Summary
In State v. Petagine, 290 So.3d 1106, 1109 (Fla. 1st DCA 2020), my colleague, Judge Tanenbaum, highlighted his constitutional concerns in a thoughtful concurring opinion.
Summary of this case from Normandy Ins. Co. v. BouayadOpinion
No. 1D18-2086
03-10-2020
STATE of Florida, Appellant/Cross-Appellee, v. Anthony PETAGINE, Appellee/Cross-Appellant.
ON MOTION FOR REHEARING EN BANC
On the motion of a party, a judge in regular active service on the Court requested that a vote be taken on the motion in accordance with Florida Rule of Appellate Procedure 9.331(d)(1). All judges in regular active service that have not been recused voted on the motion. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the motion for rehearing en banc is denied.
Ray, C.J., and Wolf, Lewis, B.L. Thomas, Roberts, Rowe, Osterhaus, Winokur, Jay, Nordby, and Tanenbaum, JJ., concur.
Makar, Bilbrey, and M.K. Thomas, JJ., dissent.
B.L. Thomas, J., concurs with opinion, in which Osterhaus, J., joins.
Tanenbaum, J., concurs with opinion, in which Osterhaus, J., joins; and in which B.L. Thomas, J., joins as to Part II only.
Makar, J., dissents with opinion, in which Bilbrey, J., joins.
Kelsey, J., recused.
B.L. Thomas, J., concurring in the denial of rehearing en banc.
The opinion dissenting from our decision to deny rehearing en banc mandates a response, given its meritless assertion that judges who disagree have failed to "stand down" to the relevant statutory text, or worse, have judicially "expanded" the statute. Ironically enough, it is the opinion dissenting from the denial of the rehearing en banc that fails to rely on the text of the statute. That opinion contains long passages explaining the en banc process, several secondary sources, quotes from the legislative history and a subsequently amended statute, and citations from only one relevant precedent, which upheld the statute against constitutional challenge, Martin v. State , 259 So. 3d 733 (Fla. 2018).
In addition to avoiding the relevant statutory text, the opinion dissenting from the denial of rehearing en banc also lacks a discussion of the legal standard of review on a motion to dismiss a criminal charge, which the majority opinion here extensively discussed:
A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. Allen v. State , 463 So. 2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller , 463 So. 2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues, determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle , 600 So. 2d 1236 (Fla. 1st DCA 1992). In considering such a motion, the trial court must construe all evidence and inferences in a light most favorable to the state. Vanhoosen v. State , 469 So. 2d 230 (Fla. 1st DCA 1985). The state is not obliged to produce evidence sufficient to sustain a conviction. Feagle , 600 So. 2d at 1239. "As long as the State shows the barest prima facie case, it should not be prevented from prosecuting." Vanhoosen , 469 So. 2d at 232. Moreover, if the state's evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial, after all of the evidence has been presented. State v. Upton , 392 So. 2d 1013 (Fla. 5th DCA 1981). State v. Bonebright , 742 So. 2d 290, 291 (Fla. 1st DCA 1998)... "[T]he [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant." Ramsey v. State , 124 So. 3d 444, 446 (Fla. 1st DCA 2013) (citing State v. Ortiz , 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000) ). This standard of review does not change because Appellee filed his motion pursuant to Florida Rule of Criminal Procedure 3.190(c), rather than 3.190(c)(4). In fact, it is arguable that the State is entitled to even greater deference under 3.190(c), which does not require the movant to acknowledge undisputed facts in a sworn motion. Here, the unsworn motion fails to acknowledge relevant and undisputed facts.
Addressing the statute's actual text, along with the definition of the statute defining criminal liability as a principal, the majority opinion stated the following:
When viewed in a light most favorable to the State, with all inferences being resolved against the defendant, the State's statement of particulars alleged sufficient facts to show that a reasonable jury could find that Mr. Petagine committed felony hazing under the principal theory. See Parks , 96 So. 3d at 476 (rejecting appellant's argument that the State failed to allege a prima facie case of failure to register as a sex offender); see Ramsey , 124 So. 3d at 446 (same regarding motion to dismiss theft charge); § 777.011, Fla. Stat. (2017).
Section 1006.63(1), Florida Statutes, defines hazing as "any action or situation that recklessly or intentionally endangers
the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution." (Emphasis added.) A person commits felony hazing by "intentionally or recklessly commit[ting] any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person." § 1006.63(2), Fla. Stat. In addition, the consent of the victim is not a defense to a charge of hazing. § 1006.63(5), Fla. Stat.
The State alleged that Mr. Petagine violated the statute as a principal. Section 777.011, Florida Statutes, states:
Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed , and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.
(Emphasis added).
Whether prosecuted as a principal or considered a person who was "constructively present," is irrelevant. See State v. Dene , 533 So. 2d 265, 269-70 (Fla. 1988). A correct reading of the statement of particulars, applying the proper standard of review, established that it was legally sufficient to charge a count of felony hazing.
Thus, the majority opinion correctly reversed the trial court's erroneous dismissal of the felony hazing charge. Therefore, I concur in the Court's decision to deny rehearing en banc.
Tanenbaum, J., concurring in the denial of rehearing en banc.
Believe it or not, we as a full court cannot override a panel decision simply because a majority of us disagree with it. I vote to deny the appellee's request for rehearing en banc because both the Florida Constitution and the applicable appellate rule tell me that we have no authority to grant it.
I write here to explain two aspects of my vote. Initially, I discuss my concern that the Florida Constitution does not authorize a district court of appeal to decide a case—let alone to re-decide a case—in any manner except through a majority vote of one of its three-judge panels. That is, the constitution does not appear to allow our en banc determination of a case at all. This abiding constitutional concern naturally will color my consideration of any en banc motion, and it certainly does here.
But no, this opinion is not a "concurral." The terms "concurral" and "dissental" curiously have been willed into our argot to refer specifically to opinions like those found here. See Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral , 121 Yale L.J. Online 601 (2012) ; Marsha S. Berzon, Dissent, "Dissentals," and Decision Making , 100 Calif. L. Rev. 1479 (2012). I nonetheless maintain that they are not real words, and I refuse to use them.
