion. Quoting from Clausell, this Court held that “[a] substantive vested right is an immediate right of present enjoyment, or a present fixed light of future enjoyment. To be vested[,] a right must be more than a mere expectation based on an anticipation of the continuance of an existing law.” DaimlerChrysler, 949 So.2d at 285-86 (citations omitted). “Prior to the enactment of the Act, the plaintiff had, at most, a ‘mere expectation’ that the common law would not be altered by legislation. Thus, the plaintiff did not have a vested right in her common law asbestos claim.” Id. at 287 (citations omitted). We additionally noted that an expectancy differs from a vested right, citing to Forbes Pioneer Boat Line v. Board of Commissioners of Everglades Drainage District, 258 U.S. 338, 339, 42 S.Ct. 325, 66 L.Ed. 647 (1922) (holding that the “legislature [could not] take away from a private party a right to recover money that is due when the [legislative] act is passed”).

The Fourth District has ruled inconsistently on this issue. In Doe, 718 So.2d at 385, the events leading to the filing of the lawsuit occurred in 1994. On February 8, 1996, Congress enacted section 230 of the Communications Decency Act, 47 U.S.C. § 230 et seq., prohibiting civil actions that treat the provider of an interactive computer service as the “publisher” or “speaker” of messages transmitted over its service by third parties. The Fourth District concluded that although the conduct giving rise to Doe’s claims occurred prior to the Act’s enactment, Doe did not file her complaint until almost a year after the Act became effective, and Congress had clearly expressed its intent that the statute apply to any complaint filed after its effective date, regardless of when the relevant conduct allegedly occurred, the trial court did not unconstitutionally retroactively apply the Act to Doe’s complaint. Id. at 388. In reaching this conclusion the Fourth District held that “[n]o person has a vested right in a nonfinal tort judgment, much less an unfiled tort claim.” Id. at 388.

Despite the Fourth District’s holding in Doe in 1988, the court issued Williams in 2008 and Raphael in 2009, which conflict with but fail to recede from Doe. In Williams, the Fourth District found that a cause of action is a property right, 985 So.2d at 26, and determined that “[w]here a cause of action has accrued but [the] claimant has not yet filed an action for damages when new legislation substantively affecting the cause of action becomes effective, the new statute may not be applied to the cause of action when filed.” Id. at 28. In support of its position (which is contrary to the position it took in Doe ), the Fourth District incorrectly states that the Florida Supreme Court found in Clau-sed that “[w]hen the cause of action accrues it becomes ‘[a] substantive vested right ... an immediate right of present enjoyment, or a present fixed right of future enjoyment.’ ” Id. at 27. The Florida Supreme Court said no such thing. In fact, the Florida Supreme Court said the opposite:

While the instant Plaintiff correctly posits that a statute may not be retroactively applied to deprive a party of a vested right, such a situation simply does not exist here. “A statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right. A substantive vested right is an immediate right of present enjoyment, or a present fixed right of future enjoyment.” In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984). “To be vested a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.” Div. of Workers’ Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982). The Plaintiff in the instant case had no vested contract or property right prior to the Pullum decision; instead Plaintiff was merely pursuing a common law tort theory to recover damages.... [Plaintiffs had, at most, a mere expectation that they had a cause of action they could pursue, and a subsequent decision, holding the statute to be constitutional, could not and does not deprive them of any vested rights.”

Clausell, 515 So.2d at 1276. (emphasis added).

The Fourth District in Williams also improperly relied on Mancusi, which does not apply because the statute in question provided no legislative language providing that the statute be applied retrospectively, and where no legislative intent for retrospective application is provided, the statute may only be applied prospectively. It also incorrectly relies on Rupp v. Bryant, 417 So.2d 658 (Fla.1982), and Florida Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981). Unlike Williams, the plaintiff in Knowles had obtained a jury verdict and a judgment in his favor prior to the amendment of the statute. He, therefore, clearly possessed a vested property right precluding retrospective application of the amendment. Similarly, in Rupp, the plaintiff had already filed his complaint when the statute was enacted. Additionally, both Knowles and Rupp involved amendments to the statutes waiving sovereign immunity, not the enactment of statutes modifying common law torts. “A person has no property, no vested interest, in any rule of the common law.” Duke, 438 U.S. at 88, 98 S.Ct. 2620. See also Silver, 280 U.S. at 122, 50 S.Ct. 57; Lucas, 807 F.2d at 422; Ducharme, 574 F.2d at 1309; Lamb, 631 F.Supp. at 1149; Claused, 515 So.2d at 1276; Martell, 457 So.2d at 1067; Brevda, 420 So.2d at 891.

In Raphael, the Fourth District ignores the Florida Supreme Court’s holdings in Clausell, equates the vesting of rights to when a cause of action accrues, and provides no analysis or authority for its conclusion that because the facts giving rise to Raphael’s medical malpractice action occurred prior to the enactment of the statute, the statute could not be applied to him because his rights had already vested. 18 So.3d at 1154-58.

After performing a careful review of the opinions issued by the Florida Supreme Court and other courts, it appears that when determining whether a litigant has a vested right precluding retrospective application of a statute containing language indicating the Legislature’s intent that it be applied retrospectively, the courts have drawn a distinction (1) between cases already filed or a judgment rendered prior to enactment of the statute, and those when no complaint had been filed or judgment rendered; and (2) where the right or cause of action was statutorily created rather than based on common law. These distinctions, grounded in the constitutional separation of powers doctrine, reflect appropriate deference to legislative enactments. See Askew v. Schuster, 331 So.2d 297, 300 (Fla.1976) (holding that in Florida, it is well settled that “[ajbsent a violation of due process or a specific constitutional guarantee, courts cannot substitute their judgment for that of the Legislature”); In re Apportionment Law, Senate Joint Resolution No. 1305, 263 So.2d 797, 806 (Fla.1972) (emphasizing that the Court would measure legislative acts only “with the yardstick of the Constitution” and that “[t]he propriety and wisdom of legislation are exclusively matters for legislative determination”). Intervening in the Legislature’s discretionary decisions “would require the judicial branch to second guess the political and police power decisions of the other branches of government,” thus violating the separation of powers doctrine. Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985).

