Florida Criminal Law Opinions

Willie F. Walker, Appellant, vs. The State of Florida, Appellee.

No. 3D05-12

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Miami-Dade County, Pedro Echarte, Judge. Lower Tribunal No. 03-19572.

DISPOSITION:  

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

COUNSEL:   Bennett H. Brummer, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.

JUDGES:   Before GERSTEN, C.J. and COPE, J., and SCHWARTZ, Senior Judge.

OPINION BY:   COPE

OPINION  

COPE, J.

Willie Frank Walker appeals his convictions for attempted second degree murder and other offenses. We affirm in part and reverse in part.

Defendant-appellant Walker contends that the trial court erred by allowing the prosecution to introduce a 911 tape of a call made by a neighbor asking the police to send an officer to investigate what sounded like a domestic disturbance in the apartment of defendant-appellant Walker. The trial court correctly overruled the defense objection which was based on the Confrontation Clause of the United States Constitution. See Davis v. Washington, 126 S. Ct. 2266 (2006).

The defendant also objected that, owing to an evident delay in the neighbor’s placing of the 911 call, the tape  [*2]  did not qualify as a spontaneous statement or excited utterance under the Evidence Code. See § 90.803(1),(2), Fla. Stat. (2004). Assuming for purpose of discussion that there was any error, the statement made by the caller was harmless beyond a reasonable doubt, in view of the other evidence in the case. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

On the 911 tape, the neighbor said that he could hear screaming and this had been occurring off and on all day. When police officers arrived, they found the victim bloody and badly injured all over her body, with visible scarring remaining at the time of trial.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The defense argues that it was a double jeopardy violation to convict the defendant in count two of kidnapping and in count three of attempted felony murder. The first step of the double jeopardy analysis is to inquire “whether each offense has an element that the other does not.” Gordon v. State, 780 So. 2d 17, 20 (Fla. 2001) (citations omitted); § 775.021(4)(a), Fla. Stat. (2003). n2 For this analysis we look solely to the statutory elements of each crime. Gordon, 780 So. 2d at 20.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2

The crime date for these counts was July 11, 2003.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

We conclude that each offense has a statutory  [*3]  element the other does not. For kidnapping under subparagraph 787.01(1)(a)3., the defendant must forcibly, secretly, or by threat confine, abduct, or imprison the victim against his or her will, without lawful authority, with intent to inflict bodily harm upon or terrorize the victim. n3 While confinement is required, there is no requirement for an overt act which inflicts bodily harm or terrorizes the victim. All that is required is the intent to inflict bodily harm or terrorize.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3

Subsection 787.01(1), Florida Statutes (2003), provides:

(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage.

2. Commit or facilitate commission of any felony.

3. Inflict bodily harm upon or to terrorize the victim or another person.

4. Interfere with the performance of any governmental or political function.

(b) Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

For attempted felony murder,  [*4]  the statute requires that the defendant either perpetrate or attempt to perpetrate an enumerated felony. n4 The defendant must, in addition, commit, aid, or abet an intentional act that is not an essential element of the enumerated felony and that could, but does not, cause death. Attempted felony murder thus requires an overt act which could, but does not, inflict death. As the Florida Supreme Court said of the predecessor to this statute, “the Legislature clearly evinced its intent to create a new and substantive offense which is to be scored and sentenced separately from the enumerated felony . . . .” Gordon, 780 So. 2d at 22 n.5. We conclude that the two offenses have separate statutory elements.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4

Subsection 782.051(1), Florida Statutes (2003), provides:

(1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked  [*5]  in level 9 of the Criminal Punishment Code. Victim injury points shall be scored under this subsection.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The second step of the required double jeopardy analysis is to determine if any of the statutory exceptions are applicable. The exceptions are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.§ 775.021(4)(b), Fla. Stat. (2003).

As to exception 1, the elements of proof are not identical. As to exception 3, neither offense is a category 1 lesser of the other. See State v. Florida, 894 So. 2d 941, 947 (Fla. 2005).

As to exception 2, the case law inquires whether the two crimes involve the same “core offense” or “degree variant.” See State v. Florida, 894 So. 2d at 948 (citing Sirmons v. State, 634 So. 2d 153, 154 (Fla. 1994)). The crime of kidnapping punishes the defendant’s confinement of a person against his or her will. See Boyd v. State, 910 So. 2d 167, 184 (Fla. 2005). Attempted felony murder punishes the potential of the defendant’s act to cause death. See State v. Florida, 894 So. 2d at 949. These  [*6]  are different core offenses and are not degree variants of the same crime. We therefore conclude that there was no double jeopardy violation in convicting and sentencing the defendant on count two, kidnapping, and count three, attempted felony murder.

