source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Brian WATERHOUSE, Petitioner, v. Michael W. MOORE, Respondent.
    No. SC01-2845.
    Supreme Court of Florida.
    Nov. 21, 2002.
    Rehearing Denied Feb. 12, 2003.

      Robert A. Norgard, Bartow, FL, for Petitioner.
    Richard E. Doran, Attorney General, and Candance M. Sabella, Senior Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

Robert Brian Waterhouse petitions this Court for a writ of habeas corpus. We have jurisdiction under article V, section 3(b)(9) of the Florida Constitution. For the reasons expressed below, we conclude that Waterhouse’s claims are meritless, and thus deny relief.

Facts and Procedural History

The petitioner is currently under sentence of death pursuant to conviction for the 1980 first-degree murder of Deborah Kammerer. The facts surrounding the crime were fully detailed in our opinion affirming the petitioner’s conviction and sentence on direct appeal. See Waterhouse v. State, 429 So.2d 301, 302-04 (Fla.1983). Subsequent to the affirmance of Waterhouse’s conviction and sentence by this Court in 1983, we granted Waterhouse a writ of habeas corpus and vacated his sentence of death, because his original jury was not given the opportunity to consider nonstatutory mitigating evidence when considering the sentence to be recommended to the sentencing trial court. See Waterhouse v. State, 522 So.2d 341, 344 (Fla.1988). Upon resentencing, the jury unanimously recommended the death penalty and the trial court again imposed a sentence of death. See Waterhouse v. State, 596 So.2d 1008, 1011 (Fla.1992). This Court affirmed on direct appeal. See id. Waterhouse then collaterally attacked his sentence and conviction by filing a motion under Florida Rule of Criminal Procedure 3.850. The circuit court in which the action was filed summarily denied Waterhouse’s motion, and this Court affirmed the denial. See Waterhouse v. State, 792 So.2d 1176 (Fla.2001). Water-house now petitions this Court for a writ of habeas corpus, asserting four claims.

Analysis

As an initial matter, it is necessary at the outset for us to address the State’s contention that the entirety of Water-house’s ineffectiveness claims are procedurally barred because they have been raised and addressed by this Court in a prior proceeding. In this Court’s opinion addressing Waterhouse’s appeal of the denial of his first rule 3.850 motion and his first petition for habeas corpus, we held that his claims regarding the ineffectiveness of his appellate counsel were “rendered moot by our granting of the writ” of habeas corpus. Waterhouse, 522 So.2d at 344. It is clear from this statement that the substance of these claims was not addressed, and they have not been considered by this Court in any of Waterhouse’s subsequent proceedings. Therefore, we find no legal bar to their consideration in the instant cause. Thus, we fully examine the entirety of Waterhouse’s claims.

Waterhouse first contends that the court presiding over his original trial erred by excusing two jurors for cause, and that his appellate counsel rendered constitutionally defective assistance of counsel in not properly presenting this claim on appeal. The record reveals that juror Ashcraft was excused based upon her comments during voir dire in response to questions regarding the imposition of the death penalty. The following colloquy with the State Attorney is telling:

PROSECUTOR: Mrs. Ashcraft, in response to one of defense counsel’s statements, you said you didn’t think you could vote to recommend the death penalty, is that correct?
ASHCRAFT: That’s correct.
PROSECUTOR: So if the defendant were found guilty as charged in this case, are you telling me now then that you don’t believe that you could vote to impose the death penalty under any circumstances?
ASHCRAFT: To vote to ...
PROSECUTOR: Vote to condemn him to death?
ASHCRAFT: No, I’m sorry.

This exchange between Ashcraft and the State Attorney clearly reveals that reasonable doubt about Ashcraft’s ability to render an impartial verdict was before the trial court, and thus her removal from the jury panel was entirely warranted. See Singleton v. State, 783 So.2d 970, 973 (Fla.2001). Indeed, because a trial court’s ruling on a challenge for cause must be sustained absent an abuse of discretion, and this discretion is only abused where no reasonable person would adopt the view taken by the trial court, see, e.g., id., there was no basis then, nor does one exist now, upon which to disturb the trial court’s ruling on this issue.

Waterhouse also contends that the trial court erred in excusing juror Clark. Initially, Clark revealed his opinions regarding circumstantial evidence during the following exchange:

PROSECUTION: Mr. Clark, is my understanding correct, sir, that you could not vote to impose the death penalty under any circumstances if the case involved circumstantial evidence?
CLARK: Yes, sir.
PROSECUTION: And I believe you also stated that you would not be able to consider the guilt phase impartially on circumstantial evidence alone, is that correct?
CLARK: That’s right.

Following questioning by defense counsel, as well as specific instruction by the court regarding circumstantial evidence and the proper weight it may be accorded, Clark was again questioned by the State. This questioning yielded the following discussion:

PROSECUTION: [Y]ou told me earlier, unless I misunderstood you, that you did not believe that you could vote to convict in a capital case on circumstantial evidence, is that correct?
CLARK: Not fully, yes. PROSECUTION: Do you still believe that?
CLARK: Yes.

Clearly, the answers given by juror Clark reveal a reluctance to accord circumstantial evidence any significant weight in a capital trial. This certainly is a basis upon which a trial court may excuse a juror for cause. See Holland v. State, 39 Fla. 178, 22 So. 298 (1897); Olive v. State, 34 Fla. 203, 15 So. 925 (1894). Additionally, this Court will not disturb a trial court’s ruling on the competency of jurors on appeal absent manifest error. See, e.g., Davis v. State, 461 So.2d 67, 71 (Fla.1984). Because there was no basis upon which this Court would have granted relief based upon the trial court’s removal of jurors Ashcraft and Clark on direct appeal, Wa-terhouse’s assertion of ineffective assistance of counsel must fail. See Engle v. Dugger, 576 So.2d 696 (Fla.1991); Card v. State, 497 So.2d 1169 (Fla.1986).

In his second claim, Waterhouse contends that his appellate counsel’s performance was constitutionally deficient because he did not assert that the exposure of the jury panel to a pamphlet containing general advice and instruction regarding jury service prejudiced Waterhouse’s right to a fair trial. Whether or not the jury’s consideration of this “unofficial guide” constitutes reversible error, however, is immaterial in the instant action. Waterhouse did not request a mistrial, nor did he request any type of voir dire after the trial court’s discovery that the jurors had viewed nonrecord material while empaneled. Additionally, the record reflects that the trial court provided cautionary and corrective instructions which included instructions to the jurors, prior to their deliberations, that they were to consider the case before them solely on the evidence before them and the instructions given by the court, and that they were not to consider matters or material from outside the courtroom.

Because no motion for mistrial or request for corrective action was registered with regard to the jury pamphlet, this claim was not preserved for appeal. An examination of the material identified by Waterhouse, in conjunction with the trial court’s instructions, leads us to conclude that no fundamental error occurred in the instant case. Fundamental error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). Because appellate counsel cannot be faulted for failing to raise a claim which would have been deemed meritless on appeal, see, e.g., Engle, 576 So.2d at 704; Card, 497 So.2d at 1177, this claim is without merit.

In his third claim, Waterhouse contends that' his appellate counsel rendered constitutionally ineffective assistance in faffing to challenge the trial court’s admission of evidence regarding the petitioner’s deviant sexual proclivities. Indeed, at trial, the jury heard testimony regarding Waterhouse’s preference for anal and somewhat abusive sex. Water-house is misdirected in asserting this claim in the instant action, however, because it was raised, in substance, in his first direct appeal. In that action, a challenge was presented to both the admission of testimony which described a statement made by Waterhouse relating that he had inserted a beverage bottle into his victim’s rectum, as well as testimony regarding his affinity for anal sex. In this Court’s opinion affirming Waterhouse’s conviction and sentence of death, we addressed the issue, holding that the statements were properly admitted into evidence. See Waterhouse, 429 So.2d at 306. The substance underlying this claim has previously been raised and decided adversely to Waterhouse, and, therefore, its reassertion now as an ineffectiveness claim is entirely without merit. See Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) (“If [an] issue is raised on direct appeal, it will not be cognizable on collateral review.”).

Finally, Waterhouse contends that his appellate counsel failed to render effective assistance of counsel because he did not assert that the trial court erred in denying Waterhouse a continuance. Wa-terhouse asserts that the State presented his trial counsel with the names of exculpatory witnesses only three days prior to trial, and that the trial court should have granted the defense a continuance to conduct depositions of these witnesses. Wa-terhouse contends that the trial court’s inflexibility prejudiced his case and prevented him from receiving a fair trial.

This Court has already examined the effect that the State’s late disclosure of these witnesses had upon Waterhouse’s case, and concluded that he was not prejudiced. In our opinion on Waterhouse’s appeal of the denial of his first postconviction motion, we concluded:

There is no ... undermining of confidence in the outcome in this case.... [D]espite knowing throughout the trial of the two exculpatory witnesses, Water-house declined to call one of them, believing his testimony would do more harm than good. Thus, although it seems clear that the prosecution should have timely disclosed the information to Waterhouse, it has not been shown that Waterhouse was in any way prejudiced by the nondisclosure, or late disclosure, of the information.