Although the injury in the present case occurred in 2003, prior to the effective date of the amendment of section 766.118, because Appellees did not file their notice of intent to initiate litigation, file them complaint, or obtain a judgment prior to the enactment of the statute, they had at most a “mere expectation” or a prospect that they might recover damages of an indeterminate amount at an unspecified date in the future. The Appellees had no vested right to a particular damage award and thus suffer no due process violation with the application of the caps statute to their cause of action. We therefore reverse the trial court’s order denying Dr. Weingrad’s motion to apply the statutory cap to the Appellees’ noneconomic damages.

Reversed and remanded.

SCHWARTZ, Senior Judge, concurs.

COPE, J.

(dissenting).

I respectfully dissent. We should affirm the judgment on authority of Raphael v. Shecter, 18 So.3d 1152 (Fla. 4th DCA 2009), and Menendez v. Progressive Ex press Ins. Co., — So.3d -, 2010 WL 375080 (Fla.2010).

The Raphael decision concluded, correctly in my view, that the statute is substantive and that retroactive application is prohibited. The Menendez decision addressed Florida’s standards for determining whether a statute can be applied retroactively. Both opinions support the trial court’s determination of unconstitutionality in this case.

The majority opinion relies on Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987), but that case is inapplicable. Clausell involved the retroactive application of a judicial decision, not the retroactive application of a statute. 515 So.2d at 1276. By contrast, Menendez and Raphael do address the issue now before us and under both cases, the statute cannot constitutionally be applied retroactively.

There is a seeming inconsistency between more recent appellate pronouncements regarding retroactive legislation, see Menendez, Raphael, and cases cited therein, and an older Florida Supreme Court decision, State Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981). The more recent decisions prohibit retroactive legislation which modifies substantive rights or obligations. By contrast, the Knoiules decision states:

As a matter of principle, it is indisputable that a retroactive application of the 1980 law has taken from Knowles something of value, and that nothing of value has been substituted or otherwise provided.
Under due process considerations, a retroactive abrogation of value has generally been deemed impermissible. The rule is not absolute, however, and courts have used a weighing process to balance the considerations permitting or prohibiting an abrogation of value. Despite formulations hinging on categories such as “vested rights” or “remedies,” it has been suggested that the weighing process by which courts in fact decide whether to sustain the retroactive application of a statute involves three considerations: the strength of the public interest served by the statute, the extent to which the right affected is abrogated, and the nature of the right affected. That analysis is helpful here. Without discoursing unduly on the point, we readily conclude that the balancing of these factors favors Knowles. The statute effects an abrogation of Knowles’ right to his full tort recovery, not merely a procedural adjustment of his remedies. That abrogation clearly outweighs the public’s interest in the 1980 legislation.
Quoting Mr. Justice Holmes in Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338, 339, 42 S.Ct. 325, 66 L.Ed. 647 (1922):
Stripped of conciliatory phrases the question is whether a state legislature can take away from a private party a right to recover money that is due when the act is passed.
We hold, as in Forbes, that it cannot.

402 So.2d at 1158-59 (citations and footnotes omitted). It is not clear whether Knowles has been abandoned by the Florida Supreme Court, and clarification by that Court would be helpful.

Assuming that Knowles continues to have vitality, the result in this case would be the same: retroactive application of the statute is impermissible.

We should affirm the judgment.

      . The terms ''retroactive” and "retrospective” are used synonymously. A Dictionary of Modem Legal Usage 768 (2d ed. 1995).

      . Report of the Task Force is available at http://tinyurl.com/TaskForceReport.

      . E.g., Rupp, 417 So.2d at 658 (denying retrospective application where the plaintiff had filed suit by the time the statute was amended); Knowles, 402 So.2d at 1155 (where the plaintiff had obtained a judgment prior to statutory amendment); City of Winter Haven v. Allen, 541 So.2d 128, 131 (Fla. 2d DCA 1989) (where the Legislature amended statute at issue after plaintiff filed and amended her wrongful death action but prior to trial).

      . Retrospective application has been consistently upheld in state and federal courts. E.g., Lucas, 807 F.2d at 414; Wilson, 375 F.Supp.2d at 467; Johnson v. Virgin Islands Port Auth., 236 F.Supp.2d 503 (D.Vi.2002); Lamb, 631 F.Supp. at 1144; Doe, 783 So.2d at 1018; Clausell, 515 So.2d at 1276; Flowserve, 952 So.2d at 1239; DaimlerChrysler, 949 So.2d at 279; Lakeland, 917 So.2d at 1024; R.A.M., 869 So.2d at 1210; In re Will of Martell, 457 So.2d at 1064; Brevda, 420 So.2d at 887.

      .Retrospective application found unconstitutional in Laforet, 658 So.2d at 55 (the right for a first-party action by an insured for bad faith was statutorily created; only third-party actions by an insured for bad faith existed at common law); Kaisner v. Kolb, 543 So.2d 732, 739 (Fla.1989) (waiver of sovereign immunity was statutory); L. Ross, Inc. v. R.W. Roberts Const. Co., 481 So.2d 484 (Fla.1986) (right to attorney’s fees was statutory); Young v. Altenhaus, 472 So.2d 1152 (Fla.1985) (attorney's fees); Knowles, 402 So.2d at 1155 (sovereign immunity); see also R.A.M., 869 So.2d 1210 (Fla. 2d DCA 2004) (Canady, J., used a different analysis because the case dealt with the enforceability of a contract); Galbrealh v. Shortle, 416 So.2d 37 (Fla. 4th DCA 1982) (sovereign immunity).

       In Knowles, the Court considered a statute which granted public employees immunity from suit and made the immunity applicable to pending suits. Id. at 1156.


author: PER CURIAM.

text:
    Joseph RIVERS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-3713.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Joseph L. Rivers, Jr., Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant the Petition for Belated Appeal, and on the merits, the order of the trial court is affirmed. See Fla. R.App. P. 9.315(a).