Indeed, these two words are mere solipsistic creations with no legitimate purpose and no proper place in the juridical lexicon. Cf. In re Corrinet , 645 F.3d 1141, 1146 (9th Cir. 2011) (characterizing, for what may be the first time, a prior dissent of Judge Kozinski as a "dissental"); see also Eugene Volokh, Concurral and Dissental , The Volokh Conspiracy (Sept. 12, 2011, 1:13 PM), http://volokh.com/2011/09/12/concurral-and-dissental/ (announcing that "[t]hese two new terms ... were minted by my former boss, Chief Judge Alex Kozinski"); see also In re Doe 13-A , 136 So. 3d 748, 749 (Fla. 1st DCA 2014) (Padovano, J., concurring in en banc denial) (questioning creation of these terms "out of whole cloth"). They certainly come close to striking a pretentious chord. See Fowler's Modern English Usage 39 (R.W. Burchfield ed., 3d ed. 1996) (strongly criticizing Victorian use of -al suffix to create new nouns that competed "with synonymous words of different formation" and suggesting use of gerund form to fill a need "on an isolated occasion for a verbal noun that shall have a different shade of meaning").
What value is there in adding "-al" to "dissent" or "concur"? None. These neologisms are unnecessary because there is no difference between a concurring or dissenting opinion associated with a panel decision, on the one hand; and opinions like those found here (i.e. , those associated with a court order denying a party motion for rehearing en banc), on the other. Either way, independent constitutional officers are exercising sovereign authority by voting, and each has the right (and at times the duty) to explain his or her vote. Each explanation is an opinion. If the majority of the body joins in the opinion, it is the majority opinion. Otherwise, it is a concurring or dissenting opinion, depending on the authoring judge's vote. See Dissent , Black's Law Dictionary (6th ed. 1990) (defining as the "refusal to agree with something already stated or adjudged or to an act previously performed," which may "be accompanied by a dissenting opinion"); Concur , Black's Law Dictionary (6th ed. 1990) (defining as agreement "with the result reached by another, but not necessarily with the reasoning or the logic used in reaching such a result" and describing "concurring opinion"). There is no legal basis for giving a concurring or dissenting opinion higher or lower stature—or some other differential treatment—depending on the type of official vote that gave rise to it. There in turn is no good reason for these "un-words" to be used in any event.
Even if such constitutional authority somehow exists in article V's penumbra, though, it will be the rare and extraordinary case or issue that will justify our collectively re-deciding what a constitutionally authorized two-judge majority already has decided. So, I also discuss why an appeal like this, which merely deals with a basic principle of criminal procedure, does not come close to hurdling the "exceptional importance" requirement set by the supreme court's en banc rule.
I. Constitutional Concerns About Our En Banc Authority
Article V of the Florida Constitution vests the judicial power in "a supreme court, district courts of appeal, circuit courts and county courts." Art. V, § 1, Fla. Const. The same article specifies how the appellate courts in that list exercise this judicial power. Five of seven supreme court justices "constitute a quorum," and the "concurrence of four justices shall be necessary to a decision." Art. V, § 3(a), Fla. Const. For a district court of appeal, "[t]hree [district] judges shall consider each case and the concurrence of two shall be necessary to a decision." Art. V, § 4(a), Fla. Const. (emphasis supplied). The constitution mentions no other manner by which a Florida appellate court may exercise judicial power. It is entirely silent regarding a district court of appeal's deciding a case en banc.
It is fair to ask, then, how a district court of appeal could sit as a whole to decide, or re-decide, a case when the Florida Constitution stands silent on the matter. Cf. In re Fla. Rules of Appellate Procedure , 374 So. 2d 992, 995 (Fla. 1979) (Boyd, J., dissenting) ("Because the constitution specifically provides that three judges shall consider each case heard by the district courts, a different procedure cannot be authorized by the promulgation of a court rule."); see also State v. Georgoudiou , 560 So. 2d 1241, 1248 (Fla. 5th DCA 1990) (en banc) (Cowart, J., dissenting) (noting how en banc consideration supplants the original panel and thereby subverts a litigant's "constitutional right to have his case on appeal heard and decided by the three judge panel to which it was duly, and constitutionally, assigned for decision"); In Interest of K.A.F. , 442 So. 2d 365, 369 (Fla. 5th DCA 1983) (en banc) (Cowart, J., dissenting) (observing that article V, section 4(a) "has absolutely no meaning if a majority of the judges on a district court of appeal, disagreeing with the view of some proposed panel majority decision, can ... act under Florida Appellate Rule 9.331 to wrestle jurisdiction of a particular case away from the panel to which it was assigned and decide it according to a different view of the law or facts").
The answer, from the Supreme Court of Florida's perspective, appears to be historical necessity—at least when it comes to maintaining "uniformity" in a district court's decisions. After a 1980 revision to article V, the supreme court lost jurisdiction to review any intra -district conflict. See Jenkins v. State , 385 So. 2d 1356, 1357 (Fla. 1980) (noting elimination of supreme court's certiorari power to review such conflicts). Its conflict review subsequently was limited to express and direct inter -district conflicts. Id. at 1359 (emphasis supplied). The supreme court in turn feared that if a district court could not resolve an intra-district conflict "by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the state of law." See In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. Rules of Appellate Procedure , 416 So. 2d 1127, 1128 (Fla. 1982). This concern stemmed from the fact that district courts of appeal were (and still are), in many cases, "final appellate courts." See id. at 1127 ; cf. Ansin v. Thurston , 101 So. 2d 808, 810 (Fla. 1958) (noting that district courts were never intended to be "intermediate courts"; their appellate review in most instances was to be "final and absolute").
Review of those decisions might not be totally foreclosed. The supreme court still may review a question certified by any three-judge district court panel as being of "great public importance." Art. V, § 3(b)(4), Fla. Const.
The supreme court emphasized "that a direct and important interrelationship exists between the en banc rule and the new constitutional amendment" limiting its jurisdiction, and it declared the rule "an essential part of the philosophy of the [new] constitutional scheme." In re Rule 9.331 , 416 So. 2d at 1127. The court somehow divined that the electorate considered the revision "with the understanding that the district courts of appeal could sit en banc to resolve intra-district conflict." Id. at 1128.
