Do Civil Appeal Harmless Error Findings Require Special Consideration?

Kristen Larson

In Special v. West Boca Medical Center (SC11-2511), the Florida Supreme Court held that the Fourth District Court of Appeal erred in ruling that an error which “more likely than not” did not contribute to the verdict was therefore harmless in a civil appeal. The Court stated that the “test for harmless error requires the beneficiary of the error to prove that there is no reasonable possibility that the error complained of did not contribute to the verdict.” Special v. W. Boca Med. Center, (SC11-2511).

In 2003, Frank Special’s wife, Susan Special, died shortly after giving birth. Susan delivered via C-section, with spinal anesthesia being administered prior to the start of the surgery. Shortly after the placenta was removed she went into cardiac arrest. Although she was resuscitated, she died following another cardiac arrest a few hours later. Frank Special then filed suit against the anesthesiologist (Baux) and hospital (West Boca) alleging that their negligence caused his wife’s death. The defendants claimed that Susan’s death was caused by amniotic fluid embolism (AFE), an allergic reaction when her blood mixed with the amniotic fluid. Both sides presented conflicting expert testimony and the jury found that the defendants were not liable for her death.

Frank Special appealed the decision citing two specific errors: “(1) the exclusion of the proffered testimony of Dr. Gary Dildy, the defense AFE expert; and (2) the exclusion of evidence related to the alleged witness tampering of Dr. Barbara Wolf, the chief deputy medical examiner.” Op. at 5. In regards to the former, Special argued that the jury had been improperly precluded from considering cross-examination testimony regarding a potential over-diagnosis of AFE at the hospital. In regards to the latter, Special argued that he was improperly denied the opportunity to offer evidence that the defense had attempted to intimidate Dr. Wolf (who had performed the autopsy) into altering her testimony by filing a complaint with the Department of Health and through comments made to her attorney by their counsel because she concluded that Susan had not died from AFE. The Fourth DCA applied the “more likely than not” test, deciding that the defendants had met this burden and that the errors were therefore harmless.

The Supreme Court began by referencing section 59.041, Florida Statutes, which states that an error shall be held harmless unless it results in a “miscarriage of justice”. Due to the nature of this test, harmless error is decided on a case-by-case basis. The Court then discussed State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), which established the criminal harmless error test and held that the beneficiary of the error had the burden of proving that there was “no reasonable possibility” that the error resulted in conviction. In order for this to be applied correctly, a court must examine the effect of the error on not only the result, but also on the trier-of-fact. The Court concluded that the DiGuilio “no reasonable possibility” test is appropriate in civil cases as well (substituting “conviction” for “verdict”) because it maintains the “integrity of the process” while also conserving judicial resources, as required by section 59.041, Florida Statutes. Op. at 10.

In reference to the first of the two specific errors cited by Special (the cross examination of the AFE expert), the Court found that the error was not harmless. The Court, quoting the 4th DCA, found that “where the diagnosis is one of exclusion, the frequency with which one comes to that conclusion is a ‘material fact’ bearing upon the credibility of the diagnosis.” Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011). The Court rejected the defendants’ claim that the ability of Special to address the issue during closing arguments negated the effect of precluding the evidence and found that the exclusion of the evidence “hindered Special’s efforts to undermine the credibility” of the central defense offered by Baux and West Boca.

In reference to the second error cited by Special (alleged witness tampering), the Court found that the evidence regarding the Department of Health complaint was correctly precluded because there was an “insufficient factual basis” to attribute the complaint to either of the defendants. However, the Court found that Dr. Wolf’s witness tampering testimony (that she had been informed by her attorney of opposing counsel’s recommendation that she alter her medical testimony in order to avoid being embarrassed when their expert testified to a contrary conclusion) should have been admitted because, as stated in Jost v. Amad, 730 So. 2d 708 (Fla. 2d DCA 1998), excluding testimony of witness tampering would be “fundamentally unfair” and the “threshold question is whether the matter is relevant.” The Court found that Special should have been allowed to introduce the evidence because Dr. Wolf did in fact understand the communications as an attempt at intimidation and because the issue was relevant.

Therefore, the Court reversed the district court’s decision and remanded for further proceedings.