Finally, the defendant argues that it was a double jeopardy violation for him to be convicted in count one of attempted second degree murder and in count three of attempted felony murder. The defendant relies on Mitchell v. State, 830 So. 2d 944, 946-47 (Fla. 5th DCA 2002), which is on point. We agree with the Fifth District. We remand with directions to vacate the conviction and sentence either on count one or count three. The defendant need not be present.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

Share This

LORENZA SESSIONS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-2480

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

[August 29, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 03-21278 CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, Richard Valuntas and Katherine Y. McIntire, Assistant Attorneys General, West Palm Beach, for appellee.

JUDGES:   Polen, J. Stone and Gross, JJ., concur.

OPINION BY:   Polen

OPINION  

Polen, J.

Appellant Lorenza Sessions appeals a final judgment and conviction for attempted first degree murder. Following a day of drinking and partying, Sessions assaulted his girlfriend after becoming suspicious that she was cheating on him. Sessions and his girlfriend had a prior altercation the same day at a party they both attended and Sessions left the party. The second assault, which was much more serious, occurred when the girlfriend came home. Sessions did not put up a fight when arrested and told the officers he “did what I had to do.” Sessions was sentenced to life in prison. Sessions specifically appeals the trial court’s denial of his motion to discharge court-appointed counsel and the denial of his motion for continuance after he chose  [*2]  to represent himself at trial. While we find no evidence that Sessions received ineffective assistance of counsel and affirm the trial court’s denial of his motion to appoint new counsel when his second attorney was discharged, we find merit in Sessions’ contention that the trial court erred in denying his motion for continuance.

“A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal.” Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991 ). “The common thread running through those cases in which a palpable abuse of discretion has been found is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense.” Weible v. State, 761 So. 2d 469, 472 (Fla. 4th DCA 2000 ) (quoting Smith v. State, 525 So. 2d 477, 479 (Fla. 1st DCA 1988 )). There are seven factors to be considered by the trial court when ruling upon a motion for continuance:

(1) the time actually available for preparation,

(2) the likelihood of prejudice from the denial,

(3) the defendant’s role in shortening preparation time,

(4)  [*3]  the complexity of the case,

(5) the availability of discovery,

(6) the adequacy of counsel actually provided, and

(7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime.D.N. v. State, 855 So. 2d 258, 260 (Fla. 4th DCA 2003).

During the period leading up to his trial, Sessions made several motions to discharge his court-appointed counsel. The trial court held a Nelson n1 hearing three days before the trial was scheduled to begin. Sessions asserted that counsel failed to research and prepare a defense based on the theory that Sessions had been in a diabetic rage, and failed to depose a security guard who witnessed the prior altercation. Sessions alleged he did not know he was diabetic until after he had been arrested and alleged he would not have been drinking all day on the day of the crime had he known that. Sessions asserted he had talked to doctors who told him that high sugar levels can “make you have rages and also can cause temporary memory loss.”

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Counsel responded to these allegations by asserting that he did not take the security guard’s deposition because as a matter  [*4]  of trial strategy, it would hurt Sessions’ case as the State could then use it to establish Sessions’ motive. With regard to an incapacity defense caused by diabetes, counsel asserted he had spoken to a doctor about it and the doctor indicated this was an absurd idea.

The trial court determined there was no “specific serious deficiency of [counsel’s] efforts on your behalf measurably below that of [a] professionally competent attorney.” Sessions insisted he wanted to represent himself and the trial court questioned him to determine his competency. Throughout the questioning, Sessions admitted he did not know what he was doing, but insisted he did not want his court-appointed counsel to represent him and would have to learn trial procedure as he went along. The trial court told Sessions if it granted his motion, no other attorney would be appointed to represent him. Sessions asked for a continuance to give him time to prepare and to request legal assistance from an agency in Miami. The trial court granted the motion to discharge counsel but informed Sessions the case would not be continued and the trial would begin on Monday.