Waterhouse, 522 So.2d at 343. While our examination of this claim in Waterhouse’s previous action was pursuant to a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), analysis, the conclusion is still entirely applicable to Water-house’s instant claim. As we have already concluded that no prejudice flowed from the State’s late witness disclosure before trial, no prejudice resulted from the trial court’s refusal to continue the case based upon the very same late disclosure issue. Thus, Waterhouse’s ineffective assistance of appellate counsel claim must fail.

Conclusion

Based upon the forgoing, we find no grounds upon which to grant relief in this case. Therefore, we deny Waterhouse’s petition for writ of habeas corpus.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, and LEWIS, JJ., and HARDING, Senior Justice, concur.

QUINCE, J., recused.

      . Waterhouse contends that he received ineffective assistance of appellate counsel because his appellate attorney failed to assert (1) that the trial court presiding over his original trial erred by excusing two jurors for cause, (2) that Waterhouse's constitutional rights to a fair trial were violated when jurors improperly viewed a pamphlet purporting to assist them in their deliberations, (3) that Water-house's right to a fair trial was violated by the admission of evidence associated with his deviant sexual proclivities, and (4) that the trial court improperly denied Waterhouse's pretrial motion for a continuance.


text:
    Michael George BRUNO, Sr., Petitioner, v. Michael W. MOORE, etc., Respondent.
    No. SC02-467.
    Supreme Court of Florida.
    Dec. 5, 2002.
    Rehearing Denied Feb. 11, 2003.

      Todd G. Scher, Litigation Director, Fort Lauderdale, FL, for Petitioner.
    Richard E. Doran, Attorney General, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

Michael George Bruno petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons expressed below, we deny the petition.

Bruno was convicted of first-degree murder and sentenced to death for the 1986 murder of Lionel Merlano. The facts of the underlying crime were as follows:

On August 8, 1986, appellant Michael Bruno and his fifteen-year-old son, Michael Jr., were in the apartment of a friend, Lionel Merlano, when Bruno beat Merlano with a crowbar. Bruno then sent Michael Jr. elsewhere in the apartment to fetch a handgun and, when the boy returned with a gun, Bruno shot Merlano twice in the head. Bruno was arrested several days later and gave a taped statement wherein he at first denied any knowledge of the murder but then later admitted committing the crime, claiming it was self-defense. Michael Jr. also gave a full statement to police. Prior to being arrested, Bruno made numerous inculpatory statements to friends concerning both his plan to commit the murder and the commission of the crime itself. Police found the gun in a canal where a friend, Jody Spalding, saw Bruno throw it.
Bruno was charged with first-degree murder and robbery (he stole a stereo from the apartment after the murder) and his strategy at trial was to raise a reasonable doubt in jurors’ minds by-claiming that Jody Spalding was the killer. He was convicted as charged, and the judge followed the jury’s eight-to-four vote and imposed a sentence of death based on three aggravating circumstances and no mitigating circumstances.

Bruno v. State, 807 So.2d 55, 60-61 (Fla.2001) (footnote omitted). On direct appeal, this Court affirmed the convictions and sentence of death. See Bruno v. State, 574 So.2d 76 (Fla.1991). Bruno subsequently filed a Florida Rule of Criminal Procedure 3.851 motion, which was denied by the trial court. This Court recently affirmed the trial court’s denial of that motion. See Bruno, 807 So.2d at 60.

Bruno now petitions this Court for a writ of habeas corpus, raising three claims. First, Bruno argues that this Court failed to conduct an adequate harmless error analysis on direct appeal. We initially note that this issue is procedurally barred. See Bottoson v. State, 813 So.2d 31, 35 (Fla.2002) (“This Court has consistently held that habeas claims wherein the defendant challenges this Court’s previous standard of review in the case are procedurally barred.”). As pointed out by the State, Bruno raised this issue in his motion for rehearing on direct appeal and that this Court denied that motion.

Even if the claim was not procedurally barred, we still would find no merit to the claim. The judge presiding over Bruno’s trial found six aggravators: (1) prior violent felony; (2) the murder was committed in the course of a robbery; (3) it was committed to avoid arrest; (4) it was committed for pecuniary gain; (5) it was heinous, atrocious, or cruel (HAC); and (6) it was cold, calculated, and premeditated (CCP). The trial judge stated in the sentencing order that only three aggravators were applicable because aggravators (1), (2), and (3) above were based on the same aspect of the criminal episode and therefore were considered by the Court as a single aggravating circumstance. We recognize that the trial judge’s sentencing order is confusing. If aggravators (1), (2), and (3) merged into a single aggravator, there would still be four aggravators: the merged aggravator plus the remaining three — numbers (4), (5), and (6). Since the trial judge stated that only three aggrava-tors were applicable, it appears that the trial judge meant to merge the first four aggravators.

On appeal, this Court concluded that only three aggravators applied:

[T]he judge concluded that there were only three aggravating circumstances which could be considered in passing sentence because he concluded that the circumstances listed as (a), (b) and (c) were based on the same aspect of the criminal episode.
We agree with the trial court that only three aggravating circumstances were proper for consideration, although we arrive at this conclusion in a somewhat different manner. The aggravating circumstance of a prior violent felony was inapplicable because the felony in question was the contemporaneous conviction of the robbery of Merlano. However, the trial court did properly find that the murder was committed during a robbery and was committed for pecuniary gain. These two circumstances are based on the same aspect of the criminal episode and should properly be considered as a single aggravating factor. The evidence was insufficient to support the finding that the murder was committed for the purpose of avoiding or preventing a lawful arrest. Standing alone, the fact that the victim could identify the murderer does not prove beyond a reasonable doubt that the elimination of a witness was a dominant motive for the killing.
... Therefore, we conclude that the murder was aggravated by the three ■following valid factors: (i) that the murder was committed during a robbery and for pecuniary gain; (ii) that the murder was heinous, atrocious, or cruel; and (iii) that the murder was cold, calculated, and premeditated.

574 So.2d at 81-82 (citations omitted). This Court ultimately upheld Bruno’s death sentence:

In light of three statutory aggravating circumstances and no statutory mitigating circumstances, we find no error in the judge’s sentence of death. We also reject Bruno’s argument that his sentence is disproportionate to other cases involving the death sentence.

Id. at 83.

Bruno claims that when this Court determined on direct appeal that several of the aggravators were not supported by the evidence, it was required to conduct a harmless error analysis. Bruno asserts that this Court did not conduct a harmless error analysis, or if it did, it was inadequate. Bruno asserts that the proper test for determining whether an error is harmless is “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). Bruno cites to Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), as an example of a case where this Court misapplied the harmless error test. In Sochor, both this Court and the United States Supreme Court concluded that the trial judge improperly weighed the CCP aggra-vator since that aggravator was not supported by the evidence. Nevertheless, this Court upheld the death sentence:

We also disagree with Sochor’s claim that his death sentence is disproportionate. The trial court carefully weighed the aggravating factors against the lack of any mitigating factors and concluded that death was warranted. Even after removing the aggravating factor of cold, calculated, and premeditated there still remain three aggravating factors to be weighed against no mitigating circumstances. Striking one aggravating factor when there are no mitigating circumstances does not necessarily require resentencing. Robinson v. State, 574 So.2d 108 (Fla.1991); Holton v. State, 573 So.2d 284 (Fla.1990); James v. State, 453 So.2d 786 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984); Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). Under the circumstances of this case, and in comparison with other death cases, we find Sochor’s sentence of death proportionate to his crime.

Sochor, 580 So.2d at 604. Upon review, the Supreme Court found this Court’s “harmless error” analysis to be inadequate:

Not only does the State Supreme Court’s opinion fail so much as to mention “harmless error,” see Yates v. Evatt, 500 U.S. 391, 406, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991), but the quoted sentences numbered one and five expressly refer to the quite different enquiry whether Sochor’s sentence was proportional.
The State tries to counter this deficiency by arguing that the four cases cited following the fourth sentence of the quoted passage were harmless-error cases, citation to which was a shorthand signal that the court had reviewed this record for harmless error as well. But the citations come up short. Only one of the four cases contains language giving an explicit indication that the State Supreme Court had performed harmless-error analysis. See Holton v. State, 573 So.2d 284, 298 (1990) (“We find the error was harmless beyond a reasonable doubt”). The other three simply do not, and the result is ambiguity.
Although we do not mean here to require a particular formulaic indication by state courts before their review for harmless federal error will pass federal scrutiny, a plain statement that the judgment survives on such an enquiry is clearly preferable to allusions by citation. In any event, when the citations stop as far short of clarity as these do, they cannot even arguably substitute for explicit language signifying that the State Supreme Court reviewed for harmless error.
In sum, Eighth Amendment error occurred when the trial judge weighed the coldness factor. Since the Supreme Court of Florida did not explain or even “declare a belief that” this error “was harmless beyond a reasonable doubt” in that “it did not contribute to the [sentence] obtained,” Chapman, supra, 386 U.S. at 24, 87 S.Ct. 824, the error cannot be taken as cured by the State Supreme Court’s consideration of the case. It follows that Sochor’s sentence cannot stand on the existing record of appellate review. We vacate the judgment of the Supreme Court of Florida, and remand the case for proceedings not inconsistent with this opinion.