Court Orders Release of Documents in Redistricting Case

John Koeppel

On November 13, the Florida Supreme Court affirmed a trial court ruling which ordered Data Targeting, Inc., its president Pat Bainter, and others (collectively, “non-parties” or “Bainter”) to produce 538 pages of documents subpoenaed in a challenge to the constitutional validity of the Florida Legislature’s 2012 congressional redistricting plan, and held that “any objection to the production of these documents based on a qualified First Amendment privilege has been waived.” Bainter et al. v. League of Women Voters, et al. (SC14-1200). The Court accepted jurisdiction of the appeal of the trial court’s discovery orders after the First District Court of Appeal, in an en banc opinion, passed the appeal directly through to the Florida Supreme Court, per Art. V, § 3(b)(5), Fla. Const. Non-Parties v. League of Women Voters of Fla., 39 Fla. L. Weekly D1300, 2014 WL 2770013 (Fla. 1st DCA June 19, 2014).

The Court reached its conclusion “based on the totality of the circumstances,” which “clearly and conclusively demonstrated the inexcusable delay of non-parties Pat Bainter and his political consulting firm, Data Targeting, Inc., in asserting this qualified privilege.” (Op. at 36).

The Court noted that non-parties received multiple subpoenas duces tecum seeking the documents in question, followed by over six months of hearings and filings seeking same. Bainter, having failed to file a motion for a protective order or raise any legal objection, attended a deposition where “he affirmatively testified under oath that he had conducted ‘a thorough search’ for documents in response to the subpoena and had produced what he found.” Non-parties’ objection to the request for the remainder of the documents was “based solely on the claimed irrelevancy and burdensome nature of the discovery requests.”

“Not until the day after the trial court held the non-parties in contempt of court and ordered them to pay attorney’s fees for failing to produce the documents did the words ‘First Amendment’ appear for the first time in a filing or a hearing transcript in the trial court.”

Accordingly, the Court held that, “based on the totality of the circumstances,” non-parties’ asserted qualified First Amendment privilege had been waived.

The Court also noted that it remains “committed to the principle that ‘all trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records.’” Citing Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 114 (Fla. 1988). Accordingly, the Court ordered that previously sealed transcripts as well as the documents themselves be unsealed and made part of the public record.

When is a Suspicion Founded Sufficiently to Support a Detention?

Kristen Larson

Earlier this month the Florida Supreme Court heard Williams v. State. (SC13-2315). The central issue in this case is whether the Fourth District Court of Appeals erred in affirming the trial court’s admission of evidence that was obtained when a police officer stopped Williams without, as Williams contends, the required reasonable suspicion, based on the totality of the circumstances, to make such a stop.

The facts of the case are as follows: An experienced narcotics officer was conducting an active investigation of an individual in a car where he had seen a crack cocaine pipe in plain view. Williams approached the vehicle to speak with the individual. When the officer acknowledged Williams, Williams began walking away with a closed fist. The officer then attempted to stop Williams, at which point Williams turned around and a bag of cocaine fell out of his hand.

Williams argued that he was detained when the evidence was discovered and that the officer did not have the requisite suspicion to detain him. Williams’s argument that he was detained is based on Dees v. State, 564 So. 2d 1166, 1167 (Fla. 1st DCA), which states that detention occurs when a reasonable person no longer feels free to leave. To make such a stop the officer must have a founded suspicion based on the totality of the circumstances surrounding the stop. Williams argued that merely speaking to an individual in a parked car, with a clenched fist, was not enough for a founded suspicion. Further, Williams cited to Hollinger v. State, 620 So. 2d 1242 (Fla. 1993), which held that contraband dropped during an illegal stop must be suppressed. Therefore, Petitioner contends that the evidence obtained from the illegal seizure should have been suppressed.

The State contended that Williams approached a person who was under active investigation by the officer, thus distinguishing this case from the cases cited by Williams. Further, the State argued that the reviewing court should defer to the trial court’s decision when a trial court hears a motion to suppress, and that the officer had founded suspicion because: “1) it was 1 a.m. in a dark parking lot; 2) an ongoing criminal investigation was occurring after a crack pipe had been discovered; 3) Petitioner [Williams], in the immediate presence of the police, began to engage the subject of the investigation who was being detained; and, 4) when asked what he was doing turning to the inquiring police officer and began to walk away with a clenched fist.” (Ans. Br. At pg 13). Thus, in light of the officer’s experience, the state argued that the totality of the circumstances supported a finding of a reasonable suspicion. Alternatively, the State asked the Court to consider whether the drop happened before the stop, thus making the evidence obtained not subject to the founded suspicion requirement.