POLEN, FARMER and LEVINE, JJ, concur.


text:
    Andy GRANADOS, Appellant, v. Mary DEL PINO, Appellee.
    Nos. 3D08-2730, 3D09-579.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Alvarez & Alvarez-Zane and Amado Alan Alvarez, for appellant.
    David H. Pollack and Margaux L. Ber-witt, Miami, for appellee.
    Before GERSTEN and SHEPHERD, JJ, and SCHWARTZ, Senior Judge.

      . Senior Judge Schwartz did not participate in oral argument.

   PER CURIAM.

Affirmed. See Robertson v. Robertson, 593 So.2d 491 (Fla.1991).


author: ORFINGER, J.

text:
    RAMESES, INC., d/b/a Cleo’s, et al. Appellant, v. Jerry L. DEMINGS, in his Official Capacity, etc. Appellee.
    No. 5D09-208.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.

      Steven G. Mason, of Steven G. Mason, P.A., Orlando, for Appellant.
    Eric Dunlap, Assistant General Counsel, Orange County Sheriffs Office, Orlando, for Appellee.
   ORFINGER, J.

Rameses, Inc., d/b/a Cleo’s, and attorney Steven G. Mason (collectively “Cleo’s”) appeal from an adverse summary judgment entered in their action seeking disclosure of several videotapes generated by the Metropolitan Bureau of Investigation (MBI) as part of a 2004 undercover investigation in Orange County known as “Operation Overexposed.” Jerry L. Demings, the Sheriff of Orange County, in his official capacity and as the records custodian of the MBI, declined to release the tapes unless the faces of the undercover officers were obscured. The issue both below and on appeal is a narrow one. When public records, otherwise exempt from disclosure under section 119.071, Florida Statutes (2008), have been disclosed during discovery to a criminal defendant, is the government precluded from asserting applicable statutory exemptions from disclosure in a subsequent public records action? We answer in the negative and affirm.

The MBI conducted a criminal investigation at Cleo’s, an adult nightclub, during which undercover law enforcement officers posed as patrons. At the completion of the operation, several dancers were arrested and charged with public nudity, exposure of sexual organs and “straddle dancing.” Some of the illegal conduct was videotaped and depicted the faces of the undercover officers. In the ensuing criminal proceedings, the defendant dancers participated in discovery under Florida Rule of Criminal Procedure 3.220, and received copies of the unredacted tapes. The criminal prosecutions against the dancers concluded in 2005, and the related administrative charge against Cleo’s was resolved shortly thereafter. After the criminal and administrative litigation ended, Cleo’s, represented by Mr. Mason, sought release of the videotapes by submitting a public records request to the Sheriff. The Sheriff offered to provide redacted tapes. Cleo’s objected to the redaction of these recordings, and brought the instant action, seeking unredacted copies.

The Sheriff filed a motion for summary judgment, conceding that the 2004 recordings are public records and are not relevant to any active criminal investigation. However, relying on several exemptions from disclosure relating to law enforcement personnel and surveillance techniques contained in section 119.071, the Sheriff argued that the faces of the MBI agents should be obscured. In its opposing motion for summary judgment, Cleo’s argued that since unredacted tapes had been released to the defendant dancers during discovery in the criminal proceedings, the exemptions no longer applied. The trial court granted summary final judgment in favor of the Sheriff, concluding that the Sheriff was authorized to “obscure the faces” of all the undercover MBI officers prior to producing the recordings pursuant to the exemptions contained in section 119.071(4)(c) and (4)(d). Cleo’s appeals, arguing that the exemptions do not control and that unredacted production of the tapes is required by law.

A trial court’s decision to grant a motion for final summary judgment, which poses a pure question of law, is reviewed de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). The issue in this public records litigation involves a matter of statutory construction and is a question of law. See Wagner v. Orange County, 960 So.2d 785 (Fla. 5th DCA 2007) (involving public records litigation).

The Florida Constitution provides that the public shall have full access to government records, though exemptions may be enacted by a two-thirds vote of each house of the Legislature. Art. I, § 24, Fla. Const. Chapter 119, Florida Statutes, known as the Public Records Act, implements this policy of open public records by providing that “[i]t is the policy of this state that all state, county and municipal records shall be open for personal inspection by any person.” § 119.01(1), Fla. Stat. (2008). The motivation or purpose of the person seeking disclosure of public records is irrelevant. Lorei v. Smith, 464 So.2d 1830, 1332 (Fla. 2d DCA 1985). Rather, the right of access to public records is virtually unfettered, save for statutory exemptions designed to achieve a balance between an informed public and the ability of the government to maintain secrecy in the public interest. Id.

In light of the policy favoring disclosure, the Public Records Act is construed liberally in favor of openness, and exemptions from disclosure are construed narrowly and limited to them designated purpose. City of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994). Accord WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004). The government has the burden to demonstrate the applicability of a statutory exemption. Weeks v. Golden, 764 So.2d 633, 635 (Fla. 1st DCA 2000).

The Sheriff contends that the identities of the undercover law enforcement personnel must be obscured under section 119.071(2)(d), Florida Statutes (2008), which exempts “[a]ny information revealing surveillance techniques or procedures or personnel section 119.071(4)(c), Florida Statutes (2008), which exempts “[a]ny information revealing undercover personnel of any criminal justice agency and/or section 119.071(4)(d)l.a., which exempts “[t]he home addresses, telephone numbers, social security numbers, and photographs of active or former law enforcement personnel.... ” Cleo’s contends that while these exemptions may have been applicable to the videotapes at issue, the exemptions are now moot or were waived when the recordings were disclosed, without redaction, to the criminal defendant dancers during discovery. The Sheriff disagrees, arguing that such disclosure does not itself waive all public record exemptions or confidentiality considerations.