Sochor, 504 U.S. at 639-41, 112 S.Ct. 2114.

We find that the instant case is distinguishable from Sochor. In Sochor, the Supreme Court held that the trial judge erred by weighing the CCP factor, and therefore, in order for the error to be considered harmless, this Court was required to conduct a harmless error analysis. In the instant case, despite the confusing sentencing order, the trial court specifically held that only three aggrava-tors were applicable to Bruno’s case: HAC, CCP, and the merged aggravator. On appeal, this Court agreed that the three aggravators weighed by the trial court were applicable to this case. Therefore, no error occurred because all of the aggravators that were actually weighed by the trial court were upheld by this Court. If no error occurred, it follows that there was no need for a harmless error analysis.

Nevertheless, in an abundance of caution, even if the trial court erred in its consideration of the aggravators, we would find such an error harmless beyond a reasonable doubt. As this Court stated in our opinion on direct appeal, the trial record supports the finding of three aggravators in this case: (1) that the murder was committed during a robbery and for pecuniary gain (merged); (2) HAC; and (3) CCP. The trial court determined that Bruno failed to establish any mitigation, either statutory or nonstatutory, and on direct appeal, this determination was upheld. Therefore, any error committed by the trial court was harmless beyond a reasonable doubt in that it did not contribute to the death sentence. Eliminating any such error would have made no difference in Bruno’s sentence.

Bruno further argues that this Court erred in limiting its analysis on direct appeal to only statutory mitigators. He claims that this Court erred in failing to consider nonstatutory mitigating circumstances. There is no merit to this argument. As the State points out, the trial court concluded in the sentencing order that Bruno did not present any evidence in support of nonstatutory mitigation.

We next turn to Bruno’s second claim, wherein Bruno alleges that appellate counsel was ineffective for several reasons. We address each of these reasons in turn.

Appellate counsel’s ineffectiveness is appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In order to grant habeas relief on the basis of ineffectiveness of appellate counsel, this Court must determine

whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069.

Bruno’s first subclaim of ineffectiveness concerns the trial court’s failure to hold a competency hearing. Bruno argues that despite the fact that Dr. Stillman was appointed to evaluate Bruno, no competency hearing was ever held. During the penalty phase, Dr. Stillman testified that Bruno was insane at the time of the offense. After the jury rendered its recommendation, trial counsel moved for a post-trial competency evaluation, which was denied by the trial court. Hence, Bruno claims that he was tried and sentenced even though he may have been incompetent. He claims that appellate counsel was ineffective in failing to raise this issue.

There is no merit to this claim. Prior to trial, defense counsel filed a motion for the appointment of a mental health expert. The trial court entered an order appointing Dr. Stillman. The record would later reveal that Dr. Stillman examined Bruno pretrial and determined that Bruno was neither insane nor incompetent. Since defense counsel did not request a competency hearing prior to trial, the trial court cannot be faulted for not holding one. Therefore, appellate counsel cannot be deemed ineffective for failing to argue that a competency hearing should have been held prior to trial. During the penalty phase, Dr. Stillman opined that Bruno was insane at the time of the crime. Prior to sentencing, the trial court denied defense counsel’s request for a psychological examination.

Appellate counsel did argue on direct appeal that “the trial court erred in failing to conduct an evidentiary hearing [or] declare a mistrial or continuance of the penalty phase when the dispute between trial counsel and his mental health expert was brought to the court’s attention.” 574 So.2d at 88. This issue was summarily rejected by this Court in its direct appeal opinion. See id. Insofar as the instant issue concerns appellate counsel’s failure to argue that the trial court failed to allow a psychological examination after the penalty phase, the issue is substantially similar to the issue already rejected by this Court and is therefore procedurally barred.

Next, Bruno claims that appellate counsel failed to argue on direct appeal that the trial court erred in admitting certain photographs. Appellate counsel’s original brief included the issue, but the original brief exceeded 100 pages and was stricken by this Court. The issue concerning the photographs was not included in the amended brief.

The admission of photographic evidence of a murder victim is within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent abuse. See Gudinas v. State, 693 So.2d 953, 963 (Fla.1997). “While a trial court should exercise caution in admitting particularly gruesome photographs, and in limiting their numbers, such photographs may still be relevant.” Larkins v. State, 655 So.2d 95, 98 (Fla.1995). This Court has upheld the admission of photographs where such photographs were relevant to “explain a medical examiner’s testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Id. at 98.

In this case, the State sought to introduce a group of autopsy photographs during the medical examiner’s testimony at the guilt phase of Bruno’s trial. Over trial counsel’s objection, the trial court permitted the photographs, explaining, “Doctor Ongley has looked at them and indicated to the court that each of them would be of value and assist his testimony—I do not feel they are necessarily redundant and I do not feel they are necessarily gory.” Based on this statement, we conclude that the trial court did not abuse its discretion in admitting the photographs into evidence because they were relevant to show the nature and extent of the victim’s .injuries. See Rutherford v. Moore, 774 So.2d 637, 647 (Fla.2000). Accordingly, appellate counsel was not ineffective for failing to raise this claim.

In his next subclaim of ineffectiveness, Bruno alleges that the trial court failed to order the State to disclose information regarding prospective jurors. Pri- or to trial, defense counsel filed a motion to compel the State to disclose information concerning prospective jurors. Bruno claims that there is no indication in the record that the State supplied this information. Therefore, Bruno claims that the trial court erred in ensuring that this information was disclosed and appellate counsel erred in failing to raise this issue on appeal. However, the burden is on Bruno to prove that the State failed to disclose the information. There is no indication in the record that the State did not disclose the requested information. Since the record does not support Bruno’s claim, he has failed to meet his burden of proof.

Finally, Bruno claims that appellate counsel failed to ensure that a complete record on appeal was available. During the pendency of Bruno’s direct appeal, appellate counsel filed a motion to supplement the record on appeal. The motion sought to include all evidence considered by the trial court in sentencing, such as the presentence investigation report, letters from Bruno’s wife, and expert reports. This Court granted the motion. Bruno filed a second motion to supplement, noting that several of the items previously requested were certified by the clerk of the trial court as missing from the clerk’s file. Bruno asked this Court to order the lower court to locate or reconstruct the missing evidence. This Court granted the motion.

At the relinquishment hearing, trial counsel reminded the trial judge that Dr. Stillman had testified during the penalty phase that Bruno was insane at the time of the crime. Trial counsel recalled that during the penalty phase, he told the court at sidebar that Dr. Stillman’s testimony was contrary to the reports that he had received from Dr. Stillman that indicated that Bruno was not insane. Counsel further recalled that he declined the court’s request to put Dr. Stillman’s reports into evidence because he did not want the jury to see them.

After the relinquishment hearing, the issue concerning Dr. Stillman’s letters was dropped. The letters were later destroyed by Hurricane Andrew. Bruno now claims that appellate counsel should have requested this Court to require the trial court to include Dr. Stillman’s letters in the record.

There is no merit to this claim. As the State points out, Dr. Stillman’s letters were never made a part of the record. Appellate counsel cannot be deemed ineffective on this basis. See Thomas v. Wainwright, 495 So.2d 172, 173 (Fla.1986) (“Appellate counsel cannot be faulted for not ensuring the inclusion in the record of documents not placed in the record by the presiding judge.”).

As his third habeas claim, Bruno alleges that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Bottoson v. Moore, 833 So.2d 693 (Fla.2002); and King v. Moore, 831 So.2d 143 (Fla.2002), this Court rejected this claim.

Accordingly, for the reasons expressed in this opinion, we deny Bruno’s petition for habeas corpus.

It is so ordered.

SHAW, WELLS, LEWIS, and QUINCE, JJ„ and HARDING, Senior Justice, concur.

ANSTEAD, C.J., and PARIENTE, J., concur in result only.

      . Bruno’s petition is timely pursuant to Mann v. Moore, 794 So.2d 595 (Fla.2001).

      . The trial court seemingly merged four ag-gravators into one. On appeal, this Court determined that two of the four merged ag-gravators were not supported by the evidence. Regardless of this fact, in the end, the trial court still only weighed three aggravators.

      . At a sidebar during the penalty phase, defense counsel told the trial court that he had received two letters from Dr. Stillman prior to trial indicating that Bruno was neither insane nor incompetent. Both letters were subsequently destroyed during Hurricane Andrew.