But the en banc rule predates the constitutional revision. See generally In re Fla. Rules of Appellate Procedure , 374 So. 2d 992 (Fla. 1979). Necessity as an explanation came a few years later. The rule originally was to just formalize and bring out into the open a process that had been going on behind the scenes. See id. at 993. District courts were holding "ad hoc conferences to discuss problems of conflicts between panels and to determine whether a panel should recede from a prior written opinion of the court." Id. There is one other fact to note about the then-new en banc rule. The supreme court at the time dropped the portion of the proposed rule that would have allowed district courts, sitting en banc, "to consider cases of exceptional importance." Id. ; see also Chase Fed. Sav. & Loan Ass'n v. Schreiber , 479 So. 2d 90, 93 (Fla. 1985) (noting that when the court adopted rule 9.331 in 1979, it did not include the "exceptional importance" language because "there was no need to authorize the en banc process in the district courts except for use in the settlement of intra-district conflict to help reduce the then-existing caseload of the Florida Supreme Court").
I question the propriety of using supposed electoral intent to inform constitutional interpretation, even if the supreme court at the time did not.
However, when a court deviates from constitutional text and reads new meaning into it based on what it infers "must have been the intent," tough questions invariably arise. So it went with the en banc rule. If the constitution provides that "the concurrence of two" judges will decide every case before a district court of appeal, how many judges must concur to override this constitutional prescription and un-decide (or re-decide) a case? The constitution's text does not answer this question because the text does not expressly allow for en banc consideration of cases in the first place. No matter. The supreme court breezily answered the question as follows:
It is our opinion that a simple majority of the active judges actually participating and voting on a case, without regard to illness or recusal, is all that should be necessary to call an en banc hearing as well as to reach a decision on the merits.
In re Rule 9.331 , 416 So. 2d at 1129.
This conclusion is troublesome. From whence does it derive? Why not a two-thirds vote for such an extraordinary step? The supreme court at the time had an answer for this, too. Requiring even "a majority of the active judges on the entire court, whether participating or not" would be too much, because that "could punish the litigants by possibly requiring an extraordinary number of judges to call an en banc hearing or, if called, to vote in favor of an opinion to reach a decision in the case." Id. (emphasis supplied). Imagine, though, the prejudice felt by the litigant who obtained a favorable decision through the concurrence of two judges (which is all the constitution requires), only to see that decision overturned by an extraordinary (and extra-constitutional) en banc process.
This prejudice might be enough to impel the litigant to challenge, via supreme court prohibition, the district court of appeal's jurisdiction to re-decide en banc a case that the litigant already won before a constitutionally constituted panel. See Art. V, § 3(b)(7), Fla. Const.
In any event, this supposed historical necessity and presumed electoral intent still do not explain the constitutional basis for a majority of a district court of appeal (that is, more than two judges) to override a three-judge panel decision simply because the case or issue is of "exceptional importance." Again, there is no mention of this in the Florida Constitution. The supreme court nevertheless decided in 1984 to "broaden[ ] the authority of the district courts of appeal to sit en banc" so that their en banc authority is "consistent with other jurisdictions that provide for en banc proceedings." The Fla. Bar Re Rules of Appellate Procedure , 463 So. 2d 1114, 1115 (Fla. 1984). Jurisdiction being a matter of substantive law, however, I am dubious about whether the supreme court can "broaden" our authority in this manner. Cf. In re Proposed Fla. Appellate Rules , 351 So. 2d 981, 988 (Fla. 1977) (treating authority of a court to resolve disputes (i.e. , jurisdiction) as a matter of "substantive law").
The provenance of Florida's en banc rule, with its questionable constitutional roots, tells me, then, that en banc consideration—if it is to be granted at all—certainly must be the exception and not the rule. An en banc proceeding "engages the attention of every active judge" and "consideration of a case en banc drains judicial resources while burdening the litigants with added expense and delay." Church of Scientology of Cal. v. Foley , 640 F.2d 1335, 1341 (D.C. Cir. 1981) (en banc) (Robinson, J., dissenting). As a consequence, en banc courts typically "are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law" within the appellate jurisdiction. United States v. Am.-Foreign S.S. Corp. , 363 U.S. 685, 689, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960) ; cf. 11th Cir. R. 35-3 (reminding counsel that en banc consideration is an "extraordinary procedure").
This also tells me that I most assuredly cannot vote for an en banc do-over just because I would have written a panel's decision differently or because I would have reached a different outcome (or, dare I say, because I am displeased with some legislative policy, which of course is not our place as judges). An en banc court, in other words, "is not an institution for monitoring panel decisionmaking" in order to "correct individual injustices or mistakes." Foley , 640 F.2d at 1341 (quotations and citation omitted). "Disagreement with the panel opinion in a given case is simply insufficient to merit en banc review." Evans v. Sec'y, Dep't of Corr. , 703 F.3d 1316, 1338 (11th Cir. 2013) (en banc) (Wilson, J., dissenting); see also Foley , 640 F.2d at 1341 (noting widespread agreement that the rule does not authorize "a vote for reconsideration by the entire court merely because [a judge] disagrees with the result reached by the panel"). If disagreement amongst the judges of this Court on a particular legal issue "were the touchstone of en banc review, nary a single opinion would see the light of day." Evans , 703 F.3d at 1338.
I note that this caution comes from federal appellate courts, which, unlike Florida's appellate courts, can at least point to substantive law that gives them the authority to sit en banc. See 28 U.S.C. § 46(c) ("Cases and controversies shall be heard and determined by a court or panel of not more than three judges ... unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service."). Under our federal constitution, Congress has the authority to create inferior courts and the commensurate power to establish how they operate. See Art. I, § 8, cl. 9, U.S. Const.; Art. III, § 1, U.S. Const. The Florida Constitution does not give the Legislature the same type of authority. See Art. V, § 1, Fla. Const. (establishing the only four types of courts that may exercise the judicial power); Art. V, § 2(a), Fla. Const. (giving the supreme court the exclusive authority to adopt practice and procedural rules for all state courts, subject to repeal by a two-thirds vote of the two houses of the Legislature); Art. V, § 9, Fla. Const. (severely limiting the Legislature's authority to increase or decrease the number of judgeships, appellate districts, and judicial circuits).