In Post-Newsweek Stations, Florida Inc. v. Doe, 612 So.2d 549, 551 (Fla.1992), the supreme court discussed the interplay between rule 3.220 and the public records law:

Florida law clearly expresses that it is the policy of this state that all government records, with particular exemptions, shall be open for public inspection. § 119.01. Subsection 119.011(3)(e) provides an exemption for criminal investigative information developed for the prosecution of a criminal defendant. Pursuant to the statute, such information will not be accessible to the public until the information is given or required by law or agency rule to be given to the accused. § 119.011(3)(c)(5). Rule 3.220 requires the state to turn over the discovery information to the defendant. In Florida Freedom Newspapers, Inc. v. McCrary, 520 So.2d 32 (Fla.1988), we stated that, once the state gives the requested information to the defendant, pretrial discovery information attains the status of a public record.

(emphasis added). However, and perhaps, most significant to the issue presented here, the court went on to say, “we emphasize that the public does not have a universal right to all discovery materials.” Id. at 553. This may be premised, in part, on the definition of “criminal investigative information” found in section 119.011(3)(a) and (b), which specifically excludes “documents given or required by law ... to be given to the person arrested.... ”

Our sister courts’ decisions in Salcines v. Tampa Television, 454 So.2d 639 (Fla. 2d DCA 1984), and Christy v. Palm Beach County Sheriff’s Office, 698 So.2d 1365 (Fla. 4th DCA 1997), demonstrate the continued viability of the exemptions contained in section 119.071 to protect the identity of undercover law enforcement personnel, even if that information may already be public. In Tampa Television, the trial court ordered the disclosure pursuant to the public records law of a subpoena, which on its face purported to identify confidential informants. The second district reversed the order of disclosure, stating as follows:

In considering the exemptions granted in section 119.07(3)(e), we have concluded that neither the statute nor case law dictates that the exemptions from disclosure relate to confidential informants or sources who are currently being used as such, or whose identity has not previously been disclosed. We therefore conclude that it matters not that the informants or sources are no longer active or may have, through other sources, been identified as such. Section 119.07(3)(e) [now subsection (3)(c) ] applies the exemptions to any information revealing identity. It does not specify not previously identified, nor current “confidential informants or sources.”

454 So.2d at 641.

In Chñsty, the fourth district agreed with Tampa Television, ruling that the fact the names of a confidential informant and undercover law enforcement personnel involved in an arrest were already known, did not destroy the exemption from disclosure in a public records action. In that case, the court noted that the records were generated in a criminal investigation conducted thirteen years earlier and that there was nothing to indicate the information was “active.” Notwithstanding, the court rejected Christy’s claim that because he already knew the identity of the confidential informant and undercover Sheriffs personnel, the exemption for such information was inapplicable. Rather, the appellate court found that Christy was entitled to a redacted version of the records, adding that “[although the redaction of the identities of the confidential informant and [the Sheriffs] undercover personnel may frustrate [Christy’s] purpose in requesting the records, this is all that [Christy] is entitled to under the Public Records Act.” 698 So.2d at 1368.

Here, the defendant dancers may have been entitled to unredacted versions of the surveillance recordings in preparing them defenses under rule 3.220. However, we see no reason why such forced disclosure should transform otherwise exempt material into public information when the specific exemptions contained in section 119.071 are considered. Accord Livistrom v. Ladenburg, 110 Wash.App. 133, 39 P.3d 351 (2002) (holding prosecutor’s compliance with mandatory discovery in criminal proceeding by providing documents to defense did not make otherwise privileged public records open to examination). To conclude otherwise would effectively allow the rules of criminal procedure, which are enacted to govern criminal discovery, to trump legislatively approved exemptions from disclosure under the Public Records Act. Such a result would impinge on the Legislature’s prerogatives. Merely because exempt information has been revealed to a criminal defendant during discovery does not extinguish the state’s legitimate interest, as reflected in the exemptions asserted by the Sheriff, from public disclosure of such information.

We hold that the disclosure to a criminal defendant during discovery of unredacted versions of undercover police surveillance recordings does not destroy, in a public records context, the exemptions contained in section 119.071 for information relating to the identity of undercover law enforcement personnel. As a result, we conclude that the trial court was correct in ordering that the faces of the undercover officers be obscured prior to release of the surveillance recordings.

AFFIRMED.

PALMER and EVANDER, JJ, concur.

      . Videotape recordings fall within the ambit of chapter 119, Florida Statutes. See § 119.011(12), Fla. Stat. (2008) (defining public records to include sound recordings, films, photographs and tapes).

      . In making its decision, the trial court assumed, without deciding, that unredacted tapes had been released to the defendant dancers.

      .Cleo’s earlier lawsuit against the MBI, seeking the tapes, was dismissed based on a determination that the MBI was not a legal entity capable of being sued. See Ramese's, Inc. v. Metro. Bureau of Investigation, 954 So. 2d 703 (Fla. 5th DCA 2007).

      . As Cleo’s argues, several cases hold that some public records exemptions no longer apply after the information has been disclosed under the rules of discovery. For instance, an exemption exists for “active criminal intelligence information” and "active criminal investigative information.” § 119.071(2)(c), Fla. Stat. (2008); see § 119.071 (2)(h), Fla. Stat. (2008) (listing limited class of “criminal intelligence information” and “criminal investigative information” that is confidential and is not subject to public records disclosure). However, this exemption does not apply to "documents given or required by law or agency rule to be given to the person arrested," section 119.01 l(3)(c)5., Florida Statutes (2008), or to information for which disclosure was previously required under the rules of discovery. See Staton v. McMillan, 597 So.2d 940, 941 (Fla. 1st DCA 1992); Tribune Co. v. Public Records, 493 So.2d 480 (Fla. 2d DCA 1986). Nor does it apply to information that has already been made public since there is "an end to secrecy about those documents.” Downs v. Austin, 522 So.2d 931, 935 (Fla. 1st DCA 1988) (quoting Satz v. Blankenship, 407 So.2d 396, 398 (Fla. 4th DCA 1981)); see Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775 (Fla. 4th DCA 1985). Thus, the exemption does not apply to information previously made available at a public hearing. Staton, 597 So.2d at 941; Downs, 522 So.2d at 935. Nevertheless, as the Sheriff argues, these decisions are factually and legally distinguishable as they involve the exemption for either "active criminal intelligence information’' or "active criminal investigative information,” which are not the exemptions at issue. The material given to the defendant dancers was not "active” or "criminal intelligence information” or "criminal investigative information.” See § 119.01 l(3)(c)5. & 6.(d), Fla. Stat. (2008).

