The Wrong Door Week: Florida Caselaw, Week of August 28, 2026

The State of Florida has told its own Supreme Court that one of its sentencing statutes is unconstitutional. The statute puts people in prison for life.

That concession is sitting in a footnote.

And every defendant who has raised the argument has lost anyway, because not one of them has come through the right door. This week, two more doors closed.

I'm Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida's appellate courts handed down this week, case by case, for the lawyers who'd rather hear them than read them.

Here's the thing about this week. Nobody lost on the merits. I read every substantive opinion the districts published, and not one of them decided whether anybody was actually right. Two defendants lost a Sixth Amendment sentencing argument without any court ever reaching it. A man in civil commitment lost half his case because he filed the wrong kind of challenge. A hospital asked for cert and got turned away, and a law firm asked the same court for the same thing the same week and won. Every one of these came down to procedure.

So that's the theme. The wrong door week. Let's get into it.

The first case is Curry Lamont Hawkins against the State, Third District, and look at the numbers on this one: a 2023 appeal from a 1997 Miami-Dade case, decided this week. Chief Judge Scales, Judge Miller, and Judge Rebull on the panel.

Hawkins had already won something. A postconviction order back in 2023 vacated two of his life sentences, for attempted first degree murder and burglary with an assault or battery while armed, because they'd been improperly enhanced under the old habitual felony offender statute. On resentencing the court brought those two counts down to twenty two years each. But his life sentence for armed robbery stayed exactly where it was.

So Hawkins filed a motion to correct sentencing error and made two arguments. First, that his habitual offender designation came from a judge finding the qualifying facts instead of a jury, which he says violates Erlinger against the United States, the Supreme Court's 2024 decision. Hold that name, because the whole back half of this episode is about it. Second, that his sentences were a package, so when the court reduced two of them it should have revisited all of them.

He lost both. On Erlinger, the answer was one sentence: Erlinger is not retroactive to a sentence that was already final when Erlinger came down. That's Wainwright, from the Florida Supreme Court last year. Hawkins's case went final decades ago, so the newest Sixth Amendment law in the country simply does not reach him.

On the sentencing package, the panel said it was bound by its own precedent, a 2013 case called Reynolds that squarely rejected the argument. But look at the opinion's last citation, because that fight isn't over. The Second District rejected the same package argument in a case called Phillips and certified the question to the Florida Supreme Court as one of great public importance. The court took it in 2024, and the Third District said in this very opinion that it's still pending. Which means the argument Hawkins just lost is sitting on the Supreme Court's desk right now.

And one craft note worth stealing. Hawkins's lawyer conceded that Reynolds bound the panel, and the opinion calls the concession proper and commendable. That's how it's done. You don't pretend binding precedent away. You concede it, you preserve the issue, and you keep your credibility for the fight that's still winnable. The takeaway: if you have a multi-count resentencing anywhere in your caseload, raise the package argument and preserve it, because Phillips could change the answer.

The next case is Charles Morgan Carpenter against the State, First District, out of Franklin County, Judge Allman below. Roberts, Winokur, and Nordby on the panel. And it's the same Sixth Amendment argument as Hawkins, decided the very same day, in a different district, and it lost at a different door.

A jury convicted Carpenter of burglary of a dwelling with a battery, plus criminal mischief and petit theft. The court sentenced him to life as a prison releasee reoffender. The PRR statute works like this: commit a qualifying offense within three years of release from a state prison, and the maximum sentence becomes mandatory. The fact that triggers all of that, the release date, was found by the judge. Not the jury.

Carpenter said that violates Apprendi and its progeny. And notice what the First District did not say. It did not say he was wrong. It said he was in the wrong vehicle. He'd raised the claim in a rule 3.800(b)(2) motion, and an Apprendi claim can't travel in a 3.800(b) motion at all, because it alleges an error in the sentencing process, not an error in the sentencing order. Process errors have to be preserved the old fashioned way, by objecting at sentencing, right there, out loud, on the record. Carpenter didn't. Affirmed.