Our constitution's text unmistakably bestows upon three-judge panels of a district court, and not the district court as a whole, the power to decide cases. This construct anticipates that each of us will defer to the good judgment and wisdom of our colleagues sitting on panels besides ours, considering the cases we perhaps wish we had but do not. Indeed, a governor appointed each of us as a district court judge; each of us took the same oath to stay true to the constitution. See Gamble v. United States , ––– U.S. ––––, 139 S. Ct. 1960, 1984–88, 204 L.Ed.2d 322 (2019) (Thomas, J., concurring) (discussing the significance of a judge's oath in the exercise of judicial power).
Moreover, we are a collegial court made up of fifteen intelligent jurists with diverse backgrounds and experience. We do not toil in isolation. Every one of our draft opinions circulates amongst the other fourteen judges for review and comment before its release. See First District Court of Appeal Internal Operating Procedures 5.4.2 (March 2019), https://www.1dca.org/content/download/426941/4633902/March_2019_IOP.pdf. Each of us, then, is constantly apprised of the varying panels' proposed decisions. Thus, if I have a concern about a panel's holding or rationale, I can go to the authoring judge or the other panel members to discuss it. That process can produce a better opinion. Still, if I cannot make headway with the panel, I must stand down and respect the Florida Constitution's directive—that it is ultimately the assigned panel's case to decide, not mine.
Also, I can take some solace in the realization that any two or three of us can effect a meaningful development in the law only incrementally, at best. Remember that any particular panel decides the application of law to a particular set of facts; the decision's controlling nature in the future is necessarily limited. See Boxer X v. Harris , 459 F.3d 1114, 1115 (11th Cir. 2006) (Carnes, J., concurring in en banc denial) ("Our decisions are controlling only in cases involving materially similar facts."). Moreover, I am sure we all take seriously the supreme court's admonition that "[u]nder our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole." In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Florida Rules of Appellate Procedure , 416 So. 2d 1127, 1128 (Fla. 1982) (observing that "a three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law") (emphasis supplied).
Under our constitution, then, en banc consideration indeed is an extraordinary step for a district court of appeal to take, regardless of whether it is done to "maintain uniformity" or to deal with a "case or issue [ ] of exceptional importance." Fla. R. App. P. 9.331(a). The rule represents a dramatic departure from the constitutional norm of a three-judge panel considering a case, and of a two-judge majority deciding it. As a consequence of this, the en banc process should be reserved for truly extraordinary circumstances where the need to involve the whole court is so manifest that it demands setting aside constitutional concerns and instead abiding by the supreme court's ostensible justification for the en banc rule in the first place—maintenance of consistency by the district court of appeal, as the faithful steward of the law within its jurisdiction. Cf. In re Rule 9.331 , 416 So. 2d at 1128 (noting the Florida Constitution's "philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district").
II. No Extraordinary Need Here to Justify Rehearing En Banc
All this said, I turn to the motion for rehearing en banc. The appellee considers the matter before the panel of "exceptional importance" and asks that we collectively reconsider our colleagues' work. Thoughtful commentary already exists on what constitutes "exceptional importance." See, e.g. , In re Doe 13-A , 136 So. 3d 748, 753–55 (Fla. 1st DCA 2014) (Rowe, J., dissenting from denial of en banc hearing); Ortiz v. State , 24 So. 3d 596, 618–19 (Fla. 5th DCA 2009) (Cohen, J., dissenting from grant of en banc rehearing); Univ. of Miami v. Wilson , 948 So. 2d 774, 791–92 (Fla. 3d DCA 2006) (Shepherd, J., concurring in denial of en banc rehearing motion). While a precise definition of "exceptional importance" may prove elusive in the abstract, in considering an en banc motion on this basis, I must look at the case in the context of the constitutional concerns I discussed above. Having done so, I am certain that the procedural matter presented in this appeal falls far short of the "exceptional importance" threshold set out in the rule; nothing here cries out for the extraordinary process of en banc review.
At bottom, while this certainly is a tragic case, its governing legal principle is unremarkable. The motion that started all of this did not even seek dismissal under Florida Rule of Criminal Procedure 3.190(c)(4), as the panel majority astutely noted. A defendant typically relies on that provision to assert, through a sworn motion specifying the facts on which it is based, that "the undisputed facts do not establish a prima facie case of guilt against the defendant." Id. There was no sworn motion here.
The appellee instead titled his motion as one for dismissal of the information "FOR FAILURE TO COMPLY WITH [THE TRIAL COURT'S] ORDER FOR A STATEMENT OF PARTICULARS." The request essentially sought sanctions, which makes it an entirely different type of motion. Cf. Fla. R. Crim. P. 3.220(n) ("Sanctions"). The appellee even cited the abuse of discretion and prejudice standards associated with a sanctions motion.
Rule 3.220(n), in pertinent part, provides as follows:
(n) Sanctions.
(1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order the party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
A sanctions motion does not test the sufficiency of the State's case, so this appeal is not the proper vehicle by which to test the outer limits of criminal liability under the hazing statute. Even though the panel majority here considered whether the State had established a prima facie case, it did not do so in the context of sworn, undisputed facts, which would happen in the typical Rule 3.190(c)(4) context. Instead, the panel majority reviewed the State's charging document (which tracked the hazing statute's language) and the statement of particulars (which detailed the facts and circumstances supporting the charge) and asked whether dismissal of the felony charge was warranted at the beginning of the case, before trial, based on the trial court's assessment of the State's theory of the case.
The panel majority no doubt had in mind the well-worn principle that dismissal is an "extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result." State v. Theriault , 590 So. 2d 993, 995–96 (Fla. 5th DCA 1991) ; see also State v. Del Gaudio , 445 So. 2d 605, 608 (Fla. 3d DCA 1984) (noting magnitude of the sanction and counseling dismissal only as a last resort). Indeed, the criminal rules preclude a trial court from dismissing an information "for any cause whatsoever," unless it concludes as follows:
that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.