Video of the argument is available here.

Court Amends Florida Rules of Appellate Procedure

Jacek Stramski

On November 6, the Florida Supreme Court adopted changes to a number of the Florida Rules of Appellate Procedure. In re: Amendments to the Florida Rules of Appellate Procedure (SC14-227). Some changes of note:

Rule 9.020(i) was amended “to eliminate the language providing that postjudgment motions are abandoned upon the filing of a notice of appeal, [and instead] allow an appeal to be held in abeyance until disposition of a postjudgment motion.”

Rule 9.100 was amended to reflect that appellate courts have “the discretion to request a response to a petition for writ of prohibition without bringing the proceedings in the lower tribunal to a halt…”

Rule 9.110(k), which relates to the appeal of partial final judgments, was amended to specify that “[a] partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.”

The Court also adopted an amendment to rule 9.420 to provide that the time of a filing of a pro se inmate will be presumed to be the time that the document is recorded by an institution as recieved for mailing if the institution has a legal mail system that records such a time.

Supreme Court Focuses on Judicial Discipline

Jacek Stramski

The last two weeks saw the Florida Supreme Court mete out discipline in two high profile cases involving judicial misconduct.

In Inquiry Concerning A Judge Re: Susan B. Flood (SC13-344), the Supreme Court adopted the recommendation of the Judicial Qualifications Commission (JQC) that Polk County Circuit Judge Flood be reprimanded for engaging in an inappropriate relationship with her bailiff, over whom she had supervisory authority. The Court noted that a reprimand was appropriate, because even though the judge “violated Canons 1 and 2A, which require a judge to act at all times in a manner that upholds the integrity of the judiciary and to avoid the appearance of impropriety,” the judge admitted wrongdoing and has an otherwise unblemished record of judicial service. Allegations in this case have been previously discussed at the ABAJournal.com here and here.

In late October, the Supreme Court removed Leon County Judge Judith Hawkins from the bench. (SC11-550). The findings of fact made by the JQC, adopted by the Court, included findings that Judge Hawkins used her office, including computers and the services of her judicial assistant, to run a private business in the form of selling a self-published book, that the judge did not devote her full time to judicial duties, and that the judge tampered with and concealed evidence from the JQC during its investigation. The JQC recommended a reprimand, suspension without pay for three months, and a fine of $17,000, but the Court found that the misconduct engaged by Judge Hawkins was so egregious that removal from the bench was necessary.

Do Statutory Prevailing Party Attorney Fees Apply in Lawsuits Under Local Law Pension Plans?

Regina Keenan

The Florida Supreme Court in Board of Trustees of the City Pension Fund for Firefighters & Police Officers in the City of Tampa v. Parker (SC 12-890) held that parties that prevail on claims for benefits under local law pension plans are entitled to attorney fees under ss. 175.061(5) and 185.05(5), Fla. Stat. (2004). The Court held that this is true even if those benefits exceed the minimum requirements of ch. 175 (firefighter pensions) and 185, Fla. Stat. (police pensions) (2004).

The Court quashed the decision of the Second District Court of Appeal below, which stated that the Florida Legislature did not intend pension plans, established by special law for one jurisdiction, to apply to statewide attorney fee provisions. Board of Trustees of the City Pension Fund for Firefighters & Police Officers in the City of Tampa v. Parker, 113 So. 3d 64 (Fla. 2d DCA 2013). Justice Canady, in his dissent, agreed that attorney fees should not be applicable to local pension plan requirements because they go beyond required minimum benefits of ch. 175 and 185, Fla. Stat. (2004).

Sections 175.061(5) and 185.05(5), Fla. Stat. (2004), each state that, “[i]n any judicial proceeding or administrative proceeding under chapter 120 brought or pursuant to the provisions of this chapter, the prevailing party shall be entitled to recover the costs thereof, together with reasonable attorney’s fees.” (Emphasis added.)

