798 So.2d 767 (Fla.App. 2 Dist. 2001), 2D00-2685, Holt v. Rowell

Docket Nº:Case No. 2D00-2685
Citation:798 So.2d 767, 26 Fla. L. Weekly D 2028
Opinion Judge:The opinion of the court was delivered by: VILLANTI, Craig C., Associate Judge
Attorney:Bruce A. Walkley of Walkley & Walkley, Tampa, for Appellant.
Case Date:August 22, 2001
Court:Florida Court of Appeals, Second District

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798 So.2d 767 (Fla.App. 2 Dist. 2001)

26 Fla. L. Weekly D 2028




Case No. 2D00-2685

Florida Court of Appeals, Second District.

August 22, 2001

Appeal from the Circuit Court for Hillsborough County; Manuel Menendez, Jr., Judge.

Page 768

Bruce A. Walkley of Walkley & Walkley, Tampa, for Appellant. James W. Holliday of Prugh & Associates, Tampa, for Appellee.

VILLANTI, Craig C., Associate Judge

Julianne M. Holt, on behalf of the Office of the Public Defender of the Thirteenth Judicial Circuit of Hillsborough County, appeals a judgment in the amount of $17,004 entered in favor of John C. Rowell in a legal malpractice action. We affirm that portion of the judgment finding Ms. Holt's employees negligent in their representation of Mr. Rowell and awarding him damages for his lost earning capacity. We reverse, however, that portion of the judgment awarding Mr. Rowell "loss of liberty" damages based upon the emotional or psychological harm caused when the malpractice resulted in his extended incarceration. We conclude that the impact rule, as currently applied in Florida, prohibits Mr. Rowell from recovering emotional or psychological damages, because Mr. Rowell suffered no impact and no physical injury resulting from the emotional or psychological harm. Because the impact rule has not been previously applied in this context in Florida, and because we question whether it should be applied to bar the recovery of loss of liberty damages when a criminal defense attorney's negligence results in a client's unnecessary incarceration, we certify to the Supreme Court of Florida a question of great public importance regarding whether the impact rule should apply to prohibit the recovery of non-economic damages in a legal malpractice claim when the negligence of a criminal defense attorney results in a loss of liberty and resulting emotional or psychological harm.

In May 1995, John Rowell sold two firearms to a pawnshop. Based upon these sales, Mr. Rowell was arrested on July 6, 1995, in Marion County, Florida, for two counts of felon in possession of a firearm. In fact, Mr. Rowell was innocent of these charges. Although Mr. Rowell had been convicted of a felony in 1966 when he was 22 years of age, he had received a restoration of his civil rights on June 18, 1975. Mr. Rowell was unable to convince the arresting officers that he was innocent of the crimes charged. He was transported to the Hillsborough County Jail, where he remained overnight until his first appearance hearing scheduled for the following morning, July 7, 1995.

In the Thirteenth Judicial Circuit, preliminary presentation hearings are often performed via closed circuit television. The defendants are physically located at the jail, and an assistant public defender is assigned to this location. A second assistant public defender is present in the courtroom with the presiding judge and the assistant state attorney.

At Mr. Rowell's preliminary presentation hearing on the morning of Friday, July 7, an assistant public defender at the jail spoke with Mr. Rowell, and Mr. Rowell signed an affidavit of indigency and an invocation of rights, thus establishing an attorney-client relationship with the Office of the Public Defender. Mr. Rowell had in his possession a document indicating that his civil rights had been restored. When the trial judge called Mr. Rowell's case, Mr. Rowell told the trial judge directly that he had proof of the restoration of his civil rights and held up the document. Because the trial judge could not see the contents of the document, the trial judge instructed the assistant public defender to obtain a copy of that document so that the case could be resolved if Mr. Rowell was indeed permitted to possess a firearm. On the videotape of this event, Mr. Rowell can be seen handing the document to the assistant public defender at the jail. It is not clear what the assistant public defender who received the document did with it

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after this hearing. At the time of trial, the assistant public defender could not remember following up on the judge's instructions.

The first appearance judge, concerned that Mr. Rowell might be wrongfully charged, ordered that Mr. Rowell's case be placed on the docket for review on Tuesday, July 11, four days later. This hearing never occurred. According to the assistant public defenders involved in this case, they took no responsibility in keeping track of these types of hearings; instead, they traditionally relied exclusively upon the clerk of the court to properly document and schedule them. It appears that the clerk in this case mistakenly noted that the hearing would be held on July 15, a Saturday on which no hearings were held. Although hearings presumably occurred before this judge with the participation of assistant public defenders on July 11, Mr. Rowell's case was not addressed. As a result, Mr. Rowell remained in jail past July 11 and July 15.

Meanwhile, through the natural process of opening files, Mr. Rowell's case was assigned to a third assistant public defender. This attorney first reviewed the file on July 12, 1995. The file did not contain the document indicating Mr. Rowell's civil rights had been restored or any notation that a hearing had...

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