The "obvious rationale" for this limitation is to ensure "that the public's interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor's misconduct." Del Gaudio , 445 So. 2d at 608. It follows from the reality that "where the prosecutor's failure to make discovery has not irreparably prejudiced the defendant, the sanction of dismissal punishes the public , not the prosecutor, and results in a windfall to the defendant." Id. (emphasis supplied). Along these lines, then, before such an extreme sanction can be imposed for a rule violation, there must be a showing that the non-compliance "resulted in prejudice or harm to the defendant." Richardson v. State , 246 So. 2d 771, 774 (Fla. 1971) ; see also Theriault , 590 So. 2d at 996 ("Before dismissing an information for a prosecutor's violation of a rule of discovery the trial court must find that the prosecutor's violation resulted in prejudice to the defendant."). As the supreme court has observed, the criminal discovery rules were "designed to furnish a defendant with information which would bona fide assist him in the defense of the charge against him. It was never intended to furnish a defendant with a procedural device to escape justice." Richardson , 246 So. 2d at 774.
I read the panel majority's decision as applying this principle, and nothing more. The single error that the panel majority corrects is an overzealous dismissal of an otherwise facially sufficient felony charge based on the trial court's reading of the hazing statute and its determination that the roughly four-page statement of particulars was somehow not informative enough . The panel majority's correction of the trial court is consistent with Florida's prevailing criminal pleading requirements, and it should not have much application beyond this case.
Put another way, at its heart, this appeal involves a pleading review; it does not have a constitutional dimension to it. The information's allegations cited section 1006.63 and tracked, nearly verbatim, the statute's essential language. The felony count alleged that "[d]uring the Fall of 2017," the appellee "did unlawfully intentionally or recklessly commit any act of hazing as defined by Florida Statute 1006.63(1) upon Andrew Coffey," that Mr. Coffey "was an applicant or member of a student organization, operating under the sanction of a postsecondary institution as defined by Florida Statute 1006.63(1), Florida State University," and that the "hazing resulted in serious bodily injury or death of Andrew Coffey," in violation of section 1006.63(2), Florida Statutes.
The hazing statute's text prohibits conduct beyond just forced alcohol consumption. It expressly criminalizes the creation of physically or mentally dangerous circumstances—even if done only recklessly and not intentionally. The conduct criminalized as "hazing" is "any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution." § 1006.63(1), Fla. Stat. (2017). To be sure, the statute provides a non-exhaustive list of examples. See id. (providing that the term "hazing" includes conduct involving "pressuring," "coercing," and "forc[ing]"). That list includes the following: "any activity that would subject the student to extreme mental stress," like a "forced activity that could adversely affect the mental health or dignity of the student." Id. The statute no doubt contemplates the intense peer pressure brought to bear on judgment-impaired 18- to 20-year-olds who desperately seek acceptance into a fraternity or sorority.
The statute affords the State a significant amount of leeway in deciding who should face criminal liability in these circumstances. This is a policy call that the Legislature made. Naturally, the Legislature "has the primary authority for defining crimes." Chicone v. State , 684 So. 2d 736, 744 (Fla. 1996). It can "declare an act a crime regardless of the intent or knowledge of the violation thereof." State v. Adkins , 96 So. 3d 412, 417 (Fla. 2012) (internal quotation and citation omitted); see also id. ("Given the broad authority of the legislative branch to define the elements of crimes, the requirements of due process ordinarily do not preclude the creation of offenses which lack a guilty knowledge element.").
The principal statute expands the scope of potential criminal liability even further. That provision states that "[w]hoever ... aids, abets, counsels, hires, or otherwise procures [an] offense to be committed, and such offense is committed ... may be charged, convicted, and punished" as a principal, regardless of "whether he or she is or is not actually or constructively present at the commission of such offense." § 777.011, Fla. Stat. (2017).
The State in turn gets to decide who it charges, based on what it thinks it ultimately can prove. As long as the information tracks the statutory terms, it typically will be facially sufficient; the State need not "set forth proof with which [it] intends to establish its case." Martinez v. State, 368 So. 2d 338, 340 (Fla. 1978) ("Generally, an information is sufficient if it follows the language of the statute ....") (internal citations omitted). "[I]t will be the rare instance that an information tracking the language of the statute defining the crime will be found to be insufficient to put the accused on notice of the misconduct charged." Chicone , 684 So. 2d at 744.
Still, even when an information tracks a criminal statute that "defines the offense in general terms," it might "not clearly and specifically apprise the accused of what he must defend against." State v. Covington , 392 So. 2d 1321, 1324 (Fla. 1981). The statement of particulars can provide a remedy by specifying "the acts alleged to constitute the offense with precision and particularity." Id. The availability of such a statement, along with the advent of liberal discovery rules, reduces "the danger of a defendant's being in doubt as to the specifics of his alleged wrongdoing ...." State v. Dilworth , 397 So. 2d 292, 294 (Fla. 1981). There is a rule for that. See Fla. R. Crim. P. 3.140(n) (requiring such a statement when the "information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense ") (emphasis supplied). That statement must "specify as definitely as possible the place, date, and all other material facts of the crime charged." Id.
Under this rule, the appellee obtained from the State just such a statement of particulars, which provided several pages of detail about the circumstances and events giving rise to the charges against the appellee and his co-defendants. The statement described the fraternity's history with hazing activities, and the appellee's past approval of and involvement in those activities—even though he was trained in the university's and his own fraternity's policies against hazing and the anti-hazing laws, and even though he was taught the dangers of binge drinking in a hazing environment. The statement described how the appellee knew that his chapter's prior big-brother nights had led to dangerously extreme intoxication and that this particular pledge class had a consistent problem with intoxication.
According to the statement of particulars, the appellee, along with his co-defendants on the fraternity's executive council—despite knowing all of this, including the dangers involved—promoted the big-brother party. It explained that he and his co-defendants lifted the fraternity directive that the pledges not drink. The statement specified the address at which the big-brother party was held as part of the chapter's tradition; it gave the specific night on which the party (and the tragic events that followed) occurred; it described who was there and how they got there; and it described the ensuing excessive drinking about which the defendants had been forewarned.
The trial court, then, should have concerned itself with but one question: Did the defendants have enough information to know "what [they] allegedly did wrong"? State v. Sutton , 416 So. 2d 852, 853 (Fla. 1st DCA 1982). Really, though, how could they not?