On the day of trial, Sessions made the following statement  [*5]  to the trial court:

I don’t see how you can find me competent to defend myself even though my lawyer withheld evidence, didn’t try to get evidence, I’m a diabetic, didn’t get my medical record being a diabetic to do with a lot of my charges. . . .I have the right for a proper trial and legal counsel.The trial court reminded Sessions that this was all discussed at the earlier hearing and urged Sessions to use his court-appointed counsel. Sessions refused, again asked for a continuance, and asked that counsel give him the records of his case. Counsel, who was present despite being discharged, responded that he had already given Sessions all the discovery in the case and would supply Sessions with copies of the depositions that he had already given to Sessions. At this point the State asked the trial court to reconsider its decision not to appoint new trial counsel but the trial court declined. Sessions reiterated his request for new counsel and continuances throughout the trial.

“[A] defendant’s invocation of the right to choose his own attorney may not be made in bad faith or ‘for the sake of arbitrary delay or to otherwise subvert judicial proceedings.’” Foster v. State, 704 So. 2d 169, 173 (Fla. 4th DCA 1997 ).  [*6]  When denying Sessions’ motion for continuance, the trial court did not make any findings that Sessions was seeking to delay the trial or making the request in bad faith. While the trial court pointed out that there had been six continuances granted in the course of the case, there was no indication in the record how many of those continuances were due to requests on Sessions’ part. The outcome of the Nelson inquiry, three days prior to trial, meant that Sessions had essentially three days to prepare his defense and obtain his medical records.

While “there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance,” we find this was not an adequate length of time to allow for a pro se litigant’s preparation of a defense. Cox v. State, 354 So. 2d 957, 958 (Fla. 3d DCA 1978 ). The State argues that the trial court’s prior denials of his motions to discharge should have put him on notice that the trial court would deny the last motion. While Sessions had been protesting counsel’s representations at other points leading up to the Nelson inquiry, this does not lead to the conclusion that he should have been  [*7]  aware that the trial court was likely to allow him to discharge counsel and represent himself without adequate time to prepare his defense.

While Sessions’ proposed defense that he was in a diabetic rage may be at the outside realm of believability, it was his only defense in a case that was factually against him and might have resulted in the conviction of a lesser included offense. By not allowing him adequate time to either prepare his own defense or obtain private counsel, we find the trial court violated his due process rights. The State itself asked the trial court to appoint new counsel for Sessions, recognizing that he was ill-prepared to represent himself. While the trial court was within its rights in refusing to appoint new counsel, its denial of a continuance to allow Sessions time to prepare and present his affirmative defense to the jury was an abuse of discretion.

We reverse Sessions’ conviction and remand to the trial court for a new trial.

Stone and Gross, JJ., concur.

Share This

EDWARD CLARK, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-105

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; Daniel Lee Perry, Judge.

DISPOSITION:  

Reversed and remanded; conflict certified.

COUNSEL:   James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. DAVIS and WALLACE, JJ., Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

A jury found Edward Clark guilty of burglary, robbery, false imprisonment, aggravated battery, and battery. We affirm Clark’s judgment and sentence without comment on the two trial-related issues that he raised on appeal. However, we reverse as to four of the monetary charges imposed by the court at sentencing.

Clark preserved his challenges to the four monetary charges (variously denominated as surcharges, costs, or fines) in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days, so it is deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B), (b)(1)(B).

The first two items challenged by Clark are surcharges of $ 150 and $ 2 imposed under section 938.085, Florida Statutes  [*2]  (creating a surcharge to fund rape crisis centers), n1 and a court cost of $ 65 imposed under section 939.185, Florida Statutes (creating an “additional court cost” assessable by the board of county commissioners). Section 938.085 became effective on July 1, 2003. See ch. 2003-114, §§ 3, 5, Laws of Fla. Section 939.185 became effective on July 1, 2004. See ch. 2004-265, §§ 88, 109, Laws of Fla. The offenses of which Clark was convicted occurred on October 18, 2002. This court’s precedent precludes the imposition of these two costs because the authorizing statutes became effective after the date of the offenses. See Griffin v. State, 946 So. 2d 610, 614-15 (Fla. 2d DCA 2007). On remand, the $ 152 surcharge and the $ 65 cost shall be stricken.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