      . This conclusion is further buttressed by the fact that although a criminal defendant may learn the identity of undercover law enforcement personnel through discovery, the government may, in limited circumstances, prevent public disclosure of this information at trial by, for instance, excluding the public from the portion of the trial where such personnel are testifying. See Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Brown v. Artuz, 283 F.3d 492 (2d Cir.2002) (holding that legitimate, demonstrated safety concerns of undercover police officer constitute recognized interest that may override defendant’s Sixth Amendment right to public trial).


text:
    Marshall VAUGHAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4088.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    Marshall S. Vaughan, Carrabelle, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

ORFINGER, J.

We grant Appellant’s motion for rehearing, withdraw our earlier opinion in this case and substitute the following in its place.

Marshall S. Vaughan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He claims that his trial counsel was ineffective for allowing him to plead no contest to felony driving while license suspended as he did not have the requisite prior convictions to enhance his latest offense to a felony. We reverse.

In Citrus County Circuit Court case number 08-CF-654, Vaughan was charged with, and ultimately pled no contest to, numerous offenses, one of which was felony driving while license suspended, a violation of section 322.34(2) (c), Florida Statutes (2008). That statute provides in pertinent part:

(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(c) A third or subsequent conviction is guilty of a felony of the third degree....

(emphasis added). The statute also provides that a person who drives while his or her license is cancelled, suspended or revoked, without knowledge of the cancellation, suspension or revocation, is guilty only of a moving violation, not a criminal offense. See § 322.34(1), Fla. Stat. (2008); Thompson v. State, 887 So.2d 1260, 1262 (Fla.2004). Vaughan correctly argues that convictions under section 322.34(1), driving with a suspended license without knowledge of the suspension, cannot be used as a predicate to enhance later convictions of driving while license cancelled, suspended or revoked with knowledge.

The information charging Vaughan with driving while license suspended in 1997, one of the two predicate offenses charged by the State, charged that Vaughan “did while his operator’s or chauffer’s license or driving privilege had been cancelled, suspended or revoked, drive a motor vehicle upon the highways of this State, in violation of Florida Statute 322.34(1).” Unless the information was amended, which is not apparent from the record before us, it did not charge Vaughan with driving while license suspended with knowledge of the suspension, an offense that could serve as a predicate for felony driving while license suspended. As this matter is not conclusively refuted by the record, we remand for the attachment of documents conclusively refuting Vaughan’s allegations or an evidentiary hearing. Only the driving while license suspended matter shall be considered by the circuit court on remand. All other convictions in Vaughan’s case are unaffected.

REVERSED and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.


author: LAWSON, J.

text:
    Clifford FULWORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1092.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Clifford Fulword timely appeals the order denying his motion for new trial, filed after an Orange County jury found him guilty of robbery with a firearm and aggravated battery with a firearm. The State concedes that the trial court applied an incorrect legal standard when addressing Fulword’s motion. We agree, and reverse with directions that the trial court reconsider the motion, applying the correct standard.

The State’s case against Fulword rested solely on the trial testimony of Shawn Swallow, the alleged victim. Swallow’s testimony was somewhat disjointed, and at times appeared inconsistent. Fulword’s new trial motion argued, in part, that the verdict was contrary to the weight of the evidence due to inconsistencies in Swallow’s account of the events at issue. In denying the motion, the trial court stated in pertinent part:

Well, I think clearly the matter of credibility of witnesses is a matter for the jury, as is the issue of intent.
It was the jury — jury’s job to determine credibility and the jury’s job to determine whether or not the State had proved the requisite intent on these two charges beyond a reasonable doubt.

However, when considering a motion for new trial under Florida Rule of Criminal Procedure 3.600(a)(2), based on a claim that the verdict is against the weight of the evidence, the trial court must exercise its discretion to determine “whether a greater amount of credible evidence supports one side of an issue or the other.” Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002) (citation omitted) (emphasis added); see also Moore v. State, 800 So.2d 747, 749 (Fla. 5th DCA 2001) (when determining whether a verdict is contrary to the weight of the evidence, “ ‘the trial court acts as a safety valve by granting a new trial where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict’ ”) (quoting State v. Hart, 632 So.2d 134, 135 (Fla. 4th DCA 1994)) (citation omitted). Thus, rule 3.600(a)(2) “ ‘enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror.’ ” Id. (quoting Tibbs v. State, 397 So.2d 1120, 1123 n. 9 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)). As conceded by the State, it does not appear from the trial court’s oral ruling that the judge applied this standard when considering Fulword’s motion for new trial. Accordingly, we reverse the order denying Fulword’s motion and remand the case back to the trial court to consider the weight of the evidence when ruling on his motion. E.g., Guebara v. State, 856 So.2d 1087 (Fla. 5th DCA 2003) (concluding that the trial court applied the wrong standard when ruling on defendant’s motion for a new trial, and matter was remanded to the trial court to reconsider the motion); Moore, 800 So.2d at 750 (reversing the order denying the motion for new trial and remanding case to the trial court to consider the weight of the evidence, rather than the sufficiency of the evidence, when ruling on the motion for new trial).

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER and TORPY, JJ., concur.


author: GRIFFIN, J.

text:
    K.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2097.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

K.H., a child, [“K.H.”] appeals the trial court’s final disposition order withholding adjudication of delinquency and imposing six months of probation after finding K.H. guilty of furnishing a weapon to a minor under eighteen years of age. K.H. argues that the trial court erred by denying his motion for judgment of dismissal.