This is not a prosecution where the State alleged that the appellee and his co-defendants helped procure or promote a fraternity event where some unforeseeable-yet-tragic mishap occurred. The State did not describe the appellee and his co-defendants as planners or promoters of some fraternity event (perhaps volunteering at a food bank or a homeless shelter or playing a friendly flag football game) in which the brothers and pledges were participating peaceably until something went terribly wrong and someone died. If the State had approached the case this way, the appellee and his co-defendants could be forgiven for their confusion about their charges.
That, however, was not the case here. The appellee was not confused, misled, or hampered in his defense. The State described the appellee's involvement in the planning of a fraternity-sponsored, Friday-night apartment party, attended almost exclusively by underage males (plus two strippers), where an objective was to consume alcohol to excess—illegally. The fraternity's executive council leaders followed fraternity tradition in approving and promoting the event with full knowledge and understanding of the social and emotional pressure it placed on pledges who desperately desired acceptance as brothers and of the serious risk involved in encouraging this particular group of pledges to drink.
If this is indeed the way it happened—something a jury alone must decide—it was a felony under the hazing statute because it resulted in a death. Hazing includes the reckless creation of a situation, associated with a university-sanctioned fraternity, that creates a risk of serious injury or death. Can anyone doubt the high risk involved with a bunch of highly motivated young adult males congregating at an apartment on a Friday night with a bunch of liquor and a couple of strippers?
Here is where the trial court went wrong—and how limited the panel majority's decision is. The trial court dismissed the felony charge (but not the misdemeanor charge) based on its interpretation of the statute and what appears to be a pre-judging of the sufficiency of the State's evidence. But there is an "obvious difference between the sufficiency of proof and the adequacy of allegations in an information." Sutton , 416 So. 2d at 853. The statement of particulars need not tell the appellee how the State intends to prove its case. "The purpose of a statement of particulars is to fully advise the defendant of the nature and cause of the accusation against him, and to afford him the opportunity to prepare a defense." Brown v. State , 462 So. 2d 840, 843 n.2 (Fla. 1st DCA 1985). Nonetheless, the statement of particulars essentially set out the State's theory: The appellee's encouragement and facilitation of the Friday-night big-brother apartment party worked in tandem with the fraternity's culture and traditions and the pledges' desire to belong, and this created a high-risk situation that meets section 1006.63's definition of criminal conduct. The State's pleading must disclose enough so that the appellee knows what conduct allegedly violated the statute. Nothing more is required.
Arguably, there was no violation of the rules at all. There certainly was no irreparable prejudice to the appellee. Dismissal as a sanction was in no way justified. The panel, faced with a rare trial court dismissal of a felony information for failure to plead sufficient facts, appropriately respected the deference due to the State and the public interest in prosecuting legislatively prescribed crimes. The trial court should not have questioned the State's theory of the case. The panel majority simply corrected the error by reinstating the felony charge, which was consistent with extant case law.
We have, then, a panel majority deciding an appeal based on a well-established and non-controversial criminal pleading principle. There is no sweeping, districtwide statement of how the hazing statute must be applied to a particular set of facts. There is no constitutional right at stake. The underlying circumstances of this appeal are tragic, to be sure; and the ultimate outcome of the case will be terribly significant to all involved. But there is no legal principle at work that could justify taking the extraordinary step of considering an override of the panel's decision, which already garnered the constitutionally mandated (and sufficient) concurrence of two of three judges on one of this Court's panels.
The appellee might have a meritorious Rule 3.190(c)(4) motion; or, even more likely, a motion for judgment of acquittal at trial. Nothing in the panel majority's decision should preclude either motion in this or any other criminal-hazing prosecution.
I concur in denying the requested exercise of the constitutionally dubious en banc power in this appeal.
Makar, J., dissenting in part from denial of rehearing en banc.
En banc review occurs when a majority of the judges eligible to vote decide to do so, which occurs infrequently because of the small number of times annually that members of our court actually vote on a pending motion for rehearing en banc. Voting on a party's motion for rehearing en banc is not automatic: a judge must request the vote, absent which the motion is administratively denied. The request for a vote on a party's motion can come from a panel or non-panel judge, and the resulting internal dialogue can be tepid or fierce, depending on the issues and personal interests of our fifteen members.
Even when an en banc motion fails after a court vote, the adjudicative process nonetheless benefits from the internal discussion, which is true even when the denial is somewhat lopsided. The collective wisdom of the court comes to bear on the process, which often makes the end product better, eliminates rough edges and surplusage, and sometimes produces different views expressed in concurring or dissenting opinions (sometimes on unraised issues as in this case). And even when the en banc vote isn't close, a dissental can shape the path of the law, such as our supreme court's decision in Wright v. City of Miami Gardens , 200 So. 3d 765 (Fla. 2016), which relied in part and quoted a dissental from this Court joined by only two members. See Levey v. Detzner , 146 So. 3d 1224, 1227 (Fla. 1st DCA 2014) (Makar, J., dissenting from denial of rehearing en banc joined by B.L. Thomas, J.), abrogated by Wright , 200 So. 3d at 777. The same can be said of en banc dissents themselves, which are close cousins of dissentals. See Lee v. State , 258 So. 3d 1297, 1300 (Fla. 2018) (relying upon and quoting from the two dissents in Lee v. State , 223 So. 3d 342, 372 (Fla. 1st DCA 2017), the 13-2 decision of this Court that was quashed). A lopsided denial of en banc review, or a lopsided en banc decision itself, isn't for naught and need not be the end of the story. The en banc motions of the parties in this case raised important substantive (hazing) and procedural (speedy trial) criminal law issues. The vote on the motions, though resulting in an 11-3 vote against en banc review, was worthy of the discussion. Because we aren't required to explain our votes, it typically is indeterminate whether votes against en banc review are on the merits or because the issues are viewed as not sufficiently important to justify review (often heard is that "I agree with the dissent, but the issue is not en banc-worthy."). A gray area of uncertainty can arise where a majority of a court disagrees with a panel decision but lacks the en banc votes to deem the case or one of its issues of exceptional importance or necessary for uniformity in its precedents; the same is true for many more cases where a plurality of internal disagreement exists. A murky and malleable jurisprudence can result.