The statute actually imposes a surcharge of $ 151.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The third item challenged by Clark is $ 150 and $ 130 in prosecution and sheriff’s investigative costs imposed pursuant to section 938.27, Florida Statutes (2002). Clark alleges two errors with respect to these costs: that there was no request for costs from the two relevant agencies, see § 938.27(1), and that the court failed to consider Clark’s financial resources and ability to pay, see § 938.27(5).  [*3]  n2 Our precedent requires that costs imposed under the 2002 version of section 938.27 be stricken when either of these conditions has not been satisfied. See, e.g., Taylor v. State, 821 So. 2d 404, 405 (Fla. 2d DCA 2002) (no request for costs); Thibault v. State, 945 So. 2d 646, 647 (Fla. 2d DCA 2006) (court’s failure to inquire into defendant’s financial resources). On remand, the court shall strike the two costs but may reimpose them if the requisites of section 938.27, Florida Statutes (2002), are satisfied, in particular the requirements that the agencies request the costs and provide supporting documentation n3 and that the court considers Clark’s financial resources and ability to pay. See Taylor, 821 So. 2d at 405; Thibault, 945 So. 2d at 647.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2

The second requirement was deleted effective July 1, 2003. See ch. 2003-402, §§ 127, 155, Laws of Fla. 3

The 2002 version of section 938.27 provides that investigative costs shall be assessed “if requested and documented” by the relevant agencies. The words “and documented” were deleted from the statute as of July 1, 2003. See ch. 2003-402, §§ 127, 155, Laws of Fla.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Finally, Clark challenges the imposition of a $ 50 fine pursuant to section 775.083(2), Florida Statutes.  [*4]  The 2002 version of this statute reads, in pertinent part:

The fine is $ 50 for a felony and $ 20 for any other offense. When the defendant enters the plea or is convicted or adjudicated, in a court in that county, the court may order the defendant to pay such fine if the court finds that the defendant has the ability to pay the fine and that the defendant would not be prevented thereby from being rehabilitated or making restitution.§ 775.083(2)(b) (emphasis added). n4 As with the previous cost item, on remand the trial court shall strike the $ 50 fine but may reimpose it if the court finds that Clark has the ability to pay. See Gonzalez v. State, 939 So. 2d 224, 225 (Fla. 2d DCA 2006).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4

This statute was amended effective July 1, 2003, such that the factual findings on the defendant’s ability to pay are no longer required. See ch. 2003-402, §§ 117, 155, Laws of Fla. Additionally, the charge is called a “court cost” in the amended statute. § 775.083(2), Fla. Stat. (2004).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

As we did in Griffin v. State, 946 So. 2d at 614-15, we certify conflict with Ridgeway v. State, 892 So. 2d 538 (Fla. 1st DCA 2005) (concluding that imposing the cost required by section 939.185 on a defendant who committed  [*5]  his crime before its effective date did not violate the constitutional prohibition against ex post facto laws).

Reversed and remanded; conflict certified.

DAVIS and WALLACE, JJ., Concur.

Share This

JAMES BAIN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5186

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Roger Allan Alcott, Judge.

DISPOSITION:  

Affirmed in part, reversed in part, and remanded.

JUDGES:   SALCINES, Judge. SILBERMAN and KELLY, JJ., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

James Bain appeals the summary denial of his motion for DNA evidence examination and his pro se motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the postconviction court’s denial of the motion for DNA evidence examination. We reverse the denial of the Bain’s pro se motion for DNA testing and remand for further proceedings.

On May 23, 1974, Bain was convicted of rape, burglary with an assault, and kidnapping after a jury trial. On September 30, 2003, Bain filed a rule 3.853 motion, which the postconviction court dismissed without prejudice to Bain filing a facially sufficient motion. On May 23, 2006, more than two years later, Bain filed the rule 3.853 motions that are the subject of this appeal. In summarily denying both motions, the postconviction court found that they were untimely, in part because Bain’s delay in refiling was an abuse of process.

However, due to an amendment to section 925.11, Florida Statutes,  [*2]  enacted on June 23, 2006, no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005. See Ch. 2006-292, §§ 1, 4, at 2204-7, Laws of Fla. (codified in § 925.11, Fla. Stat. (2006)). Moreover, in dismissing Bain’s 2003 rule 3.853 motion without prejudice, the postconviction court set no filing deadline. Consequently, the postconviction court erroneously denied the 2006 motions as untimely. See Jumper v. State, 903 So. 2d 264 (Fla. 2d DCA 2005) (holding that postconviction court could not deny a refiled rule 3.850 motion as untimely when postconviction court did not set a filing deadline in dismissing defendant’s first rule 3.850 motion without prejudice to refiling.)