      . After the guilt phase but prior to the penalty phase, Dr. Stillman met with members of Bruno’s family. It was during these interviews that Dr. Stillman came to the conclusion that Bruno was insane. When Dr. Still-man opined that Bruno was insane, defense counsel asked for a sidebar and indicated to the trial judge that Dr. Stillman's testimony took him by surprise because Dr. Stillman was examining Bruno to render an opinion as to possible mental mitigating circumstances, not whether he was sane at the time the crime was committed. Defense counsel told the trial judge that prior to Dr. Stillman’s testimony, he had no reason to believe that Bruno was not competent to stand trial or was insane at the time the offense was committed. Defense counsel explained that Dr. Stillman had sent him two letters prior to trial wherein Dr. Stillman explained that Bruno was neither insane nor incompetent. Defense counsel explained his surprise to the trial judge in order to justify his subsequent motion for an additional psychological examination.

      . After the trial in this case concluded, Dr. Stillman’s reports were allegedly destroyed when trial counsel’s storage facility was hit by Hurricane Andrew.


author: WELLS, J.

text:
    CARIBBEAN CONSERVATION CORPORATION, INC., et al., Petitioners, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, et al., Respondents.
    No. SC01-1885.
    Supreme Court of Florida.
    Jan. 16, 2003.

      David Guest, Earthjustice Legal Defense Fund, Tallahassee, FL, for Petitioners.

      James V. Antista, General Counsel, on behalf of Fish and Wildlife Conservation Commission; and Thomas E. Warner, Solicitor General, T. Kent Wetherell, II, Deputy Solicitor General, and Matthew J. Con-igliaro, Deputy Solicitor General, Office of the Solicitor General, Tallahassee, FL, on behalf of the Attorney General, for Respondents.
    Gary V. Perko, Dan R. Stengle, and Gary P. Sams of Hopping, Green & Sams, P.A., Tallahassee, FL, for Marine Industries Association of Florida, Inc., Amicus Curiae.
   WELLS, J.

We have for review a decision of a district court of appeal that expressly declares state statutes valid. Fla. Fish & Wildlife Conservation Comm’n v. Caribbean Conservation Corp., 789 So.2d 1053 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we approve the decision of the First District Court of

Appeal and hold that the statutes challenged by the petitioners are constitutional, except that portion of section 20.331(6)(c)(l), Florida Statutes (1999), that refers to marine species that are “of special concern.”

The petitioners are not-for-profit groups and individuals who allege that sections 20.331(6)(c); 370.025(4); and 370.12(l)(c)(3), (l)(h), (2)(g)-(i), 2(k)-(o), 2(p)(l), and 2(q), Florida Statutes (1999), unconstitutionally usurp the constitutional authority of the Florida Fish and Wildlife Conservation Commission (FWCC) to regulate marine life. The petitioners contend that the constitutional powers of the FWCC encompass all marine life without exception and that therefore the Legislature cannot lawfully restrict the FWCC’s management or regulatory actions regarding any subclass of marine life. The focal issue arising from the petitioners’ challenge is whether the Legislature can require the FWCC to comply with the requirements of the Administrative Procedure Act (APA), ch. 120, Fla. Stat., when adopting rules or regulations in respect to those species of marine life that are defined as endangered, threatened, or species of special concern. The petitioners contend that the Legislature cannot require the FWCC to comply with the APA in adopting and administering such rules and regulations. The FWCC and the Attorney General (respondents) disagree and argue that the Legislature can require the application of the APA and that the statutes are constitutional.

HISTORICAL BACKGROUND

In 1998, Florida voters amended the Florida Constitution by approving a revision proposed by the Constitutional Revision Commission that created the FWCC and abolished the Florida Game and Fresh Water Fish Commission (Game Commission) and the Marine Fisheries Commission (Marine Commission). The revision, known as revision 5, is presently article TV, section 9, and article XII, section 23 of the Florida Constitution.

Prior to the adoption of the revision 5 constitutional amendments, regulation of Florida’s wild animal life, freshwater aquatic life, and marine life was performed primarily by three separate agencies. These agencies were the Game Commission, the Marine Commission, and the Department of Environmental Protection (DEP).

The Game Commission was a constitutional agency established by a 1942 constitutional amendment. See art. IV, § 30, Fla. Const, of 1885 (1942), amended by art. IV, § 9, Fla. Const. (1968). This constitutional provision authorized the Game Commission to carry out “the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” Art. IV, § 9, Fla. Const. (1968).

The DEP was, and remains, a statutorily created agency which was established in 1993 by the merger of the then-existing Department of Environmental Regulation and Department of Natural Resources. With its creation, the DEP was given the statutory authority previously held by the Department of Natural Resources regarding “endangered and threatened” marine species. See ch. 93-213, § 3, Laws of Fla.; §§ 370.02(2), 370.12, 372.072(4)(a)(2), Fla. Stat. (Supp.1994).

The Marine Commission was created by statute in 1983. See ch. 83-134, § 1, Laws of Fla.; § 370.026, Fla. Stat. (1983). The Marine Commission was given jurisdiction over marine life with the express exception of “endangered species.” § 370.027, Fla. Stat. (1983). The statute also expressly stated that “[A]ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department.” § 370.027(1), Fla. Stat. (1983).

In 1990, the Court decided State v. Davis, 556 So.2d 1104 (Fla.1990), which concerned rules promulgated by the Marine Commission pertaining to gear specifications. We noted: “The gravamen of Davis’ initial argument is that the [Marine] Commission’s rule constitutes an invalid exercise of delegated legislative authority because section 370.027 prohibits any action by the Commission pertaining to endangered species.” Davis, 556 So.2d at 1105. We rejected Davis’s argument:

We find that a plain reading of section 370.027 does not preclude the Commission from establishing rules that might impact upon endangered species. Rather, the plain import of the reference to “endangered species” is to modify the Commission’s otherwise “full” and “exclusive” rulemaking authority relating to all marine life. The statute does not say that the Commission cannot act at all with reference to endangered species; it says that the Commission is not the only agency permitted to act with reference to endangered species. Moreover, a TED is a shrimping gear specification. Clearly the Commission has the authority to regulate gear specifications. Thus, we are persuaded that the Commission’s rulemaking power is circumscribed only by the requirement in the statute that the Commission act reasonably pursuant to the policy and standards in section 370.025.
... Accordingly, the Commission has the power under sections 370.027 and 370.025 to protect and recover marine resources through fishing gear regulations just as it has the power to do so through season closures, bag limits, or fishery management plans.

Davis, 556 So.2d at 1106-07.

In January of 1998, this Court decided Advisory Opinion to the Attorney General re Fish & Wildlife Conservation Commission, 705 So.2d 1351 (Fla.1998) (hereinafter Advisory Opinion re FWCC), in which we assessed the validity of a citizens’ initiative entitled “Fish and Wildlife Conservation Commission: Unifies Marine Fisheries and Fresh Water Fish Commissions.” In pertinent part, the initiative provided:

(c) The Commission shall exercise the regulatory and executive powers of the state with respect to wild animal life, freshwater aquatic life, and marine aquatic life, except that all license fees for taking wild animal life, freshwater aquatic life and marine aquatic life, and penalties for violating regulations of the Commission shall be prescribed by specific statute. The Commission shall not be a sub-unit of any other state agency and shall have its own staff which includes management, research, enforcement and public information functions. The Legislature may enact laws in aid of the Commission, not inconsistent with this section. The Commission’s exercise of executive powers in the area of planning, budgeting, personnel management and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the Commission by the Legislature for the purpose of management, protection and conservation of wild animal life, freshwater aquatic life and marine aquatic life.

Id. at 1353 (quoting petition). We determined that the ballot summary was inaccurate and struck the initiative from the ballot. In our opinion, we wrote:

The summary does not explain to the reader that the power to regulate marine life lies solely with the legislature, which has delegated that power to not only the Marine Fisheries Commission but also the Department of Environmental Protection and the Department of Agriculture.[n.] Though the summary states that the purpose of the amendment is to “unify” the Marine Fisheries Commission with the Game and Fresh Water Fish Commission, those two entities do not share the same status. Despite the common label “commission,” the former is a legislative creation while the latter enjoys independent constitutional stature. Thus the proposed amendment does not unify the two so much as it strips the legislature of its exclusive power to regulate marine life and grants it to a constitutional entity. The summary does not sufficiently inform the public of this transfer of power.
[n.] Thus, if the amendment were passed, the legislature’s determination that the Department of Environmental Protection should regulate endangered marine species would no longer be effective. § 370.027; § 372.072(4)(a) 2, Fla. Stat. (1995).

Advisory Opinion re FWCC, 705 So.2d at 1355.

After our opinion was issued, the Constitutional Revision Commission, in its review of the constitution pursuant to article XI, section 2, proposed revision 5, which was placed on the ballot for the November 1998 election. Revision 5, as it appeared on the ballot, stated:

NO. 5
CONSTITUTIONAL REVISION ARTICLE II, SECTION 7(a);
ARTICLE IV, SECTION 9; ARTICLE VII, SECTION ll(a)-(f);
ARTICLE X, SECTION 18; ARTICLE XII, SECTION 22
(Constitutional Revision Commission)
Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission
Requires adequate provision for conservation of natural resources; creates Fish and Wildlife Conservation Commission, granting it the regulatory and executive powers of the Game and Fresh Water Fish Commission and the Marine Fisheries Commission; removes legislature’s exclusive authority to regulate marine life and grants certain powers to new commission; authorizes bonds to continue financing acquisition and improvement of lands for conservation, outdoor recreation, and related purposes; restricts disposition of state lands designated for conservation purposes.