Put Hawkins and Carpenter side by side and you get the shape of the week. Same constitutional argument, two districts, two doors, both shut, and no court anywhere touching the question of whether the argument is actually correct. Hold that thought for the deep dive, because it gets stranger.

The next case is Aaron Shaw against the State, Third District. Chief Judge Scales again, with Judges Miller and Bokor. Shaw has been civilly committed under the Jimmy Ryce Act since 2008, and the record behind that commitment is grim: sexual battery in 1985, sexual assault with a weapon and kidnapping in 1988, and a long institutional history of violence. Under the Act, a committed person gets a limited annual hearing on whether there's probable cause that his condition has changed enough to make release safe. The trial court said no probable cause.

Shaw challenged that order two ways at once: a direct appeal and a petition for certiorari. Belt and suspenders, you'd think. Except certiorari doesn't work that way. The court dismissed the cert petition for lack of jurisdiction, because certiorari only exists for harm that can't be fixed on plenary appeal, and this order is fully reviewable by appeal. Then it took up the appeal and affirmed, finding due process was afforded and the order supported by competent substantial evidence.

The takeaway is about the tool, not the result. Filing an appeal and a cert petition against the same order isn't extra protection. One of them is the right vehicle and the other one gets dismissed, and you've spent pages and filing fees teaching the court you weren't sure which was which.

One more criminal case, and it's one line long. State of Florida against Jenkins, Second District, out of Sarasota County, Judge Dana Moss below. The State appealed. The State lost. Per curiam, affirmed, no opinion, with the Public Defender's office on the winning brief. A PCA gives us nothing else, so I won't pretend to know what happened in that courtroom. But an affirmance without opinion in the State's own appeal means a Sarasota trial judge made a ruling the State hated, and the Second District needed exactly one word to keep it in place. Whoever won that motion below, well done.

Quick pause, colleague to colleague. My firm handles DUI, criminal defense, and personal injury across Tampa Bay. If a case walks through your door that you'd rather send out, call or text 727-472-8096. I gladly accept referrals.

Now the injury side, and the best story of the week. The Law Offices of Adorno-Cunill and Damas against Dr. Mark Dylewski, Third District, Judge Logue writing.

Dr. Dylewski is a thoracic surgeon, a pioneer of robotic assisted lung surgery, formerly chairman of thoracic oncology at Baptist Health. He hired the firm for his divorce, and in 2017 he signed a marital settlement agreement paying his ex-wife eighteen thousand five hundred dollars a month in alimony, based on him earning nine hundred fifty thousand a year.

Then he sued his own divorce lawyers for malpractice. His theory: that nine fifty was a temporary spike, inflated by extra work he took on to pay for a house under construction in Pinecrest, and he told his lawyers he planned to scale back. Competent counsel, he says, would never have let a temporary peak set a permanent alimony number.

The firm's defense included failure to mitigate: if the alimony was so excessive, why didn't he go back to court and ask to reduce it? And to prove that, the firm subpoenaed his income records from Baptist Health from 2018 forward. His post-settlement income. The trial court blocked the whole thing as irrelevant, reasoning that whether nine fifty was overstated is answerable from the past alone.

The Third District granted certiorari and quashed the order. And here's why this one got through the door that Shaw's petition and, as you'll hear in a second, a hospital's petition couldn't. Denial of discovery usually isn't certiorari material, because most discovery you can fight about after final judgment. But there's a recognized exception: when the denied discovery is relevant and the denial effectively eviscerates a party's claim or defense, cert lies. That's Giacalone out of the Second District. You can't prove the doctor failed to mitigate excessive alimony without knowing what he earned while allegedly failing to mitigate it. Wipe out the discovery and you've wiped out the defense, and no appeal after judgment un-rings that bell.

The privacy piece matters too. Financial records sit under article one, section twenty three of the Florida Constitution, and courts protect them. But protection isn't immunity. When finances are relevant to a claim or defense, they're discoverable, with conditions to limit dissemination. That's Friedman from the Florida Supreme Court.