At this juncture the court is constrained to the issues the parties presented on appeal, not new ones raised by a panel (or a concurral) for the first time. That's what our en banc court recently said in a procedural case. Rosier v. State , 276 So. 3d 403, 407 (Fla. 1st DCA 2019) (en banc) (failure to include argument in initial brief operates as a waiver). The sole issue the State presented in its initial brief was: "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISMISSED THE FELONY HAZING COUNT BECAUSE THE STATE SHOWED A PRIMA FACIE CASE OF FELONY HAZING AGAINST THE DEFENDANT." No other dismissal-related issue was made throughout the appellate process; instead, the focus of the State and the other parties was exclusively on the trial court's dismissal order and Rule 3.190 (the only rule the State even cited; no mention was made by anyone of Rule 3.220 ). As a general matter, we adjudicate the case as presented to us and are not supposed to wander far from home. Rosier , 276 So. 3d at 406 ("An appellate court is ‘not at liberty to address issues that were not raised by the parties.’ ") (citation omitted). More leeway is allowed, for example, where supplemental briefs are ordered or when a case goes en banc, see, e.g., Florida Carry, Inc. v. Univ. of N. Florida , 133 So. 3d 966 (Fla. 1st DCA 2013), or in concurrences and dissents (even from denials of rehearing en banc), which serve important functions in the development of our federal and state jurisprudence.
Turning to this case, one of exceptional importance, criminal hazing laws have spawned much discussion and reforms nationwide. See generally Brandon W. Chamberlin, " Am I My Brother's Keeper?": Reforming Criminal Hazing Laws Based on Assumption of Care , 63 EMORY L.J. 925 (2014) (detailed survey and discussion of history of hazing laws). They are varied but typically supplement existing criminal laws, such as those for assault/battery, by creating a specifically defined basis for holding campus perpetrators accountable for intentional dangerous acts upon oft-times vulnerable students (e.g., whipping, beating, branding, forced consumption of liquor/drugs/etc.). See, e.g., Martin v. State , 259 So. 3d 733, 737 (Fla. 2018) (hazing law applies to member of university band who was responsible for ritual beatings on motor coach causing another member's death). If written or construed too broadly, however, they can result in over-criminalization, converting conventional torts and other social interactions causing harm into crimes. See Eric C. Surette, Tort Liability for Hazing or Initiation Rituals Associated with Schools, Colleges, or Universities , 100 A.L.R.6th 365 (2014) (general overview of tort liability in hazing context); see also Joseph Beckham & Douglas Pearson, Negligent Liability Issues Involving Colleges and Students: Does A Holistic Learning Environment Heighten Institutional Liability? , 175 ED. LAW REP. 379 (2003) (reviewing developments regarding institutional liability for negligence involving students, including hazing). Legislators walk a tightrope in drawing a line between those core intentional acts of harm for which criminal liability is appropriate while leaving societal space for private associations and their own distinctive operational principles; in other words, new forms of criminal liability are added guardedly and incrementally, particularly where other criminal (and tort) remedies already exist, thereby preserving those remaining aspects of private social life for which the freedom of association is appropriate.
Rule 9.331(a), Fla. R. App. Pro. (2020) (en banc review warranted where "the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court's decisions").
Florida's hazing statute and its amendment history reflect this balance and incrementalism. The initial version of section 1006.63 was created almost two decades ago as a part of a massive restructuring of Florida's K-20 education laws. Ch. 2002-387, § 333, Laws of Fla. It included the types of serious physical acts intended to cause physical harm as in Martin . A few years later, the statute was broadened and clarified to include acts of hazing such as "pressuring or coercing [a] student into violating state or federal law," while excluding "customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective." Ch. 2005-146, § 3, Laws of Fla. It was this substantive version, as adopted in 2005, that remained unchanged until 2019.
Given this background, the Legislature has made the central purpose of the applicable 2017 version of the hazing statute clear: criminalizing a narrow category of intentional/reckless acts that directly caused serious harm arising from pressured or coerced violations of law or forced consumption of substances, here alcohol. Indirect acts, such as encouragement or the creation of celebratory or social occasions where heightened risks may be present, fall short of the statute's mark. The law was amended and broadened in 2019, as discussed below, and might apply to post-2019 situations with similarities to this case, but no one disputes that the substantive version in effect in 2017—unchanged since 2005—is the relevant one in this appeal.
Here, the State failed to allege sufficient facts, despite being required to provide a detailed statement of particulars, that reached the level of a coercive criminal hazing offense under the language of the 2017 statute. Viewing the information and statement of particulars most favorably to the State, see Boler v. State , 678 So. 2d 319, 323 (Fla. 1996), the trial judge got it correct, stating:
Authorizing a social event at which a fraternity pledge consumed too much alcohol despite the fact he was not legally permitted to do so would not support a claim for Felony Hazing unless he was forced, pressured, or coerced into consuming such alcohol illegally and to excess . The closest the State comes to such action is alleging that Defendants created an opportunity for under-aged drinking and Mr. Coffey may have been encouraged to partake. That is simply not enough under the statute as drafted .
(Emphasis added). A significant difference exists between encouraging or creating an opportunity for overconsumption of alcohol by students and directly coercing, pressuring, or forcing a student to consume substances that seriously affected his/her physical health/safety. The former is not a part of the 2017 criminal hazing statute; the latter is. This elevated level of seriousness is reflected in the statute's plain language as well as precedent, which notes the narrow and heightened statutory standards for a hazing violation under the applicable version of the statute. See, e.g. , Morton v. State , 988 So. 2d 698, 704 (Fla. 1st DCA 2008) (hazing statute required "serious" injury such that jury instruction, which distinguished "serious" from "slight" injuries, was erroneous because jury could infer that harm other than slight harm—such as "moderate" harm—supported a violation).
Likewise, the trial judge got it wrong in concluding that a misdemeanor violation of the statute was viable when based on a lesser degree of harm. He split the baby, allowing the misdemeanor count to proceed, but the same deficiencies apply to that count (i.e., it exceeded the hazing statute's reach).