The Court determined that “pursuant to” was broad language indicating that the Florida Legislature intended to cover local pension plans because those plans exist and operate within the framework established by ch. 175 and 185, Fla. Stat. (2004). The Court noted this legislative framework is supported by ss. 175.061(6) and 185.05(7), Fla. Stat. (2004), as each provision contains prohibitions on the alteration of any general governance provisions of the section, including attorney fees.

The Constitutionality Of Law Enforcement’s Use Of Cell Phone Data To Track Suspects

Kristen Larson and Regina Keenan

In Tracey v. State (SC11-2254), the Florida Supreme Court held that a trial court erred in admitting evidence obtained from real time cell site location tracking which was not authorized by a court order, and regardless of any federal or state statutory provisions, is “within the purview of the Fourth Amendment [of the United States Constitution] for which probable cause was required.” This quashed the opinion by the Fourth District Court of Appeal (DCA) in Tracey v. State, 69 So.3d 992 (Fla. 4th DCA 2011).

In 2007, a confidential informant told law enforcement personnel that Tracey was selling cocaine. Based solely on this testimony, they obtained a court order allowing them to record the phone numbers of incoming and outgoing phone calls on Tracey’s phone. Although the court order did not include real time cell site location information, the cell phone service provider included it with the other information. Law enforcement then used this information to track Tracey’s location, ultimately pulling him over after he picked up a drug shipment. Tracey was subsequently convicted of possession of over 400 grams of cocaine in addition to three lesser offenses related to his arrest.

The Fourth DCA upheld this evidence, stating that although the officers did not have the probable cause required to obtain a court order for the monitoring of the cell site location data, the arrest took place on a public road where it “could have been observed by the naked eye,” and therefore did not violate the Fourth Amendment.

TheSupreme Court disagreed, stating that with few exceptions, searches outside the judicial process are per se unreasonable under the Fourth Amendment. Fourth Amendment protections have become more important because advanced technology allows the government to locate persons of interest easily and at low cost. Because there is no United States Supreme Court case on this point, the Court examined whether there was a constitutionally protected, justified, reasonable, or legitimate expectation of privacy.

The Court noted that Justice Sotomayor, in United States v. Jones, 565 U.S. 945, 946 (2012) (Sotomayor, J., concurring), stated that location tracking, even for a short period of time, can reveal substantial amounts of information (e.g. political, professional, religious, and sexual associations) that may alter the citizen and government relationship in a way that is unfavorable to a democratic society (i.e. knowing that the government might be watching may chill associational and expressive freedoms). Jones also backtracks from the notion that simply sharing information with a third party is automatically a per se waiver of an individual’s Fourth Amendment rights. Here, Justice Canady and Justice Polson dissent with the Court’s conclusion that third-party disclosure is not applicable.

The Court then examined whether this meets the two-prong test in Katz v. United States, 389 U.S. 347 (1967) (that it is an objectively reasonable right to privacy if the individual manifested a subjective expectation of privacy and if society is willing to recognize that expectation as reasonable). The Court agreed that simply transmitting cell phone information – even if on a public road – is subject to an objectively reasonable expectation of privacy. The Court noted that a high risk of an inadvertent violation of the Fourth Amendment should not be placed on society, especially when a probable cause warrant is justified.

The Fourth Amendment protects people, not places, and the Court found that cell phones are personal “effects,”with a reasonable expectation of privacy due to their constant status as a virtual extension of the user. This view is supported by Riley v. California, 134 S.Ct. 2473, 2484 (2014), which states “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy.”

The Court did note that it was not reaching the issue of “exigent circumstances” or other bases for exception to the warrant requirements of the Fourth Amendment. Since the law enforcement personnel did not have probable cause and a probable cause warrant, they were not authorized to use the real time cell site location tracking and the evidence obtained from it is “subject to suppression.” Therefore, Tracey’s motion to suppress should have been granted.

Supreme Court Addresses Uninsured Motorist Insurance and Stacking Coverage

John Koeppel

On Thursday the Florida Supreme Court reversed a decision by the First District Court of Appeal regarding uninsured motorist (UM) insurance, Travelers Commercial Ins. Co. v. Harrington, 86 So. 3d 1274 (Fla. 1st DCA 2012), and held that a family vehicle exclusion in an automobile insurance policy was not invalid due to conflict with section 627.727(3), Fla. Stat. (2009); and that uninsured motorist benefits are not stackable under section 627.727(9) if the named insured or purchaser of the policy made a non-stacking election, as such a waiver applies on behalf of all insureds under the policy. Travelers Comm. Ins. Co. v. Harrington (SC12-1257).