And now count the certiorari scoreboard for the week, because the districts handed us a matched set. Shaw's petition, dismissed, because appeal was available. North Florida Regional Medical Center, an HCA hospital up in the First District, petitioned for cert against the Maloneys and got a one word denial. And the Adorno-Cunill firm, granted, order quashed. Three petitions, three outcomes, one lesson. Certiorari is not a second appeal. It's a narrow gate with two locks, irreparable harm and a departure from the essential requirements of law, and the eviscerated defense is one of the few keys that turns both.

One short one for the PIP lawyers. Feijoo against Progressive, Third District, a citation PCA, which means the court decided it with a string of citations and no discussion. So anything I say about the facts is a reading of the citations, and I'll flag it as exactly that. But the citations only fit one shape. The lead case holds that submitting to an examination under oath is a condition precedent to PIP benefits under section 627.736(6)(g), and that the insurer doesn't have to show prejudice when the claimant skips it. If you're on the provider side, calendar the EUO like a statute of limitations, because missing it doesn't shift any burden to the carrier. It just ends the claim.

And one piece of housekeeping with a date on it, from the Florida Supreme Court, unanimous. The court amended appellate rules 9.020 and 9.100, effective October first at one minute past midnight. The definition of lower tribunal gets rewritten. In original proceedings, the official who issued the order you're challenging gets served with the petition, and then nothing else unless they file a notice electing to receive service. And in mandamus and prohibition, the judge or lower tribunal is a formal party, named in the body of the petition but not the caption, and served with everything. If you have writ templates in your office, they're stale on October first. Fix them in September.

The rest of the week, and I mean roughly a hundred more criminal decisions, is per curiam affirmances. A huge stack of them came out of the Sixth District on one day, clearing appeals from 2023 and 2024 dockets. A hundred affirmances without opinion is a hundred reminders of the same thing: by the time you're in the district court, the record is everything, and the record was built or not built by somebody in a trial courtroom months or years earlier. Which is a perfect segue.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn't do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end. This week it's the Apprendi line, because Hawkins and Carpenter both died on procedure while the merits of their shared argument sat untouched. And when I went looking for those merits, I found something that genuinely surprised me.

Start with the doctrine, because it's one sentence. Apprendi against New Jersey, 2000: any fact that increases the range of punishment a defendant faces must be found by a jury beyond a reasonable doubt, or admitted by the defendant. Not by a judge. Alleyne extended that to facts that raise the mandatory minimum. And in June 2024, Erlinger against the United States applied it to recidivist sentencing. Erlinger was an Armed Career Criminal Act case, where the enhancement required finding that the defendant's prior offenses happened on separate occasions. A judge made that finding. The Supreme Court said the jury had to. And Justice Gorsuch answered the argument that these findings are usually easy with a line built for the office wall: there is no efficiency exception to the Fifth and Sixth Amendments.

Now look at Florida's prison releasee reoffender statute through that lens. The enhancement turns on a fact: was the new offense committed within three years of release from prison. A judge finds it. The consequence isn't a nudge, it's the statutory maximum, made mandatory. In Carpenter's case, that fact was the difference that locked in life. The Erlinger argument against that arrangement writes itself, and Florida's defense bar has noticed. I ran the search this week, and since Erlinger came down there are roughly two dozen Florida appellate decisions wrestling with it against the PRR and habitual offender statutes.

So how has the State fared on the merits? Here's the surprise. It hasn't defended them. In May, the Florida Supreme Court decided Maye against the State, a PRR case raising exactly this challenge. The court never reached the question, and I'll come back to why. But footnote thirteen of the majority opinion says this, and I'm quoting: were Maye's challenge to the PRR statute properly raised, the State concedes that Florida's PRR statute is unconstitutional under the Supreme Court's decision in Erlinger.

Read that again. The State of Florida, in its own briefing to the state's highest court, conceded that the PRR statute is unconstitutional under Erlinger. That's not a holding. No court has ruled it, a concession doesn't bind the next panel, and the Attorney General could change position tomorrow. But it is the State's litigating posture, in writing, in the Southern Reporter, and I'd want it in front of every judge sentencing my client as a releasee reoffender.