No question exists that the State has alleged extreme hazing activities as they are understood in the collegiate vernacular; the question is whether its allegations fall within the previous statute's narrower parameters and thereby allege illegal hazing. Our supreme court has made clear that section 1006.63 is narrowly written and doesn't criminalize all acts constituting "hazing":
The judicial inquiry is a purely legal one. Williams v. State , 244 So. 3d 356, 359 (Fla. 1st DCA 2018) ("The purpose of a motion filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is to determine whether the undisputed facts the State will rely on establish a prima facie case, as a matter of law, so as to permit a jury to find the defendant guilty of the charged crime."). Guesswork on appeal as to what a criminal defendant may have or ought to have known about where the prosecution may be headed in a case is not part of that inquiry.
The definition of hazing is, of course, critically important to determining the scope of criminal liability under the statute. An act is not punishable as a crime under the statute unless it falls within the ambit of that definition. But an act may come within the definition of hazing and still not be a criminal offense. The provisions establishing felony hazing and misdemeanor hazing both contain additional elements that go beyond the definition of hazing. An examination of those elements readily reveals that they substantially narrow the scope of criminal liability under the hazing statute.
Martin , 259 So. 3d at 736 (emphasis added). Chief Justice Canady's admonition as to the statute's narrow scope applies here ( Martin involved the same version of section 1006.63 ).
Judicially expanding the hazing statute's reach conflicts with supremacy-of-the-text principles, and the Legislature's statutory admonition that Florida's criminal "code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." § 775.021(1), Fla. Stat. (2020). These principles require that courts stand down and apply the statute as written; where a reasonable difference in construction exists, we must construe the statute "most favorably to the accused" as the Legislature has directed. Id. Textually, subsection (1) is the only general statement in Florida's written laws that compels strict construction of a statute's substantive language. It applies here because it is a purely legal question whether the allegations, construed in favor of the State, state a claim. Williams v. State , 244 So. 3d 356, 359-60 (Fla. 1st DCA 2018) ("A trial court's ruling on a motion to dismiss is reviewed de novo .... Questions of statutory construction are also reviewed de novo .") (citation omitted).
It is significant that the Legislature amended the hazing statute in 2019 in response to the mindless and heart-breaking tragedy in this case. It expanded criminal liability to anyone who "solicits a person to commit, or is actively involved in the planning" of acts of hazing (as defined in section 1006.63(1) ). Ch. 2019-133, § 1, Laws of Fla. In doing so, the amendment opened up the "prosecution of persons who were known to have planned the hazing or recruited others to participate in hazing but who could not otherwise be identified as having actively participated in the act of hazing itself." Senate Bill Analysis & Fiscal Impact Statement, at 3 (March 11, 2019). The amendment also expanded potential liability to include "the perpetuation or furtherance of a tradition or ritual of any organization operating under the sanction of a postsecondary institution." Id. In short, it is for the Legislature to broaden criminal liability for the types of activities alleged in this case, as it has done incrementally in Florida, rather than judicial expansion, making en banc review warranted. Our job is to enforce the statute on the books at the time of the offense; doing otherwise amounts to reassessing and potentially expanding legislative policy.
As an alternative to full court review, the panel was asked by the defendants to certify questions of great public importance. Doing so would alleviate the need for en banc review, move the case along, and give our supreme court—which recently decided the Martin hazing case—an opportunity to address either or both issues. District court panels should not certify questions simply to marginalize or sidestep the en banc review process, but certification in appropriate cases can be a conciliating mechanism that focuses upon the issues that may be of concern among a court's members and gives our supreme court the power to decide what's important.
Finally, we do not in any way condone what happened on November 2-3, 2017. Andrew Coffey's needless death breaks the spirit of those of us with children college-age or younger and undoubtedly many others. It is unfathomable how the sudden loss of his young soul has affected his family, friends, and the broader community his life touched. We take solace in the fact that meaningful legislation and cultural reforms on campus—slowly but most assuredly—continue to take place in his memory. See, e.g. , Ch. 2019-133, § 1, Laws of Fla. (naming and codifying sections 1006.63(11) - (12), Florida Statutes, as "Andrew's Law.")
Postscript
Like a Coca-Cola Freestyle© machine, district court of appeal judges dispense a large range of judicial tastes on the en banc review process. I've stated my perspectives in detail, and won't repeat them here. But it bears emphasis that the en banc review process in Florida state appellate courts has been both necessary and critical over the past four decades. District courts are the final stop for almost all of the thousands of cases brought to them for relief each year (our court gets close to 5000). We do not rely on supreme court review to correct our errors or to decide every case of importance; they don't have jurisdiction to do so and have a full docket of their own. Only we can police ourselves in the large swath of appellate cases whose journey ends with us. Doing so requires a degree of collective and collegial responsibility for overseeing decisions of three-judge panels, which are not necessarily the ultimate authority in all cases: the full court is. In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, 416 So. 2d 1127, 1128 (Fla. 1982) ("Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole."); Chase Fed. Sav. & Loan Ass'n v. Schreiber , 479 So. 2d 90, 94 (1985) ("The en banc process provides a means for Florida's district courts to avoid the perception that each court consists of independent panels speaking with multiple voices with no apparent responsibility to the court as a whole."). Without en banc oversight we'd be merely "an assemblage of 455 randomly-assigned and autonomous three-judge panels each doing as it sees fit." Mitchell v. Brogden , 249 So. 3d 781, 784 (Fla. 1st DCA 2018) (Makar, J., dissenting from denial of rehearing) (noting that our 15-member court has 455 possible three-judge panel combinations). As important and necessary as the en banc review process is to our work and the jurisprudence that governs the people and institutions in our district, we have been judicious and infrequently use it (i.e., few are called, even fewer chosen), which is appropriate as a matter of judicial policy and discretion resulting from the respectful exercise of judgment when a party or colleague believes review may be warranted. Schreiber , 479 So. 2d at 94 ("The [en banc] process provides an important forum for each court to work as a unified collegial body to achieve the objectives of both finality and uniformity of the law within each court's jurisdiction.").
See Florida Fish & Wildlife Conservation Comm'n v. Daws , 256 So. 3d 907, 930 (Fla. 1st DCA 2018) (dissental); Mitchell v. Brogden , 249 So. 3d 781, 783 (Fla. 1st DCA 2018) (dissental); In re Doe 13-A , 136 So. 3d 748, 757 (Fla. 1st DCA 2014) (dissental).