The minor testified that K.H. sold him a knife for ten dollars. Law enforcement officer Edd Gordon [“Officer Gordon”] testified that he was a school resource officer and that he recovered a switchblade knife from the minor. When asked to describe the knife, Officer Gordon testified: “It was a black steel knife, painted black. It was a switchblade and has a push-button on it that once you push the button, it releases the blade, which swings open.” The State entered into evidence the switchblade that Officer Gordon had recovered from the minor.

After the State rested, K.H. moved for a judgment of dismissal, arguing that he did not violate section 790.17(1) because the switchblade is an “ordinary pocketknife,” which is excluded under the statutory language. The State countered that the switchblade at issue is not an ordinary pocketknife, asserting that the triggering mechanism of the switchblade distinguishes it from an ordinary pocketknife. The trial court denied the motion.

In L.B. v. State, 700 So.2d 370, 373 (Fla.1997), the Florida Supreme Court found that a knife with a “3 3/4-inch blade” constituted a “common pocketknife” and, thus, fell “within the statutory exception to the definition of ‘weapon’ found in section 790.001(13).” The knife was a “folding knife.” Id. at 371. In reaching its conclusion, the Florida Supreme Court noted: “In 1951, the Attorney General of Florida opined that a pocketknife with a blade of four inches in length or less was a ‘common pocketknife.’ ” Id. at 373 (citing Op. Att’y Gen. Fla. 051-358 (1951)). It also noted the dictionary definition for the terms “common” and “pocketknife” and said:

From these definitions, we can infer that the legislature’s intended definition of “common pocketknife” was: “A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.”

Id. at 372.

In J.D.L.R. v. State, 701 So.2d 626, 627 (Fla. 3d DCA 1997), the Third District Court of Appeal found that a knife “d[id] not fall within the Supreme Court’s definition of ‘common pocketknife’ ” as enunciated in L.B. The Third District explained: “It is, indeed, a ‘pocketknife,’ but it is not a ‘common’ knife. As the trial judge pointed out, its distinctive features are not those characteristic of the typical, ordinary, frequently-occurring pocketknife, but rather are characteristic of a weapon.” Id. The knife in question was a “folding knife with a pointed 3 1/2 inch blade, notched combat-style grip and large metal hilt guard (to prevent the user’s fingers from sliding onto the blade).” Id. Lately the Third District said: “A pocketknife which is found in the open position or which has a distinctive weapon-like characteristic such as a hilt guard or notched combat-style grip, does not fall within the common pocketknife exception.” (J.R.P. v. State, 979 So.2d 1178, 1179 (Fla. 3d DCA 2008) (citing Porter v. State, 798 So.2d 855, 856 (Fla. 5th DCA 2001)); J.D.L.R, 701 So.2d at 627).

Here, the trial testimony indicates that the knife at issue is a folding-type switchblade with a double-edged blade approximately three inches in length. A push-button on the knife releases and swings the blade into an open/extended position. This knife had distinctive features not usual for an ordinary or common pocketknife but more characteristic of a knife designed to be a weapon. As such, the trial court did not err by denying K.H.’s motion for judgment of dismissal. See Bunkley v. State, 882 So.2d 890 (Fla.2004).

AFFIRMED.

MONACO, C.J. and EVANDER, J., concur.

      . Section 790.17(1), Florida Statutes (2008), provides:
      A person who sells, hires, barters, lends, transfers, or gives any minor under 18 years of age any dirk, electric weapon or device, or other weapon, other than an ordinary pocketknife, without permission of the minor’s parent or guardian, or sells, hires, barters, lends, transfers, or gives to any person of unsound mind an electric weapon or device or any dangerous weapon, other than an ordinary pocketknife, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      . K.H. asserts that switchblades are not illegal under section 790.225, Florida Statutes (2008), but the fact that a switchblade in question is not prohibited under Florida law does not speak to the issue of whether it is a weapon for purposes of section 790.17(1).


text:
    F.W., A child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2138.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

In this appeal from a juvenile disposition, the State concedes that the trial court erred by assessing costs of prosecution. See S.D.J. v. State, 21 So.3d 140 (Fla. 5th DCA 2009); D.A. v. State, 11 So.3d 423 (Fla. 4th DCA 2009) (holding that section 938.27(1), Florida Statutes, does not authorize courts to impose costs of prosecution on juvenile adjudicated delinquent). Accordingly, we remand with directions that these costs be stricken. In all other respects, the adjudication of delinquency and disposition are affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Maureen MORELL, Petitioner, v. Kathleen BOOTH, Respondent.
    No. 5D09-3308.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    Eben Self of The Law Office of Eben C. Self, P.A., Orlando, for Petitioner.
    Jon S. Rosenberg, Orlando, for Respondent.
   PER CURIAM.

Petitioner, a non-party to a dissolution proceeding, seeks review of an order compelling her to produce financial records and overruling her objection based on her constitutional right of privacy. We conclude that Respondent failed to show a compelling need for the records sufficient to defeat Petitioner’s privacy rights. We also conclude that the trial court erred by imposing sanctions against Petitioner, a non-party, absent a finding of contempt. The portion of the lower court’s order compelling the production of the records is quashed; the portion imposing sanctions is reversed. Price v. Hannahs, 954 So.2d 97 (Fla. 2d DCA 2007).

PETITION GRANTED; ORDER QUASHED IN PART AND REVERSED IN PART.