Because Bain timely filed his pro se motion for DNA testing the postconviction court should have addressed the motion on the merits. Accordingly, on remand, the postconviction court shall require the State to respond and, if necessary, hold an evidentiary hearing in this matter. See Fla. R. Crim. P. 3.853; Girley v. State, 935 So. 2d 55 (Fla. 1st DCA 2006).

Although Bain’s motion for DNA evidence examination also was timely, it is facially insufficient. Ordinarily, a facially  [*3]  insufficient rule 3.853 motion should be dismissed or denied without prejudice to the refiling of a facially sufficient motion. See, e.g., Harvey v. State, 925 So. 2d 1111 (Fla. 2d DCA 2006); Lemay v. State, 921 So. 2d 853 (Fla. 2d DCA 2006); Scarborough v. State, 906 So. 2d 379 (Fla. 2d DCA 2005). However, Bain requests the same relief for the same reasons in both motions. In light of our holding on Bain’s pro se motion for DNA testing, we affirm the postconviction court’s denial of Bain’s motion for DNA evidence examination.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and KELLY, JJ., Concur.

Share This

DONNA WOLF REYNOLDS, Petitioner, v. STATE OF FLORIDA, Respondent.

Case No. 2D07-574

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Peter F. Estrada, Judge.

DISPOSITION:  

Petition granted and order quashed.

COUNSEL:   William B. Fletcher of Fletcher & Pipkin, an association of P.A.s, Sebring, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.

JUDGES:   SILBERMAN, Judge. WHATLEY, J., and ANDREWS, HORACE A., ASSOCIATE SENIOR JUDGE, Concur.

OPINION BY:   SILBERMAN

OPINION  

Petition for writ of certiorari from the Circuit Court for Highlands County

SILBERMAN, Judge.

Donna Wolf Reynolds seeks certiorari review of a nonfinal order denying a motion for a protective order and to quash a subpoena. The subpoena required her insurance company to produce a transcript of an examination under oath that Reynolds submitted to for her insurance company. We grant the petition on the basis of the attorney-client privilege.

On May 25, 2006, the State charged Reynolds with throwing a deadly missile into an occupied vehicle and aggravated battery based on an incident that occurred on April 27, 2006. Florida Farm Bureau (FFB) insures Reynolds, and the policy may provide coverage to her for civil damages that the other individual in the April incident allegedly suffered. As part of its investigation of the incident,  [*2]  FFB invoked the terms and conditions of its policy with Reynolds and required her to submit to an examination under oath. Present at the examination under oath on July 31, 2006, were Reynolds, her criminal defense counsel, William Fletcher, and the FFB claims adjuster. Fletcher objected to the examination under oath and initially attempted to invoke Reynolds’ Fifth Amendment right against self-incrimination, but then he allowed her to answer the questions. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

FFB’s counsel recognized at the hearing on the motion for protective order and to quash subpoena that Reynolds answered the questions because she “understood that if she did not sit for the examination under oath that she would be potentially waiving her insurance coverage.”
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

After learning that FFB had conducted an examination under oath, the State issued a subpoena duces tecum to FFB and sought the transcript of the examination for use in the criminal prosecution. FFB and Reynolds objected to the production of the transcript, and FFB filed a motion, in which Reynolds joined, citing the work-product and attorney-client privileges and also asserting the Fifth Amendment privilege against self-incrimination. After a hearing, the  [*3]  trial court denied the motion for protective order and to quash the subpoena and ordered FFB to release the transcript to the State. In its order, the court addressed the work-product privilege and the Fifth Amendment privilege but failed to address the attorney-client privilege. On certiorari review, Reynolds claims that the attorney-client privilege is applicable and that the trial court should have quashed the subpoena.

To be entitled to certiorari relief regarding a nonfinal order granting discovery, the petitioner must show ” ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.’ ” Fassey v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). Prongs two and three of the test are jurisdictional. Id. Here, the jurisdictional prongs are met in that disclosure of the transcript of the examination under oath would result in material injury that cannot be corrected on postjudgment appeal. Thus, the issue is whether the trial court departed from the essential requirements  [*4]  of the law in allowing the discovery.