(Emphasis added.) Revision 5 was adopted by the voters. This revision became article IV, section 9, and article XII, section 23 of the Florida Constitution. Article IV, section 9, provides:

Fish and wildlife conservation commission. — There shall be a fish and wildlife conservation commission, composed of seven members appointed by the governor, subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory authority and executive powers of the state with respect to wild animal life and fresh water aquatic life, and shall also exercise regulatory and executive powers of the state with respect to marine life, except that all license fees for taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law. The commission shall establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions. The legislature may enact laws in aid of the commission, not inconsistent with this section, except that there shall be no special law or general law of local application pertaining to hunting or fishing. The commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from license fees for the taking of wild animal life and fresh water aquatic life shall be appropriated to the commission by the legislature for the purposes of management, protection, and conservation of wild animal life and fresh water aquatic life. Revenue derived from license fees relating to marine life shall be appropriated by the legislature for the purposes of management, protection, and conservation of marine life as provided by law. The commission shall not be a unit of any other state agency and shall have its own staff, which includes management, research, and enforcement. Unless provided by general law, the commission shall have no authority to regulate matters relating to air and water pollution.

(Emphasis added.) Article XII, section 23(b), provides:

(b) The jurisdiction of the marine fisheries commission as set forth in statutes in effect on March 1, 1998, shall be transferred to the fish and wildlife conservation commission. The jurisdiction of the marine fisheries commission transferred to the commission shall not be expanded except as provided by general law. All rules of the marine fisheries commission and game and fresh water fish commission in effect on the effective date of this amendment shall become rules of the fish and wildlife conservation commission until superseded or amended by the commission.

Following the voters’ approval of revision 5, the Legislature enacted chapter 99-245, Laws of Florida. Chapter 99-245 established or amended the statutes which are challenged in the present action. The first challenged statute, section 20.331(6)(c), Florida Statutes (1999), provides in pertinent part:

(c) The provisions of chapter 120 shall be accorded to any party whose substantial interests will be affected by any action of the commission in the performance of its statutory duties or responsibilities. For purposes of this subsection, statutory duties or responsibilities include, but are not limited to, the following:
1. Research and management responsibilities for marine species listed as endangered, threatened, or of special concern, including, but not limited to, manatees and marine turtles.

The second challenged statute, section 370.025(4), Florida Statutes (1999), provides in pertinent part: “[FWCC] has full constitutional rulemaking authority over marine life, and listed species as defined in s. 372.072(3), except for ... [e]ndangered or threatened marine species for which rulemaking shall be done pursuant to chapter 120.” The other challenged statutes, sections 370.12(l)(c)(3), (l)(h), (2)(g)-(i), 2(k)-(o), 2(p)(l), and 2(q), Florida Statutes (1999), require the FWCC to comply with the APA when adopting rules pertaining to marine turtles and manatees.

THE PRESENT CASE

The petitioners initiated the present case in the circuit court as an action for declaratory and injunctive relief. The circuit court determined that the issue presented was an issue of law and entered a “Final Summary Declaratory Judgment” in favor of the petitioners. The circuit court ruled:

The [petitioners] contend that portions of Chapter 95-245, Laws of Florida, are violative of Article IV, Section 9, and Article XII, Section 23, of the Florida Constitution. Specifically, [petitioners] argue that these constitutional provisions give the commission constitutional rule making authority concerning all marine life, including endangered and threatened species, and that the legislature thus cannot, as per Chapter 95-245, Laws of Florida, require the commission to comply with Chapter 120, Florida Statutes, in so doing. With some qualifications and clarification as to exactly what is the authority of the commission relative to endangered or threatened species, I agree that the commission’s exercise of its authority cannot be made subject to Chapter 120, Florida Statutes.
It appears, considering these and other matters of accord, that the [petitioners] and [respondents] do not really disagree on what was intended by the language used in the revision. Both agree that the nature of the newly created commission, in terms of its rule making power and authority, is modeled on the previous Game and Fresh Water Commission, which was not subject to Chapter 120 requirements. They also agree that the commission’s jurisdiction and authority over marine life was to be whatever the jurisdiction and authority of the marine fisheries commission was over marine life as to March 1, 1998. The difference of opinions is to what, exactly, that authority and jurisdiction was.
The commission takes the position that since the Marine Fisheries Commission did not have regulatory or management authority over endangered or threatened marine species, such authority being delegated instead to the Department of Environmental Protection, that it does not now, after the revision, have such authority. Indeed, the language of Section 370.027, Florida Statutes, in effect on March 1, 1998, provided that the Marine Fisheries Commission had rule making authority over marine life “with the exception of endangered species.”
This statutory language, however, is subject to interpretation, and was, in fact, interpreted in the case of State v. Davis, 556 So.2d 1104 (Fla.1990). Davis involved a challenge to an emergency rule passed by the Marine Fisheries Commission which prohibited possession of a trawler rigged for fishing which did not have a qualified turtle excluder device (TED) installed in it. The trial court found that the commission had exceeded its authority because Section 370.027, Florida Statutes, specifically prohibited the commission from taking action pertaining to endangered species, and since sea turtles were considered to be endangered, the rule was invalid. The Supreme Court disagreed.
We find that a plain reading of section 370.027 does not preclude the Commission from establishing rules that might impact upon endangered species. Rather, the plain import of the reference to “endangered species” is to modify the Commission’s otherwise “full” and “exclusive” rulemaking authority relating to all marine life. The statute does not say that the Commission cannot act at all with reference to endangered species; it says that the Commission is not the only agency permitted to act with reference to endangered species. Moreover, a TED is a shrimping gear specification. Clearly the Commission has the authority to regulate gear specifications. Thus, we are persuaded that the Commission’s rule making power is circumscribed only by the requirement in the statute that the Commission act reasonably pursuant to the policy and standards in section 370.025.

556 So.2d at 1106.

The Davis case makes it clear that as of March 1, 1998, the Marine Fisheries Commission had the authority “to act with reference to endangered species,” and that it was not precluded from “establishing rules that might impact upon endangered species.” This authority, the Court said, was not exhaustive, but was shared with other state agencies.

Carribean Conservation Corp. v. Fish & Wildlife Conservation Comm’n, No. 99-4188 at 2, 5-7 (Fla.2d Cir. Ct. order filed March 9, 2000) (footnote omitted).

The circuit court then held that the FWCC acts not as an administrative agency but as a constitutional commission with “constitutional authority to promulgate rules that impact upon endangered or threatened species and to otherwise act with reference to endangered or threatened species,” and that chapter 99-245 is unconstitutional to the extent that it seeks to require the FWCC to follow the APA in the exercise of its constitutional powers. Id. at 7.

The FWCC appealed to the First District Court of Appeal. The district court reversed the circuit court and stated:

Whether a state statute is constitutional is a pure issue of law, subject to de novo review. In our review of this case we have considered the functions and authority granted to the [Game Commission], [Marine Commission], and DEP, prior to the creation of the FWCC.
The trial court correctly determined that interpretation of Revision 5 is required to discern exactly what authority was transferred to the FWCC. However we disagree with the trial court’s conclusion that the [Marine Commission] had (and the FWCC now has) constitutional authority to establish rules regarding endangered species.
The trial court primarily relied on the Florida Supreme Court’s opinion in State v. Davis to decide what authority was vested in the [Marine Commission] and transferred to the FWCC by Revision 5. The trial court applied Davis too broadly. A careful review of Davis shows it does not hold that the MFC had general concurrent authority with other agencies to regulate endangered species. Instead, that case holds the MFC had only incidental regulatory authority to establish rules that might impact upon endangered marine species (such as those pertaining to gear specifications), and that incidental authority did not usurp or affect the statutory authority specifically assigned to other agencies.

Florida Fish & Wildlife Conservation Comm’n v. Caribbean Conservation Corp., 789 So.2d 1053, 1054-55 (Fla. 1st DCA 2001) (citations and footnote omitted). We approve the decision of the district court.

The question presented concerning whether the challenged statutes are constitutional is a question of law which we review de novo. See City of Miami v. McGrath, 824 So.2d 143 (Fla.2002). To determine whether the challenged statutory sections are constitutional, this Court must first determine whether the Florida Constitution provides the FWCC with constitutional regulatory authority over all marine life. If that answer is no, this Court must decide whether the applicability of the challenged statutes is limited to marine life that was constitutionally excepted from FWCC’s regulatory authority.