GRIFFIN, TORPY and LAWSON, JJ., concur.


text:
    Kevin JOSEPH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4224.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    Kevin Joseph, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A cop3r of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 05-2008-CF-64105-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., SAWAYA, and LAWSON, JJ., concur.


text:
    Jaquarr M. CURRY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-181.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    Jaquarr M. Curry, Perry, pro se.
    Bill McCollum, Attorney General Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2008-CF-002840-CR, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, PALMER and COHEN, JJ., concur.


text:
    Joshua MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-261.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2010.
    Joshua Miller, Sneads, pro se.
    Bill McCollum, Attorney General Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in case number 2008-02868-CFAWS, in the Circuit Court in and for

Volusia County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, LAWSON and JACOBUS, JJ., concur.


text:
    Stephen Fredric GANSTINE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0227.
    District Court of Appeal of Florida, First District.
    March 5, 2010.
    Stephen Fredric Ganstine, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    R.T., Mother of A.T. and Z.T., Children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D08-5605.
    District Court of Appeal of Florida, First District.
    March 9, 2010.
    Jodi Seitlin of the Seitlin Law Firm, P.A., Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

Appellant seeks review of an order in a dependency proceeding adjudicating her child A.T. dependent. She contends that the trial court committed reversible error when it adjudicated the child dependent based on a mediated settlement agreement without first determining whether her consent was knowing and voluntary. The Department of Children and Family Services correctly concedes error. Florida Rule of Juvenile Procedure 8.325(c) requires that, before accepting a consent to a finding of dependency, the trial court determine that the consent “is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the ... consent,” and that findings to that effect be incorporated into the order, even when there has been a mediated settlement agreement. In re B.G., 884 So.2d 357, 359 (Fla. 2d DCA 2004). Because the trial court failed to do so here, we are constrained to reverse, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Stephanie R. GASKINS, Petitioner, v. Charles Edward CANTY, Jr. and Christopher Gaskins, Respondents.
    No. 2D09-5172.
    District Court of Appeal of Florida, Second District.
    March 10, 2010.
    Celene H. Humphries of Brannock & Humphries, Tampa, and Scott T. Johni of Law Office of Scott Johni, P.A., Tampa, for Petitioner.
    Lorraine A. Valenti of Valenti & Associates, P.A., Tampa, for Respondents.
   NORTHCUTT, Judge.

Stephanie Gaskins, the plaintiff in the action below, has petitioned for a writ of certiorari quashing a circuit court order that requires her to attend a compulsory vocational rehabilitation examination. The order provides that the examination may be recorded by use of an unattended videotape or audiotape machine, but it prohibits the presence of any third persons, such as a videographer or Gaskins’s attorney. We grant the petition and quash the order compelling the examination with limitations.

Christopher Canty, a defendant in the action, sought to have Gaskins examined pursuant to Florida Rule of Civil Procedure 1.360. Gaskins responded that she would appear for the examination accompanied by her counsel or a videographer. Canty then filed a motion to compel the examination with limitations and attached the affidavit of his proposed examiner, who asserted that: (1) the examination involved timed testing that could not be interrupted by the changing of videotapes; (2) the presence of a videographer could negatively affect the examination; and (3) “numerous psychological literature with empirical studies and analyses” show that observation may affect an event. The circuit court held a hearing on the motion, but no additional evidence concerning the proposed limitations was presented. After the hearing, the court entered the order under review.

Florida courts follow the liberal view when determining whether attorneys and other third persons may attend examinations. US. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 700-01 (Fla.2000). Thus, parties in civil suits are generally entitled to have attorneys, videographers, or court reporters attend when they are compelled to submit to examinations. Maraman v. State, 980 So.2d 1096, 1098 (Fla. 2d DCA 2008); Broyles v. Reilly, 695 So.2d 832, 833 (Fla. 2d DCA 1997). The party opposing a third person’s presence at an examination has the burden to establish case-specific reasons why such attendance would disrupt it. If that burden is met, the party must then show that no other examiner in the area would conduct an examination with a third party present. Freeman v. Latherow, 722 So.2d 885, 886 (Fla. 2d DCA 1998); Broyles, 695 So.2d at 834.

Canty met neither of his burdens. While the affidavit was somewhat case specific, it discussed a “rehabilitation examination.” The parties agreed at the hearing to a “life plan” examination because Mrs. Gaskins had dropped her claim for future lost wages. The proposed examiner was not present at the hearing and thus did not provide any evidence concerning the specifics of a “life plan” examination or why the presence of a third person would disrupt such an examination. And even if Canty had met this burden, he presented no evidence at all concerning the second prong, i.e., that no other examiner would conduct the examination with the third person present.

Accordingly, we grant Gaskins’s petition and quash the circuit court’s order. If Canty continues to perceive a need for a limited examination he may file an appropriate motion and present additional evidence in an attempt to satisfy the burdens discussed in this opinion.

Petition granted; order quashed.

SILBERMAN and MORRIS, JJ„ Concur.

      . At the hearing, the scope of the examination was narrowed to a "life plan” examination.


author: CRENSHAW, Judge.

text:
    Henry D. MACARTY, Jr., Appellant, v. Melody D. MACARTY, Appellee.
    No. 2D09-2918.
    District Court of Appeal of Florida, Second District.
    March 10, 2010.
    Kenneth K. Thompson of Kenneth K. Thompson, P.A., Lehigh Acres, for Appellant.
    Mary C. Evans of Fried & Fried, P.A., Fort Myers, for Appellee.
   CRENSHAW, Judge.

Henry D. Macarty, Jr. (the Husband), appeals the trial court’s nonfinal order awarding temporary support and attorney’s fees to Melody D. Macarty (the Wife). The trial court ordered the Husband to pay the Wife $5000 for moving expenses, $1510 per month for temporary support, and $5000 for attorney’s fees. We affirm the trial court’s award of temporary support because the absence of a transcript prevents the Husband from demonstrating reversible error. Because the portion of the order awarding attorney’s fees is facially erroneous, we reverse the award of attorney’s fees and remand for further proceedings.

The record before this court does not include a transcript of the hearing on the Wife’s motion for temporary relief. “Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Because we cannot provide a meaningful review of the trial court’s order awarding temporary relief to the Wife, we affirm that award.

However, we reverse the award of attorney’s fees to the Wife because the portion of the order awarding attorney’s fees is facially erroneous. “[A]n award of attorney’s fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings.” Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007). Accordingly, we remand for the trial court to make the necessary written findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). See Markovich v. Markovich, 974 So.2d 600, 601 (Fla. 2d DCA 2008); Giltex Corp. v. Diehl, 583 So.2d 734, 735 (Fla. 1st DCA 1991).

