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.

The Week in Review: Death Penalty Rulings Stand and Jurisdiction was Incorrectly Granted

Kristen Larson

In Davis v. State (SC13-6), the Florida Supreme Court denied the appellant’s arguments that his conviction and sentence of death should be overturned on the basis that: “(1) the trial court failed to remain neutral during the penalty-phase proceedings; (2) the trial court erred in rejecting the statutory mitigating circumstance that Davis committed the murder while under the influence of an extreme mental or emotional disturbance, and the trial court erred in weighing nonstatutory aggravating circumstances; (3) the trial court erred in finding the cold, calculated, and premeditated aggravating circumstance; (4) the trial court erred in finding the avoid arrest aggravating circumstance; (5) the trial court erred in giving the standard jury instruction defining the heinous, atrocious, and cruel aggravating circumstance; (6) the trial court erred in denying relief based on U.S. Supreme Court case Ring v. Arizona, 536 U.S. 584 (2002); and (7) the death penalty is not proportionate in this case.”

In Whitton v. State (SC11-2083 and SC12-2522), the Court denied the appellant’s arguments that his conviction and death sentence should be overturned on the basis that the prosecution was corrupt, that the trial counsel did not properly investigate mitigation for sentencing, that there were juror communication issues (specifically that he was denied the chance to interview the jury and that the bailiff and judge communicated with them outside his presence), and that he had ineffective counsel.

In Huggins v. State (SC11-219), the Court denied the appellant’s arguments that his conviction and death sentence should be overturned on the basis that the postconviction court erred in finding him competent, that he had ineffective assistance of counsel, and that there was prosecutorial misconduct.

In Smith v. Southland Suites of Ormond Beach (SC10-631), the Court dismissed the review proceeding based on a lack of jurisdiction. The appeal had centered on provisions of a power of attorney and on apparent authority. The Court had initially found that jurisdiction did exist because of a direct and express conflict, but on further review concluded that it was granted “improvidently”.

Can Citizens Property Insurance be Liable for Bad Faith?

Regina Keenan

On October 7, the Florida Supreme Court heard oral argument in Citizens Property Ins., Corp., Etc. v. Perdido Sun Condominium Assoc., Inc., Etc. (SC14-185), a civil action against Citizens for bad faith.

The trial court’s dismissal of the lawsuit on immunity grounds was reversed by the First District Court of Appeal, which held Citizens is not immune from a bad faith claim because Citizens’ statutory immunity has an exception for “willful torts.” Perdido Sun Condo. Ass’n v. Citizens Prop. Ins. Corp., 129 So. 3d 1210 (Fla. 1st DCA 2014); see section 627.351(6)(s)1., Fla. Stat. The First DCA certified the case to the Florida Supreme Court for both a direct conflict with Citizens Property Insurance Corp. v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2009) and as presenting a question of great public importance.

The first question before the Court is whether the claim of bad faith constitutes a tort. A tort, as defined by the DCA below, is “[a] civil wrong, other than a breach of contract, for which a remedy may be obtained, usu[ally] in the form of damages[, or] a breach of duty that the law imposes on persons who stand in a particular relation to one another.” Perdido Sun Condo. Ass’n v. Citizens Prop. Ins. Corp., 129 So. at 1212. Justice Canady questioned the presence of a tort based on a lack of duty. He pointed out that, unlike the plainly worded good faith duty in s. 624.155(1)(b)1., Fla. Stat., Citizens’ duty of good faith in s. 627.351(6)(s)2., Fla. Stat., has ambiguous qualifying language. Citizens’ duty is limited to “manage its claim employees, independent adjusters, and others who handle claims to ensure they carry out [Citizens’] duty to its policyholders to handle claims carefully, timely, diligently, and in good faith, balanced against the corporation’s duty to the state to manage its assets responsibly to minimize its assessment potential.”

The second question before the Court is whether the claim constitutes a “willful tort.” See section 627.351(6)(s)1., Fla. Stat. The Court seemed to agree that there can be torts that might constitute willful torts, such as fraud, intentional interference with a contract, and intentional infliction of emotional distress. Justice Pariente stated that it made sense to compensate an insured if they do not have a roof over their head for two years due to actions by an insurer, but quickly qualified that this was a policy decision made by the Legislature. Justice Pariente asked if the complaint could be amended to show elements of willfulness and not mere negligence. Perdido stated that it could amend the complaint accordingly.