We agree with the petitioners that “[a]ny inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s explicit language.” Florida Society of Ophthalmology v. Florida Optometric Assn., 489 So.2d 1118, 1119 (Fla.1986). Likewise, this Court endeavors to construe a constitutional provision consistent with the intent of the framers and the voters. In Gray v. Bryant, 125 So.2d 846, 852 (Fla.1960), this Court stated:

The fundamental object to be sought in construing a constitutional provision is to ascertain the intent of the framers and the provision must be construed or interpreted in such manner as to fulfill the intent of the people, never to defeat it. Such a provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied.

(Emphasis added.) Moreover, in construing multiple constitutional provisions addressing a similar subject, the provisions “must be read in pari materia to ensure a consistent and logical meaning that gives effect to each provision.” Advisory Opinion to the Governor — 1996 Amendment 5 (Everglades), 706 So.2d 278, 281 (Fla. 1997).

The petitioners argue that the plain language of article IV, section 9, grants the FWCC constitutional authority over all marine life. Again, in pertinent part, article IV, section 9, as amended by revision 5, states:

[FWCC] shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and shall also exercise regulatory and executive powers of the state with respect to marine life, except that all license fees for taking ... marine life ... shall be prescribed by general law.

(Emphasis added.) The respondents point out that the use of the word “the” establishes a difference between the powers given to the FWCC regarding “wild animal life and fresh water aquatic life” and the powers given regarding marine life. In respect to “wild animal life and fresh water aquatic life,” the FWCC is given “the regulatory and executive powers of the state.” Id. (emphasis added). There is no “the” preceding “and shall also exercise regulatory and executive powers of the state with respect to marine life.” We agree with the respondents that this disparate language and the manner in which marine life is dealt with separately from “wild animal life and fresh water aquatic life” require us to look further than simply at the plain language of article IV, section 9, to determine the intent of this section.

Furthermore, as the respondents note, we must also construe article XII, section 23, with article IV, section 9. We construe multiple constitutional provisions addressing similar subjects “in pari materia to ensure a consistent and logical meaning that gives effect to each provision.” Advisory Opinion to the Governor — 1996 Amendment 5 (Everglades), 706 So.2d at 281. The pertinent part of article XII, section 23, for this construction states:

(b) The jurisdiction of the marine fisheries commission as set forth in statutes in effect on March 1, 1998, shall be transferred to the fish and wildlife conservation commission. The jurisdiction of the marine fisheries commission transferred to the commission shall not be expanded except as provided by general law.

When the two constitutional sections are read together, we conclude that the provisions gave to the FWCC regulatory and executive powers with respect to marine life, including the regulatory and executive powers of the Marine Commission in effect on March 1,1998.

However, whether this gave to the FWCC regulatory and executive powers over all marine life depends on whether regulatory and executive powers over some marine life remained with other agencies after the voters approved the revision 5 amendments. We find that such power did remain with the DEP regarding endangered and threatened species of marine life.

We reach this conclusion from the history of regulatory and executive powers regarding marine life, including the statutes which were the basis for regulating endangered and threatened marine life at the time the voters approved revision 5. As was previously outlined, it is clear that the DEP regulated endangered and threatened marine life when revision 5 was approved. Our decision in Advisory Opinion re FWCC recognized this conclusion in finding fault with the citizens’ initiative ballot summary:

The summary does not explain to the reader that the power to regulate marine life lies solely with the legislature, which has delegated that power to not only the Marine Fisheries Commission but also the Department of Environmental Protection and the Department of Agriculture.

Advisory Opinion re FWCC, 705 So.2d at 1355 (emphasis added).

Significantly, in footnote 3 of that opinion, we referenced sections 370.027 and 372.072(4), Florida Statutes (1997). See id. at 1355 n. 3. These sections, which were in effect upon the adoption of revision 5, provided that the DEP had the responsibility for endangered and threatened marine species as defined in section 372.072(3). The DEP also regulated those species protected by section 370.12. Because the regulation of marine life identified in those statutes was allocated to the DEP and not to the Marine Commission, revision 5’s constitutional transfer of the Marine Commission’s authority did not include the regulation of marine life identified in those sections.

Our conclusion is consistent with what was presented to the voters in the revision 5 ballot summary, which states that revision 5 “removes legislature’s exclusive authority to regulate marine life and grants certain powers to new commission.” This statement is reasonably read to mean that the Legislature had exclusive power to regulate marine life, but some, not all, of that exclusive power was being constitutionally transferred to the FWCC. This correlates with the constitutional language in article IV, section 9, and article XII, section 23, that what the FWCC is to have with respect to marine life is some regulatory powers, not “the” regulatory power of the state, and that the power which the FWCC is to have is the power which the Marine Commission had on March 1, 1998. The power in respect to marine life which the Marine Commission had on that date did not include the power which had been given to the DEP.

This conclusion is bolstered by the Constitutional Revision Commission’s discussion of revision 5 immediately before revision 5 was approved for placement on the ballot. Commissioner Henderson began by stating:

The agreement which we worked out and has previously been adopted by this commission was that the regulatory authority which was being transferred was narrow in scope to the Marine Fisheries Commission, as it exists March 1st of 1998. That is what is being transferred. We have set up the mechanism for other regulatory authority to be transferred to the commission by subsequent legislative acts. The only transfer by operation of constitutional law, if this were to pass, would be the transfer of the Marine Fisheries Commission.

Fla. Const. Revision Comm’n, transcript of meeting at 88 (March 17, 1998) (available at Fla. Dep’t of State, Div. of Archives, Tallahassee, Fla.) (hereinafter Commission Transcript) (emphasis added).

Commissioner Thompson proposed to amend article IV, section 9, to state that the FWCC shall exercise the regulatory authority and executive powers of the state with respect to wild animal “life and freshwater aquatic life, and shall also exercise regulatory authority and executive powers of the state with respect to marine life.” Commission Transcript at 36. Commissioner Henderson described the amendment as follows:

So the amendment which Commissioner Thompson offers really deals with this very narrow issue of whether or not there is any regulatory authority which will currently still remain at DEP. And the answer to that is, yes, we did not move, for instance, manatees or turtles with this, with this amendment. We have only moved the Marine Fisheries Commission.

Commission Transcript at 38 (emphasis added). Commissioner Thompson explained the amendment in this manner:

So my amendment makes clear, and shall also exercise regulatory and executive powers of the state with respect to marine life as the Legislature sees fit. And that’s all that there is to it. It is a very simple provision that just allows the Legislature to make the decision as to whether to expand that jurisdiction.

Commission Transcript at 51. The Constitutional Revision Commission adopted the amendment.

Commissioner Henderson offered some final comments:

In support of the package as now amended, I want to make very clear that what we are doing is a narrow transfer of the Marine Fisheries Commission to a new Fish and Wildlife Conservation Commission. By the Thompson amendment, we recognize that there are still some matters that still remain within the regulatory authority of DEP; namely at this time, manatees and sea turtles. There may be some other things.
The amendment contemplates that future Legislatures will be able to transfer additional authority to the new commission.

See Commission Transcript at 53-54 (emphasis added).

Finally, we agree with the First District that our decision in Davis, 556 So.2d at 1106, is not in conflict with upholding the constitutionality of the statutes presently under review. In Davis, we considered “gear specifications” which were within the jurisdiction of the Marine Commission. We simply recognized that there would be an impact upon an endangered species because of the “gear specification,” but that impact did not prevent the Marine Commission from regulating in a matter in which it had jurisdiction. See id.

Therefore, we hold that sections 20.331(6)(c); 370.025(4); and 370.12(l)(c)(3), (l)(h), (2)(g)-(i), 2(k)-(o), 2(p)(l), and 2(q), Florida Statutes (1999), are constitutional, with the exception of that portion of section 20.331(6)(c)(l) which refers to marine species that are “of special concern.” We can discern no statutory basis in effect on March 1, 1998, for the DEP having regulatory or executive power in respect to a category of marine species designated “of special concern.”

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS, and QUINCE, JJ„ and SHAW and HARDING, Senior Justices, concur.

      . This Court previously granted petitioner Carribean Conservation Corporation’s motion to withdraw as a party from this case but noted that the style of the case would remain the same for appellate purposes. Remaining petitioners are Save the Manatee Club, Inc., the Florida Wildlife Federation, Daniel R. Evans (Education Coordinator for Caribbean Conservation Corporation, Inc.), Patrick M. Rose (Director of Government Relations for Save the Manatee Club, Inc.), and Manley K. Fuller III (President of the Florida Wildlife Federation).

      . Other.agencies had and still have roles in this regulation, although those roles are not contended to have any relevance to the present case.