So why hasn't anyone won? Because of the doors, and now I can give you the whole map, and this week's cases are the last two pieces of it.

Door one was rule 3.800(a), the illegal sentence motion, available any time. For a decade that door looked open, because a 2014 case called Plott said Apprendi claims were cognizable there. Maye slammed it. The court receded from Plott by name and held that Apprendi claims are subject to harmless error review, which means they're process claims, not illegal sentence claims, and 3.800(a) doesn't carry them. If you have a form motion or a brief bank entry citing Plott for that point, it's wrong now. Justice Francis put the distinction in six words: it's a challenge to the how, not the what.

Door two was rule 3.800(b), the sentencing error motion filed while the appeal window is open. Carpenter closed it this week in the First District, following its own July decision in Shinault. Same logic. Process, not order.

Door three was collateral relief for cases already final. Wainwright closed that last year: Erlinger is not retroactive, and the United States Supreme Court denied cert. Hawkins felt that one this week. If the case was final before June 2024, the argument is gone.

Which leaves exactly one door, and it's been standing there the whole time. Jackson against the State, Florida Supreme Court, 2008: sentencing process errors are preserved by contemporaneous objection. Object at the sentencing hearing, on the record, on Fifth and Sixth Amendment grounds, demand that the jury, not the judge, find the qualifying facts beyond a reasonable doubt, and take it up on direct appeal in a case that isn't final. That is the only vehicle left standing, and nobody who's reached an appellate court so far was riding in it.

So here's the Monday morning practice point, and it's as concrete as this show gets. If you have any client facing PRR or habitual offender sentencing, object at the sentencing hearing. Out loud. On the record. Cite Erlinger, cite Apprendi, demand jury findings, and if you want to sharpen it, hand the judge Maye and point at footnote thirteen, because the State has already told the Florida Supreme Court what it thinks of its own statute. The objection costs you two minutes. Skipping it costs your client the issue forever.

Two honest caveats before you get excited, because this show doesn't sell false hope. First, harmless error is waiting on the other side of the door. In Erlinger itself, Justice Kavanaugh concluded that any error there was harmless, Chief Justice Roberts agreed that harmless error review applies to these violations, and the First District said in a footnote this week that even a preserved Carpenter claim would have been harmless on those facts, because the release date usually isn't seriously disputable. So preservation gets you in the courtroom, not across the finish line. The strongest cases will be the ones where the release date or the qualifying priors are actually contestable. And second, a concession is not a decision. The question is genuinely open, which is precisely why it has to be preserved and can't be predicted.

Justice Labarga, dissenting in Maye, wrote that the protections of Apprendi, Alleyne, and Erlinger are too often treated as mere suggestions rather than binding constitutional requirements. Whatever you make of the merits, the procedural map I just gave you is how that happens. Rights don't usually die by ruling. They die by vehicle.

If you want this week's opinions, plus Maye with footnote thirteen flagged, plus a one page objection script for PRR and habitual offender sentencings, email me and I'll send the set.

So that's the week. The same Sixth Amendment argument turned away at two different doors in two different districts. A certified question on sentencing packages still waiting at the Supreme Court. One man's certiorari petition dismissed, a hospital's denied, and a law firm's granted, all on the same narrow gate. A PIP claim that ended the day the examination under oath was skipped. New service rules for writs landing October first. And a footnote in which the State of Florida gave up the merits of a life sentence statute while winning every case about it.

The pattern, if you want one: this week the law rewarded the lawyers who knew which door they were standing in front of, and it punished everyone else without ever asking whether they were right. The merits will keep. The vehicle won't.

One caveat, colleague to colleague. These are summaries, most of these decisions aren't final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

I'm Rory Safir. If you want any of this week's opinions or that objection script, email me at Rory at the Safir lawyer dot com and I'll send them over.

Take care of yourself, and take care of your clients.