The final question is the extent of Citizens’ immunity. This is important because it impacts the standard of review. All parties and the Court seemed to agree that this question is subject to “strict scrutiny.” However, if Citizens has “sovereign immunity,” any ambiguity in the law would be resolved in its favor. Both Citizens and the State of Florida as amicus argue that Citizens has absolute sovereign immunity because, “Citizens Property Insurance Corporation, [is] a government entity that is an integral part of the state, and that [Citizens] is not a private insurance company.” s. 627.351(6)(a)1., Fla. Stat. Perdido argues that Citizens only has “statutory immunity” in order to exempt it from tax liability. Perdido Answer Brief.

Justice Pariente and Justice Lewis also alleged that under s. 624.155, Fla. Stat., a third party bad faith claim against an insurer can only be brought if the liability exceeds the policy coverage (absent a showing of punitive damages). However, the alternative of using Citizens’ good faith duty in s. 627.351(6)(s)2., Fla. Stat., may give a plaintiff in a third party willful bad faith case a chance recover damages even if the alleged damages do not exceed the policy coverage. This opens a public policy argument since it places a monetary liability on Citizens that is not borne by other insurers and that Citizens was specifically created to “…reduce or avoid the negative effects otherwise resulting to the public health, safety, and welfare, to the economy of the state, and to the revenues of the state and local governments which are needed to provide for the public welfare.” s. 627.351(6)(a)1., Fla. Stat. In addition to the public policy component of this argument, it may also circle back to Justice Canady’s point that Citizens’ duty of good faith must be “balanced against [Citizens’] duty to the state to manage its assets responsibly to minimize its assessment potential.” s. 627.351(6)(s)2., Fla. Stat.

With this analysis facing the Court, it may remand for Perdido to amend its complaint to allege “willfulness.” The Court may also reverse the 1st DCA because the immunity language is ambiguous under “strict scrutiny,” or the Court may broadly state that sovereign immunity entitles Citizens to have this ambiguity resolved in its favor.

Don’t Drink and Jury

Michael Maida

On October 7, the Florida Supreme Court heard arguments in Plank v. State (SC14-414), on appeal from the First District Court of Appeal, 130 So. 3d 289 (Fla. 1st DCA 2014), which certified conflict with Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007), and Al-Hakim v. State, 53 So. 3d 1171 (Fla. 2d DCA 2011).

At circuit court, Plank was charged with direct criminal contempt, pursuant to Rule 3.830, Florida Rules of Criminal Procedure, for being drunk while appearing for jury selection. The trial court record reflects that Plank told Judge Dempsey during voire dire, in part, “I’m not even registered to vote. And I’m also, to tell you the truth, I’m a drunk.” He then slept through part of jury selection , smelled of alcohol, and ultimately failed a breathalyzer test.

Following a hearing held after the conclusion of jury selection, Plank was convicted and sentenced to thirty days in jail. He appealed his case to the First District, arguing the trial court erred by failing to appoint him counsel or give him an opportunity to seek counsel for the contempt proceeding. Plank v. State, 130 So. 3d at 290. In a brief per curiam decision, the First District affirmed prior decisions, holding the absence of counsel for Plank’s hearing violated neither the Sixth Amendment nor the Florida Rules of Criminal Procedure. Id.

The issue boils down to whether or not the trial court erred by not appointing counsel or providing petitioner with the opportunity to retain counsel. Put another way, this case invites the Florida Supreme Court to decide whether the failure of a court to assign counsel or provide the opportunity to retain counsel during a direct criminal contempt of court proceeding violates the Sixth Amendment of the United States Constitution or Florida Rules of Criminal Procedure.

Power Struggle: Does a School Have an Affirmative Duty to Use an AED When Necessary?

Kristen Larson

This week the Florida Supreme Court heard oral argument in Limones v. School District of Lee County. (SC13-932) The central issue in this case is whether a school district’s failure to use an AED (automated external defibrillator) was a breach of the School Board’s “common law duty to use appropriate post-injury efforts to protect [a student's] injury against aggravation.” Limones v. Sch. Dist. Of Lee Cnty, 111 So. 3d 901 (2d DCA 2013).