We note that the State is incorrect in its assertion that Reynolds did not raise the issue of attorney-client privilege before the trial court. In FFB’s motion and at the hearing on the motion, counsel for FFB addressed the attorney-client privilege based upon Fletcher, Reynolds’ criminal defense counsel, being present at the examination under oath. During the hearing, FFB’s counsel also argued that the attorney-client privilege was not waived. Fletcher, who was present at the hearing, argued the Fifth Amendment privilege. At Fletcher’s request, the court allowed the parties ten days to provide memoranda and additional case law.

Reynolds’ counsel filed a memorandum, arguing that the trial court should quash the subpoena duces tecum “because the material requested constitutes attorney client privileged communications.” Counsel quoted from Vann v. State, 85 So. 2d 133, 138 (Fla. 1956) (quoting J.E. Macy, Annotation, Privilege of Communications or Reports Between Liability or Indemnity Insurer and Insured, 22 A.L.R.2d 659, 660 (1952)), including the following portion:

“According to the weight of authority, a report or other communication made by an insured  [*5]  to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney so defending him.“(Emphasis added.) Reynolds’ counsel added that “[t]he policy does require the company to defend her and the communication is intended for the information or assistance of the attorney in defending her.” In FFB’s original motion in which Reynolds joined, FFB asserted that the examination under oath “was taken as part of FFB’s investigation of the alleged incident.” FFB also noted that the examination “was taken in part to determine whether the insurer, FFB, might deny coverage or reserve its rights[.]”

Section 90.502, Florida Statutes (2006), provides that communications between a client and a lawyer for the purpose of the client obtaining legal services or the lawyer rendering legal services are privileged, with narrow exceptions. In Vann, the Florida Supreme Court recognized that a communication from the insured to the  [*6]  liability insurance company is privileged if the communication is intended for the purpose of assisting the insurance company’s attorney in defending the insured. 85 So. 2d at 138. Vann did not state that it involved an examination under oath, and neither did Staton v. Allied Chain Link Fence Co., 418 So. 2d 404 (Fla. 2d DCA 1982), the other case that Reynolds relies upon in her petition. However, these cases stand for the general proposition that included within the attorney-client privilege are communications the insured makes to the insurer for its use to fulfill its obligation to defend on the insured’s behalf. Vann, 85 So. 2d at 138; Staton, 418 So. 2d at 405-06.

In Grand Union Co. v. Patrick, 247 So. 2d 474 (Fla. 3d DCA 1971), the plaintiff sought production of an accident report that the insured provided to the insurance company regarding the plaintiff’s fall on the insured store’s premises. Citing Vann, the court held that the report was privileged because it was made by the insured “to its insurer, for investigation by the latter incident to fulfillment of its obligation to defend on behalf of the insured.” Id. at 474. The Grand Union court explained as follows:

The principle  [*7]  under which such reports by an insured to its insurer are privileged is that they are considered relevant to defense of the action and in effect are communications between attorney and client, being information which is to benefit the defense of the cause by counsel, passing through the insurer to counsel.Id.; see also 17A Lee R. Russ, et al., Couch on Insurance 3d § 250:19 (2000) (citing Vann and Grand Union as representing “[w]hat appears to be a majority view . . . that the attorney-client privilege applies to communications between an insured and its liability or indemnity insurer as to an incident possibly giving rise to liability covered by the policy”).

We recognize that the circumstances of FFB’s examination of Reynolds may reflect some adversarial characteristics. The presence of Reynolds’ criminal defense counsel and his initial attempt to invoke his client’s Fifth Amendment rights lends an adversarial element to the communications regarding whether coverage exists. But Reynolds ultimately submitted to the examination under oath to comply with her obligations under the insurance policy. The examination is part of the insurer’s fact-gathering for the dual purposes of (1) defending  [*8]  the insured and (2) determining whether the policy covers the incident giving rise to the claim against the insured. If the insurer denies its duty to defend or denies coverage, then a true adversarial relationship may exist. Here, Reynolds gave the examination under oath as required in a cooperative effort between the insured and the insurer. Pursuant to Vann, Stanton, and Grand Union, the attorney-client privilege is applicable under these circumstances.

Therefore, we conclude that the trial court departed from the essential requirements of the law in allowing the discovery. We grant Reynolds’ petition and quash the trial court’s order that requires FFB to release the transcript of the examination under oath.

Petition granted and order quashed.

WHATLEY, J., and ANDREWS, HORACE A., ASSOCIATE SENIOR JUDGE, Concur.

Share This