Harrington, the plaintiff below, was injured in a car accident while traveling in her father’s car, driven with permission by a friend. As Harrington’s damages from the auto accident exceeded the combined liability payments from the bodily injury coverage provided by her mother’s Travelers policy and the driver’s separate policy with Nationwide, she also sought to recover stacked UM benefits she believed were available under her mother’s Travelers policy. Travelers, however, denied her claim on the ground that the vehicle in question was excluded from UM coverage pursuant to the “family vehicle exclusion” provision, which on its face excluded the vehicle in which Harrington was.

At the trial court, summary judgment was granted in favor of Harrington upon finding that the policy provision excluding family vehicles from UM coverage was invalid due to conflict with section 627.727(3)(b) and (c), Fla. Stat. The trial court also concluded that the waiver executed by the plaintiff’s mother, electing non-stacking UM, coverage did not apply to the plaintiff because Travelers did not obtain a knowing acceptance of the limitation of non-stacking UM coverage from the plaintiff personally.

On appeal, the First District affirmed the trial court’s ruling on both the coverage and stacking issues, but reversed the amount of the UM benefits awarded and the attorney’s fees awarded because “Travelers’ asserted other defenses which might impact the amount of the benefits due under the policy.” Harrington, 86 So. 3d at 1278.

The first question before the Florida Supreme Court was whether the family vehicle exclusion conflicts with subsection (b) or (c) of section 627.727(3), Fla. Stat.

The Court found that exclusion did not conflict with the statute. With respect to subsection (b), which defines an uninsured motor vehicle to include an insured vehicle with “limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages,” the Court reasoned that “the statute clearly states that the term ‘uninsured motor vehicle’ is subject to the terms and conditions of the policy,” and a policy may contain conditions affecting coverage so long as the conditions are unambiguous and consistent with the purposes of the statute.

In finding that the family vehicle exclusion did not conflict with section 627.727(3)(c), which defines an uninsured motor vehicle in part to include an insured vehicle that exclude from coverage if driven by a nonfamily driver, the Court reasoned that the policy does not exclude coverage for non-family members because “the Harrington’s liability policy, consistent with the purposes of subsection (3)(c), covers any person who drives, with permission, any of the vehicles insured under the policy, and also provides that an insured vehicle is considered uninsured for purposes of UM coverage if the liability policy excludes coverage for non-family members whose operation of the vehicle cause injury to the named insured or the named insured’s family.”

The second question before the Court was whether UM benefits are stackable under section 627.727(9) when the named insured and purchaser of the policy expressly elected non-stacking UM coverage, but the insured claiming the UM benefits did not expressly make a non-stacking election. The Court answered this question in the negative as well, as “the contract unambiguously stated that the coverage selection applied on behalf of all insureds under the policy.” Furthermore, “not only would this put the additional insureds in a better position than the named insured— giving them a benefit they did not pay for—but it also prevents the insurer from receiving the ‘reduced liability risk’ that they bargained for.” Lastly, the Court noted that UM coverage premiums are always calculated based on the coverage selected for the policy as whole rather than providing individualized UM coverage. As such, “the First District’s interpretation creates the potential predicament that individuals under the same policy will elect both stacked and non-stacked UM benefits, making the calculation of a single UM premium impractical, as well as virtually impossible.”

Accordingly, along with its holding that “the family vehicle exclusion does not conflict with section 627.727(3),” the Court held that “a waiver executed by the named insured electing non-stacking UM coverage is binding on all insureds under the policy under section 627.727(9).” Thus, family members seeking UM benefits are limited in the UM coverage available to them by the selection made by the family member that buys the insurance.

State is Generally not Entitled to Judicial Review of Orders Terminating Probation

John Koeppel

On October 16, the Court issued a ruling in a controversial case involving a notorious former school teacher who was charged with two counts of lewd or lascivious battery under section 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a fourteen-year-old middle school boy. The ruling reversed a decision by the Second District Court of Appeal in State v. LaFave, 113 So. 3d 31 (Fla. 2d DCA 2012), which reinstated the teacher’s probation after finding an abuse of discretion by the circuit court. (SC12-2232).