We certify the following question to be one of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), as this court did in Harris v. McKinney, 20 So.3d 400, 404 (Fla. 2d DCA 2009), and Peacock v. Ace, 24 So.3d 750, (Fla. 2d DCA 2009):

IS AN ORDER AWARDING ATTORNEY’S FEES PURSUANT TO FLORIDA PATIENT’S COMPENSATION FUND V. ROWE, 472 So.2d 1145 (Fla.1985), THAT LACKS THE REQUIRED FINDINGS REGARDING THE NUMBER OF HOURS REASONABLY EXPENDED AND THE REASONABLENESS OF THE HOURLY RATE CHARGED FUNDAMENTALLY ERRONEOUS ON ITS FACE, THUS REQUIRING REVERSAL, EVEN WHEN THE APPELLATE RECORD DOES NOT INCLUDE A TRANSCRIPT OR APPROVED STATEMENT OF THE PROCEEDINGS BELOW?

Affirmed in part, reversed in part, remanded with directions, and question certified.

DAVIS and KELLY, JJ., Concur.


text:
    Juan GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1741.
    District Court of Appeal of Florida, Second District.
    March 10, 2010.

      Frances Martinez of Escobar, Ramirez & Associates, Tampa, for Appellant.
   CRENSHAW, Judge.

Juan Gonzalez appeals the summary denial of his second amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Gonzalez, who is a Mexican citizen, pleaded guilty to burglary and grand theft in 1995 and to burglary in 1996, and was sentenced to probation in both cases. In his initial motion, Gonzalez alleged that his pleas were involuntary because he was not advised of the deportation consequences of pleading to the charges. The postconviction court dismissed the motion with leave to amend, finding the motion facially insufficient for failure to allege that Gonzalez was subject to deportation based solely on the pleas entered in the subject cases. Gonzalez timely filed an amended motion, and the postconviction court dismissed the amended motion, again with leave to amend, finding that Gonzalez failed to allege how he would prove that the trial court did not warn him of the potential deportation consequences. After review of the timely filed second amended motion, the postconviction court found that because no transcripts exist for the 1995 and 1996 plea hearings, and because Gonzalez’s testimony alone would not be “conclusive evidence of a violation,” as required by State v. Green, 944 So.2d 208, 218 (Fla.2006), Gonzalez is not entitled to relief.

The language of rule 3.850 supports the conclusion that an evidentiary hearing is appropriate when there is no record to refute a legally sufficient postconviction claim. See Fla. R.Crim. P. 3.850(d) (“If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order.”); see also Smith v. State, 25 So.3d 1259, 1260 (Fla. 2d DCA 2010) (concluding that an evidentiary hearing is warranted in a rule 3.850 motion where no transcript exists). As here, where a defendant files a facially sufficient motion alleging the trial court’s failure to warn of the deportation consequences to a plea, an evidentiary hearing is appropriate to test the defendant’s eligibility to withdraw the plea. Blanco v. State, 997 So.2d 1179, 1180 (Fla. 3d DCA 2008) (citing State v. De Armas, 988 So.2d 156, 158 (Fla. 3d DCA 2008)).

Accordingly, we reverse the postconviction court’s order and remand for further proceedings.

WHATLEY and DAVIS, JJ., Concur.

      . Gonzalez’s initial motion was filed August 25, 2008, and is timely, pursuant to State v. Green, 944 So.2d 208 (Fla.2006).


text:
    STATE of Florida, DEPARTMENT OF REVENUE, o/b/o, Kim R. LAW, Appellants, v. Douglas J. BROWN, Appellee.
    No. 1D09-3842.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellants.
    Nancy Jones Gaglio, Panama City, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s responses to the Court’s orders of October 20, 2009, and January 12, 2010, the Court has determined that the Order Granting Motion to Apply Credit is not a final ap-pealable order. See Malu v. City of Gainesville, 872 So.2d 445 (Fla. 1st DCA 2004) (holding that order granting motion for summary judgment and determining that “final judgment shall be entered” is insufficient to demonstrate an unequivocal completion of the lower tribunal’s judicial labor). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    Kendra Laquiesta COLLIER, Wife, Appellant, v. Jaharii COLLIER, Husband, Appellee.
    No. 1D09-4639.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Aaron Makofka of Makofka & Makofka, Jacksonville, for Appellant.
    Anwar O. Snober, Jacksonville, for Ap-pellee.
   PER CURIAM.

Kendra Laquiesta Collier, former wife, appeals that portion of the circuit court’s final judgment of dissolution in which the court determined that the minor child would spend the majority of her time with her father in North Carolina rather than with her mother in Wisconsin. We reverse.

It was undisputed that the child had lived with her parents in North Carolina and then, after their separation, with her mother in Wisconsin, during the six months before the former husband commenced the dissolution proceeding in Du-val County, where he is a legal resident. Accordingly, under section 61.514, Florida Statutes (2008), of the Uniform Child Custody Jurisdiction and Enforcement Act, Florida was not the child’s home state and the circuit court did not have jurisdiction to make an initial child custody determination. See, e.g., In re: D.N.H.W., 955 So.2d 1236 (Fla. 2d DCA 2007); Benson v. Evans, 901 So.2d 893 (Fla. 4th DCA 2005).

REVERSED and REMANDED for entry of an order consistent with this opinion.

WEBSTER, PADOYANO, and ROBERTS, JJ., concur.


text:
    Jonathan BISHOP, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0518.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Shannon H. Padgett of Dale Carson Law, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on November 17, 2009, in Duval County Circuit case number 16-2007-CF-017181-BXXX-MA is granted. See Williams v. State, 937 So.2d 1135 (Fla. 1st DCA 2006). Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). The court notes that pursuant to the lower tribunal’s order of January 22, 2010, the Public Defender has been appointed to represent petitioner on appeal.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    Ronald Lee ISAAC, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-972.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Andrew F. Rier, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before GERSTEN and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

As the issues raised on appeal were not properly preserved for appellate review and/or do not rise to the level of fundamental error, we affirm the defendant’s convictions and sentence. See Simpson v. State, 3 So.3d 1135, 1146 (Fla.2009); Suarez v. State, 694 So.2d 161 (Fla. 3d DCA 1997).

Affirmed.