      . Section 370.027, entitled "Rulemaking authority with respect to marine life," provided:
      (1) Pursuant to the policy and standards in s. 370.025, the Marine Fisheries Commission is delegated full rulemaking authority over marine life, with the exception of endangered species, subject to final approval by the Governor and Cabinet sitting as the head of the Department of Natural Resources, in the areas of concern herein specified. The commission is instructed to make recommendations annually to the Governor and Cabinet regarding the marine fisheries research priorities and funding of the department. All administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department. The authority to regulate fishing gear in residential, manmade saltwater canals is specifically not delegated to the commission and is retained by the Legislature.
      (2) Exclusive rulemaking authority in the following areas relating to marine life, with the exception of endangered species, is vested in the commission; any conflicting authority of any division or bureau of the department or any other agency of state government is withdrawn as of the effective date of the rule proposed by the commission and approved by the Governor and Cabinet, and the inconsistent rule, or the inconsistent part thereof, is superseded to the extent of the inconsistency:
      (a) Gear specifications;
      (b) Prohibited gear;
      (c) Bag limits;
      (d) Size limits;
      (e) Species that may not be sold;
      (f) Protected species;
      (g) Closed areas;
      (h) Quality control codes;
      (i) Seasons; and
      (j) Special considerations relating to egg-bearing females and oyster and clam relaying.
      (3)(a) The commission, pursuant to this act, shall adopt rules pursuant to chapter 120. When rules are ready for final adoption, the proposed rules shall be submitted to the executive director of the department for submission on the regular agenda of the department for final action by the Governor and Cabinet as head of the department. In considering a proposed rule recommended by the commission, the Governor and Cabinet may only approve or disapprove the proposed rule. If the rule is disapproved, it shall be withdrawn. The commission shall file a rule for adoption with the Department of State only after the rule is approved by the Governor and Cabinet. The department staff has no authority to change any proposed rule or recommendation submitted by the commission. (b) The executive director of the department shall appoint a management-level staff member to coordinate with the director of the commission the submission by the commission of proposed rules for final approval by the Governor and Cabinet.

      . See also Amos v. Mathews, 99 Fla. 1, 126 So. 308, 316 (1930) ("The object of constitutional construction is to ascertain and effectuate the intention and purpose of the people in adopting it. That intention and purpose is the 'spirit' of the Constitution — as obligatory as its written word.”).

      . For the purpose of resolving any future issues, as well as for clarity, we hold that at the time revision 5 was passed, "endangered or threatened species” included all marine turtles.


author: QUINCE, J.

text:
    Antonio GETHERS, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2639.
    Supreme Court of Florida.
    Jan. 16, 2003.

      Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant Public Defender, Chief, Appellate Division, and Michael Antinori, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Charlie J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   QUINCE, J.

We have for review the opinion in Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001), which certified conflict with the opinions in Bryant v. State, 787 So.2d 68 (Fla. 2d DCA 2001), and Penny v. State, 778 So.2d 305 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we approve the Fourth District’s decision and hold that absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.

Facts

Antonio Gethers (Gethers) was arrested on June 4, 1999, in Broward County on charges of driving under a suspended license. On June 22, 1999, he failed to appear in St. Lucie County on charges of attempted burglary of a structure and possession of burglary tools. He failed to appear because he was still in the Broward County Jail on the driving charges. The St. Lucie County trial judge issued a bench warrant for Gethers’ failure to appear. On August 24,1999, St. Lucie County sent a teletype notification to Broward County directing officials to “place a hold” on Gethers because of the outstanding bench warrant. The next day, Broward County responded that Gethers was subject to an “out of [county] hold-[felony]” for the warrant in St. Lucie County.

On November 15, 1999, Gethers was sentenced in Broward County to a year and one day on the driving charges. At a later unspecified date, he was transferred to Charlotte County to answer to unrelated charges there.

On May 26, 2000, Gethers was transported from Charlotte County to St. Lucie County on the charge for burglary of a structure. Gethers’ attorney and the State prosecutor attempted to negotiate a plea, but the parties could not agree on how to apply the sentencing guidelines and the extent of credit Gethers would be given for time served. Gethers entered a plea of no contest, and requested the Court sentence him to a below guidelines sentence of not more than eighteen months with 343 days of jail credit, which included time served on the Broward County charges, so that his St. Lucie County sentence would end at the same time as his Charlotte County sentence. The trial court found that the June 22, 1999, bench warrant had never been executed and that the August 24, 1999, teletype to Broward County amounted only to a detainer. Gethers moved to withdraw his plea. The trial court denied Gethers’ motion and sentenced him to thirty-six months in the Department of Corrections to run concurrently “with any previous prison sentence imposed in other counties” and gave Geth-ers credit for seventy-five days time served, the time Gethers actually spent in the St. Lucie County Jail. Gethers then filed a motion to correct the sentence, which the trial court denied as well.

Gethers appealed to the Fourth District Court of Appeal, arguing that he should have received 343 days jail credit from June 22, 1999, when the bench warrant was issued in St. Lucie County. The Fourth District held that Gethers was not entitled to 343 days of jail credit, that the June 22 warrant was never executed, and that Gethers was held only under a detain-er. The Fourth District awarded Gethers seventy-five days jail time credit for the days spent in the St. Lucie County Jail awaiting resolution of the St. Lucie County charges. Gethers, 798 So.2d at 832-33. We agree with the Fourth District.

Discussion

The seminal case on the issue of credit for time served is Daniels v. State, 491 So.2d 543 (Fla.1986). In Daniels, we found that “when, pursuant to section 921.161(1), a defendant receives pre-sen-tence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.” Id. at 545. However, the facts of Daniels are not analogous to the situation presented in this case. While on probation for trespassing, the defendant in Daniels was arrested on charges of kidnapping, burglary, and attempted sexual battery. Several days later, a warrant was issued and served based on the violation of his probation. Although he was sentenced on all four offenses with the sentences to run concurrently, he was only given credit for time served on the trespass sentence. We agreed with the district court’s holding that the trial court erred in failing to credit all time served to each of Daniels’ concurrent sentences.

Because the violation of probation warrant was executed in Daniels, Daniels’ incarceration was attributable to both the three felony charges for which he was originally arrested and the charge pursuant to the warrant. Unlike Daniels, the trial court in this case specifically found that the St. Lucie County warrant dated June 22, 1999, was not executed and that the teletype message sent from St. Lucie County to Broward County was a detainer. While Daniels indicates that a defendant is entitled to receive jail credit on an offense for which a warrant has been duly executed, Daniels does not address the situation where a detainer is lodged against the defendant.

The difference between an executed warrant and a detainer is significant in these situations. A warrant is a “writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search, or a seizure.” Black’s Law Dictionary 1579 (7th ed.1999). An arrest warrant must be signed by a magistrate and conform to specific content requirements. See Fla. R.Crim. P. 3.121; see also Robbins v. State, 370 So.2d 420 (Fla. 1st DCA 1979) (holding that a document designated an “Out of Town Arrest and Booking Report” could not be considered an arrest warrant because it did not meet the requirements of the rule). A detainer, on the other hand, “is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985); see also Bogue v. Fennelly, 705 So.2d 575 (Fla. 4th DCA 1997). A detain-er may be lodged by a prosecutor or law enforcement officer and can last indefinitely. See United, States v. Mauro, 436 U.S. 340, 358, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). Detainers informally put officials on notice that the defendant is wanted in another jurisdiction; however, “[f]urther action must be taken by the receiving [jurisdiction] in order to obtain the prisoner.” Price v. State, 598 So.2d 215, 217 (Fla. 5th DCA 1992) (quoting Mauro, 436 U.S. at 358, 98 S.Ct. 1834). An arrest warrant is a formal, definitive, and mandatory document, whereas the detainer is the transmission of information and a request to hold a person or notify the requesting authority of the prisoner’s imminent release. Therefore, when a defendant is serving time in jail on one charge and a separate jurisdiction issues a detainer for another charge, there is no formal, defini-five mandate to hold the defendant in relation to the detainer. Generally, under such circumstances, a prisoner is not in custody pursuant to the detainer. Only if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer.

The First District Court of Appeal in Penny v. State, 778 So.2d 305 (Fla. 1st DCA 2000), and the Second District Court of Appeal in Bryant v. State, 787 So.2d 68 (Fla. 2d DCA 2001), have extended Daniels and allowed a defendant credit for time served in a different county on different charges if a detainer has been issued. Both Penny and Bryant rely on Travis v. State, 724 So.2d 119 (Fla. 1st DCA 1998), for their conclusions. In Travis, a warrant was transmitted from Escambia County to Santa Rosa County. When the Santa Rosa Sheriffs Office attempted to serve Travis with the warrant, Travis resisted and was charged with battery of a law enforcement officer and resisting arrest with violence. Travis was in the Santa Rosa County Jail for 101 days before being sentenced on the Santa Rosa County charges. On the day he was released from the Santa Rosa County Jail, he was formally arrested on the Escambia County warrant. His Escambia County sentence was ordered to run concurrently with the Santa Rosa County sentence. However, the trial court did not award credit for the 101 days spent in the Santa Rosa County Jail. The First District held that Travis was entitled to credit for the 101 days he spent in the Santa Rosa County Jail because the Escambia County arrest warrant had been transmitted. The First District held:

[F]rom the time a warrant is transmitted or issued to another county and that county incarcerates the defendant on unrelated charges, the defendant, as in Pearson v. State, 538 So.2d 1349 (Fla. 1st DCA 1989), is deemed to be in custody on the warrants from both counties and therefore entitled to jail credit on concurrent sentencing.