The central issue for review was whether, in the absence of a statutory right to appeal, the State may seek certiorari review of an order terminating probation if it can show that the circuit court departed from the essential requirements of the law by violating the plea agreement between the state and the defendant which called for no early termination. The Florida Supreme Court answered the question in the negative, quashing the decision of the Second District to reinstate her probation pursuant to her negotiated plea agreement.

At the hearing on LaFave’s Motion to Terminate Probation, LaFave argued that section 948.05, Fla. Stat. (2011), grants the trial court inherent jurisdiction to hear the motion and to reward defendants based on their successful completion, or substantial completion, of such strict probationary and community control terms, regardless of what the parties may have agreed to. The State argued that the trial court did not have jurisdiction to hear the motion, in light of the “no early termination” provision. The State further argued that even if the court had jurisdiction, the motion should be dismissed on the merits. The trial court granted LaFave’s motion, and the State petitioned for common law writ of certiorari with the Second District, which was granted.

The Second District acknowledged that the State had no right of appeal in this case, as section 924.07(1), Fla. Stat. (2011), and its procedural counterpart, Fla. R. App. P. 9.140(c), set forth the limited circumstances in which the State has such a right. LaFave, 113 So. 3d at 34. The Second District, however, observed that the trial court’s order “does not fall into the category of ‘final orders of dismissal’ that are not subject to certiorari review.” Id. at 36-37.

The Florida Supreme Court disagreed, and followed long-standing Florida jurisprudence supporting the conclusion that the State may only use a writ of certiorari to review a non-final order, or to review a final order of a circuit court acting in its review capacity. The Court found unpersuasive the Second District’s distinction between a “final” order and the order in this case, which it classified as a “rare, postsentencing order.” LaFave, 113 So. 3d at 37. The Court instead followed the general test of finality laid out in S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974), which is “whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.”

Although expressly recognizing the perceived inequality that the Second District sought to remedy, the Florida Supreme Court found that the district court lacked jurisdiction to grant the State’s petition, and noted that although the Second District’s order terminating LaFave’s probation may be classified as a “rare, postsentencing order,” it was a final order nonetheless.

Written Findings Required for Upward Departure in Sentencing under the Criminal Punishment Code

John Koeppel

On October 9th, the Florida Supreme Court clarified whether a trial court may impose a sentence on remand that departs from the Criminal Punishment Code where the trial judge failed to comply with the requirements of section 775.082(10), Fla. Stat. mandating the filing of written findings, both at the original sentencing and in response to the defendant’s motion under rule 3.800, Fla. R. Crim. P. Bryant v. State (SC12-1507). This case presents the first time the Court has considered the propriety of upward departure sentences after a court’s failure to provide written rationale since the CPC was enacted.

Bryant, found guilty of petit theft and felony petit theft, argued that section 775.082(10), Fla. Stat. (2009), requires a judge to enter a written order finding that imposition of a non-prison sentence presents a danger to the public, and that failure to comply with the written finding requirement, even after a rule 3.800(b)(2) motion raising the issue, precludes the trial court from imposing an enhanced departure sentence on remand. The State argued that resentencing is an entirely new proceeding where the trial court may depart so long as it complies with the statute.

The Second District held that because the trial court did not file written reasons to support the departure sentence, none were deemed invalid. Bryant v. State, 93 So. 3d 381 (Fla. 2d DCA 2012). The Florida Supreme Court reversed the decision of the Second District, and followed its earlier decision in Pope v. State, 561 So.2d 554 (Fla.1990), which equated the failure to provide written reasons with the failure to provide a valid reason for such a departure.

Thus, the Florida Supreme Court quashed the decision of the Second District Court in Bryant and approved the decision of the Fifth District Court in Goldberg v. State, 76 So. 3d 1072 (Fla. 5th DCA 2011), and held that a trial court may not impose a sentence that departs from the CPC on remand where the trial judge failed to file the appropriate written findings required by section 775.082(10), Fla. Stat. even if evidence in the record might support findings of fact to justify an upward departure.