January 23, 2020 Florida Supreme Court Opinions

We quickly cover a couple opinions from the Florida Supreme Court today, involving sovereign immunity, the Florida Rules of Appellate Procedure, and the proper remedy for unconstitutional findings of dangerousness by trial court judges.

Sovereign Immunity

A few years ago the Florida Rules of Appellate Procedure were amended to provide for the interlocutory appeal of orders denying sovereign immunity, so the issue of immunity can be settled with finality before a trial. After all, if a party immune from suit is erroneously required to go to trial, then held to be immune from suit on appeal, what good was the so-called immunity? But until today, Rule 9.130 provided for interlocutory appeal only when a party was denied immunity “as a matter of law.”

The Florida Supreme Court has, a few times, held that this requires the trial court to state in its order denying immunity that the issue was decided as a matter of law—a much stricter requirement than under federal case law, which generally assumes that a court will decide the issue well before trial as a matter of law. This has caused a stir in the district courts—what happens when a party appeals an interlocutory order denying sovereign immunity, and the order lacks the required language, but the appellate court determines, as a matter of law, that the party is in fact entitled to sovereign immunity? That puts potentially immune litigants back in the position they were in before the amendment allowing such appeals in the first place. Not only that, a trial court can avoid immediate review simply by omitting a few magic words.

That brings us to Florida Highway Patrol v. Jackson, arising from the FHP’s allegedly negligent reopening of I-75 after closure due to a brush fire. After the interstate was reopened, diminished visibility led to a multiple-car collision and the death of Vontavia Robinson. The estate sued FHP, but FHP moved for summary judgment, arguing that it was immune from suit. The trial court denied FHP’s motion, ruling that disputed issues of material fact existed as to FHP’s negligence.

On appeal of the order, the First District Court of Appeal found that FHP had a good argument that it was immune from suit as a matter of law, and that the trial court’s refusal to grant summary judgment was improperly based on unrelated issues of fact. Yet the First District Court found itself constrained by the jurisdictional requirement of Rule 9.130, as the trial court had never expressly mentioned FHP’s immunity as a matter of law.

The First District then noted some recent Florida Supreme Court opinions tending toward the federal standard, for example permitting interlocutory review of orders on immunity without mentioning any explicit determinations by the trial court. So the First District went ahead and certified a question of great public importance, asking whether an explicit reference to immunity as a matter of law is still required, when the issue of immunity is unquestionably a matter of law.

Today, the Florida Supreme Court expresses its agreement with FHP and the First District Court, finding that the jurisdictional requirement of a trial court’s explicit determination of immunity as a matter of law makes little sense. However, rather than straining to interpret Rule 9.130 in a way that makes more sense, the Florida Supreme Court simply amends it, so that now interlocutory orders denying entitlement to immunity, in other contexts as well, are appealable regardless of whether they were explicitly decided as a matter of law.

As guidance, the Florida Supreme Court instructs trial courts to determine immunity as early in the proceedings as possible, while at the same time noting that trial courts are not required to hold pre-trial evidentiary hearings to determine the issue. In other words, if a pretrial determination as to sovereign immunity really does involve disputed issues of material fact, it may still be appealed, jurisdictionally, but that appeal may fail on the merits.

While the rule undoubtedly makes more sense in its amended form, an unfortunate side effect is the extraordinary lengthening of litigation for those seeking damages from purportedly immune entities. Under the new rule, such entities will always be provided with the ability to appeal pretrial denials of immunity, even when the supposed immunity rests on disputed issues of fact, thus extending the pretrial process by months or years. Let us hope the rule is not abused as a form of litigation by attrition.

Sentencing

In 2018, the Florida Supreme Court held a portion of Florida’s sentencing scheme unconstitutional, as it improperly allowed judges to sentence defendants in excess of the lenient nonstate prison sentences deemed appropriate for some offenses and offenders, based solely on whether the judge found the defendant to be a danger to the public. The court ruled that this violated the Sixth Amendment and went against U.S. Supreme Court case law requiring that any punishments above or beyond mandatory sentences must be submitted to the jury.

Today, the Florida Supreme Court quashes the First District Court’s revival of a previous version of the statute, which simply provided for more onerous sentences in every case and contained no provisions for findings of dangerousness.

In Gaymon v. State, the defendant admitted to violating his probation, and based on his scoresheet and other factors was entitled to a nonstate prison sentence of no more than one year in county jail. But the trial court judge made a finding of dangerousness and sentenced Gaymon to five years in state prison. On appeal, the First District found that the proper remedy for the unconstitutional provision was to revive the prior statute, which simply would have required a five-year state prison sentence.

In its opinion, the Florida Supreme Court reasons that revival of the statute was improper, as it went against the Legislature’s intent in enacting the statute in the first place. Thus, it rules, the proper remedy for harmful error resulting from a trial judge’s improper finding of dangerousness under the statute is to remand for resentencing. On remand, the State can request the empanelment of a jury to make a finding as to dangerousness, thus allowing for a sentence in excess of the standard maximum. Otherwise, the trial judge is limited by the maximum nonstate prison sentence: one year in county jail.