Abel Limones, Jr. collapsed during a high school soccer game. The soccer coach as well as a bystander performed CPR on him to no avail. Although an AED was located nearby, it was not used. Emergency personnel resuscitated him by using a semi-automated external defibrillator. An expert witness testified that Limones suffered severe and permanent brain damage and that this would not have occurred had an AED been used within one to two minutes of his collapse. Abel Limones, Sr. and Sanjuana Castillo, Abel Limone’s, Jr.’s parents, sued the School Board for negligence. The trial court granted summary judgment to the school district, holding that it did not have an affirmative duty to act to help Limones.

The Second District Court of Appeals upheld the Circuit Court’s summary judgment ruling, finding that although the School Board had a duty to protect Abel’s injury from aggravation, the court must define the scope and extent of the duty once a duty to use post-injury efforts has been established and that the School Board’s common law duty does not require them to maintain, or make available for use, an AED. The petitioners argued that this violates Florida law because once a duty has been ascertained (as the School Board’s duty to protect injury from aggravation has been) then a jury should decide the question of what constitutes a breach of that duty. Additionally, the petitioners argued that because statute requires schools to keep an AED and train employees to use it, the school had a statutory duty to actually use the defibrillator when necessary. See section 1006.165, Fla. Stat. The respondents argued that the appeals court correctly upheld the ruling because the determination of duty depends on the facts of the case and because there is no statutory duty regarding actually using AEDs. Respondents also argued that the ruling does not expressly and directly conflict precedent and that the Florida Supreme Court therefore does not have jurisdiction.

Video of the oral arguments is available here.

Court May Clarify What Constitutes an Antique Firearm

John Koeppel

The State of Florida recently petitioned the Florida Supreme Court to clarify what constitutes an antique firearm for purposes of section 790.23, Fla. Stat. (2012), which prohibits possession of a firearm by a felon. Weeks v. State (SC14-1856). Under chapter 790, Fla. Stat., a firearm is defined to exclude an “antique firearm,” which is in turn defined as “any firearm manufactured in or before 1918… or any replica thereof, whether actually manufactured before or after the year 1918…” Section 790.001(1), Fla. Stat. (2012).

In Weeks, the defendant was arrested for possession of a firearm by a convicted felon, a violation of section 790.23, Fla. Stat. The firearm in question was a black powder muzzleloader rifle with a percussion cap firing system. There was no dispute that the rifle had an “ancient vintage” firing system; rather, the dispute centered on whether the scope, an accessory considered nonexistent prior to 1918, rendered the firearm a “replica” for purposes of section 790.23, Fla. Stat. On appeal in the First District Court of Appeal, Weeks argued that given the multiple meanings which may be assigned to the term “replica,” a person of ordinary intelligence is not given fair notice of what conduct is forbidden by the statute. The State argued that anyone could plainly see that, due to the scope, Weeks’ firearm was not an exact copy of a weapon manufactured in or before 1918. 2014 WL 4197379.

In finding the statute unconstitutional for vagueness with respect to what constitutes a replica, the First District reversed Weeks’ conviction. The Court reasoned that given chapter 790’s definition of “antique firearm,” the firing mechanism is what determines whether a firearm is an antique or a replica thereof, regardless of the date of manufacture. The Court noted that “replica” is not defined in section 790.23, Fla. Stat., and that enforcement of the statute with respect to Weeks would result in arbitrary and discriminatory punishment.

Conversely, the Fifth District Court in Bostic v. State, finding it “clear that merely having an ignition system similar to that found on an antique firearm is not sufficient to render a firearm a ‘replica’ of a firearm manufactured in or before 1918,” could not conclude that the statute fails to give fair notice of the prohibited conduct. (Fla 5th DCA 2005) 902 So.2d 225, 228-29. The Fifth District reasoned that the defendant’s firearm, which had a fiber optic sight, was visibly different than an antique firearm. The Court held the term “replica” should be defined as “a reasonably exact reproduction of the object involved that, when viewed, causes the person to see substantially the same object as the original.” 902 So. 2d at 228.

The State filed its jurisdictional brief in Weeks on September 29, 2014, citing the certified conflict with Bostic.