Travis, 724 So.2d at 120. Unlike the situation in this case where St. Lucie County issued a detainer, a warrant was transmitted in Travis. Both the First District in Penny and the Second District in Bryant have erroneously equated the transmission of the warrant, as in Travis, with the issuance of a detainer. The filing of a detainer or a hold does not have the same effect as an arrest.

We agree with the Fourth District in this case that the filing of a detain-er or a hold does not have the same effect as executing or transmitting an arrest warrant. When a county issues a detainer or hold to another county, it is merely requesting either to hold the defendant for the second county or to notify the second county when release is imminent so that the second county can act. In that ease, no jail credit need be awarded by the second county for time served in the first county for the period during which the detainer or hold is lodged.

The decision of the Fourth District Court of Appeal is approved.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, and CANTERO, JJ., and SHAW, Senior Justice, concur.


author: SHAW, Senior Justice.

text:
    Karen F. RYKIEL, Petitioner, v. Stephen A. RYKIEL, Respondent.
    No. SC01-586.
    Supreme Court of Florida.
    Jan. 16, 2003.

      Melvyn B. Frumkes and Corie M. Gold-blum of Melvyn B. Frumkes & Associates, P.A., Miami, FL; and Cynthia L. Greene, Miami, FL, for Petitioner.
    Marcia K Lippincott, Lake Mary, FL, for Respondent.
   SHAW, Senior Justice.

We have for review Rykiel v. Rykiel, 795 So.2d 90 (Fla. 5th DCA 2000), which expressly and directly conflicts with Almodovar v. Almodovar, 754 So.2d 861 (Fla. 3d DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We quash Rykiel, as explained herein.

I. FACTS

Stephen Rykiel (“husband”) appealed the final judgment in a divorce proceeding. The Fifth District Court of Appeal (the “Fifth District”) reversed, holding as follows:

Further, [an obvious error was] made with regard to the alimony award. First, the court ordered that the award of permanent periodic alimony be nontaxable to the receiving party, the former wife. This award cannot stand because there is no legal authority which would permit such a practice. Permanent periodic alimony (i.e., support money) is taxable to the recipient under federal income tax law. 26 U.S.C.A. § 71. Its taxability cannot be changed by a state court order. State law creates legal interest3, but federal law determines how those interests shall be taxed.

Rykiel, 795 So.2d at 92.

On rehearing, the district court appended to the above passage the following language:

We reject appellee’s argument, on rehearing, that the Deficit Reduction Act of 1984, which substantially amended 26 U.S.C. § 71, permits a state trial judge to order that support and maintenance will be nontaxable to the recipient, or that temporary Treasury Regulation, 26 C.F.R. § 1.71-1T supports this argument. Section 71 was rewritten to clarify when a continuing stream of payments were to be characterized as maintenance, and thereby taxable, or a property distribution, which is nontaxable. In fact, 26 C.F.R. § 1.71-1T, A-8, specifically provides that “the spouses may designate ” that separate maintenance payments are nondeductible by the payor and excludible from the gross income of the payee. The term designate means “to make known directly.” Richardson v. Commissioner of Internal Revenue, 125 F.3d 551, 556 (7th Cir.1997). A reading of 26 U.S.C. § 71 and 26 C.F.R. § 1.71-1T, as a whole, convinces us that only the parties may agree to this in a written document, or on the record before the trial judge, which would be reduced to judgment. The dicta cited by appellee in Almodovar v. Almodovar, 754 So.2d 861 (Fla. 3d DCA 2000), is based upon 26 C.F.R. § 1.71-1T.

Rykiel, 795 So.2d at 93 n. 1.

Karen Rykiel (“wife”) sought review before this Court, claiming conflict with the following language of the Third District Court of Appeal (the “Third District”) in Almodovar:

We next turn to the court’s pronouncement that the former husband “shall be responsible for payment of taxes on alimony payments but shall be entitled to applicable deductions.” The court erred in so ruling. The usual treatment of alimony is to make the alimony taxable to the recipient and deductible by the payer. See generally Rihl v. Rihl, 727 So.2d 272 (Fla. 3d DCA 1999); Garcia v. Garcia, 696 So.2d 1279 (Fla. 2d DCA 1997). If the trial court wanted to avoid burdening the former wife with the tax consequences of the alimony payments the court has the discretion to provide that “the payor [former husband] will not deduct the alimony payments so that the payee [former wife] may then exclude the payments from gross income.” Brenda M. Abrams, Family Law § 38.23(2)(d) (1999), citing Temp. Treas. Reg. § 1.71-lT(b), Q & A 8.

Almodovar, 754 So.2d at 862.

The issue presented in these conflicting decisions is a pure question of law, subject to de novo review.

II. THE APPLICABLE LAW

This case is governed by the provisions of the Internal Revenue Code and the Code of Federal Regulations governing the Internal Revenue Service, Department of the Treasury. Section 63, Internal Revenue Code (2001), provides’ as follows in relevant part:

§ 63. Taxable income defined (a) In general
Except as provided in subsection (b), for purposes of this subtitle, the term “taxable income” means gross income

I.R.C. § 63 (2000) (emphasis added).

Section 71, Internal Revenue Code (2001), provides as follows in relevant part:

§ 71. Alimony and separate maintenance payments
(a) General rule
Gross income includes amounts received as alimony or separate maintenance payments.
(b) Alimony or separate maintenance payments defined
For purposes of this section—
(1) In general
The term “alimony or separate maintenance payment” means any payment in cash if—
(A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction ...
(C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and
(D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.
(2) Divorce or separation instrument
The term, “divorce or separation instrument” means—
(A) a decree of divorce or separate maintenance or a written instrument incident to such a decree,
(B) a written separation agreement, or
(C) a decree (not described in subpar-agraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.
(c) Payments to support children
(1) In general
Subsection (a) shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.

I.R.C. § 71 (2000) (emphasis added).

The “question and answer” section in Temporary Treasury Regulation § 1.71— lT(b), Q8 & A8 (2001), addresses this matter further:

Q. How may spouses designate that payments otherwise qualifying as alimony or separate maintenance payments shall be excludible from the gross income of the payee and non-deductible by the payor?
A. The spouses may designate that payments otherwise qualifying as alimony or separate maintenance payments shall be nondeductible by the payor and excludible from gross income by the payee by so providing in a divorce or separation instrument....

Temp. Treas. Reg. § 1.71-1T, Q8 & A8 (2001).

III. THE PRESENT CASE

The Fifth District in the present case construed the above Code provisions and Treasury regulation to mean that a divorce court does not have the authority to order that “alimony [shall] be nontaxable to the receiving party.” This construction, however, is inconsistent with the above Code provisions and Treasury regulation. Sections 63 and 71 of the Code may be paraphrased as follows:

—Gross income is taxable.
—Gross income includes alimony.
—Alimony includes monetary payments made to a spouse pursuant to a divorce instrument unless that instrument says that the payments are not includible in gross income and not allowable as a deduction.
—If the divorce instrument says that the payments are not includible in gross income and not allowable as a deduction, then the payments are not “alimony,” are not included in gross income, and are not taxable.
—A divorce instrument includes a divorce decree.

Under the above provisions, a divorce decree may provide that alimony payments are to be excluded from the gross income of the payee and not deducted by the payor. In such a case, the payments do not constitute “alimony” for tax purposes, are not included in the gross income of the recipient, and are nontaxable to the recipient. Treasury regulation 1.71-1T, which the Fifth District relied on for the proposition that only the parties can agree to such an arrangement, simply states that the parties can agree to such an arrangement; it does not state that a court cannot order such an arrangement. That question was not posed.

IV. CONCLUSION

Contrary to the holding of the Fifth District, nothing in the above provisions prevents a court from ordering that alimony payments are to be excluded from the gross income of the payee and not deducted by the payor. Both the husband and wife agree on this point. However, after this Court granted review in the present case, the trial court below amended the Rykiels’ final judgement of dissolution to delete reference to the taxability of the alimony payments. The husband now asks this Court to take judicial notice of the amended final judgment and dismiss this case. The wife opposes the motion.

We conclude that the issue posed in the instant case is presented clearly, has been fully briefed, is of great public interest, and is likely to recur. This Court in the past has addressed other such issues that were moot as to the parties but nevertheless were important and likely to recur. See, e.g., Nichols v. Nichols, 519 So.2d 620 (Fla.1988) (“We note that this cause has become moot.... We nevertheless exercise our prerogative to review this case because it poses a question of general interest and importance in the administration of law, and is likely to recur.”). Accordingly, we take judicial notice of the amended final judgment but decline to dismiss this case.

We quash Rykiel v. Rykiel, 795 So.2d 90 (Fla. 5th DCA 2000), as explained herein.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

      . See State v. Glatzmayer, 789 So.2d 297, 301-02 n. 7 (Fla.2001) ("If the ruling consists of a pure question of law, the ruling is subject to de novo review.”).