source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard Steven AULT, Appellant, v. STATE of Florida, Appellee.
    No. SC00-863.
    Supreme Court of Florida.
    Nov. 6, 2003.
    Rehearing Denied Feb. 4, 2004.

      Carey Haughwout, Public Defender, and Richard B. Greene and Jeffrey L. Anderson, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Melanie Ann Dale, Assistant Attorney General, West Palm Beach, FL, for Appel-lee.
   PER CURIAM.

We have on appeal two convictions of first-degree murder and two sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the convictions but vacate the death sentences and remand for a new penalty phase proceeding beforé a new jury.

FACTS

Howard Steven Ault was charged with’ two counts of first-degree murder in the deaths of two young sisters, eleven-year-old Deanne Mu’min and seven-year-old Alicia Jones. Ault was also charged with two counts of sexual battery on a child under twelve years old, two counts of kid-naping a child under thirteen years old, and two counts of aggravated child abuse.

The evidence and testimony presented at trial established the following facts. The two victims were living with their mother Donna Jones and their two-year-old sister in a-pop-up trailer attached to the family car. When the mother could afford the camping fee, the family would camp at John Easterlin County Park in Broward County. The family had been camping at the park on and off for many months. Ault met the family at Easterlin Park a few days before the girls disappeared. He offered to let the family shower at his house, and gave Jones a hand-drawn map to his house. Ault also gave the two sisters a ride in his truck the same day and their mother scolded them for getting in his truck. A few days before the two sisters disappeared, a witness saw Ault talking to the girls and buying them snacks at a convenience store which the girls passed on their way home from school.

On Monday, November 4, 1996, the two girls left school at 2:05 p.m. Witnesses saw the girls walking home, but the girls never arrived at the park. Their mother looked for them at school and eventually went to Ault’s -h'ousé later in the evening. Ault stated that he had not seen the girls and asked the mother not to call the police as he had some problems with the police in the past. The mother went to her cousin’s house and called the police. The police went to Ault’s apartment and asked whether he had seen the girls. Ault stated that he had not seen the girls and allowed the officers to look around his apartment.

Ault and his wife voluntarily agreed to come to the Oakland Park Police Department to give sworn statements the next day. Detective William Rhodes, the lead officer on the case, interviewed Ault and his wife at the police department. Ault stated that he had only met the girls once a few days earlier in Easterlin Park, and that the girls had never been in his truck. Shortly after this interview, Officer Deborah Cox of the Broward County Sheriffs Department arrested Ault on an unrelated charge of attempted sexual battery of a minor that had occurred’ eleven months earlier. Ault was taken to the Broward County jail. In the meantime, Rhodes iocated witnesses who had seen the girls in Ault’s truck, had seen Ault with the girls on several occasions, and had seen Ault and his vehicle at the convenience store at the approximate time that the girls were walking home from school on the day they disappeared, all of which contradicted Ault’s voluntary statement.

The next day, Rhodes visited Ault at the Broward County jail and explained that his investigation of the girls’ disappearance indicated that Ault had lied at the initial interview. When Ault indicated his desire to speak to Rhodes, Rhodes read Ault his Miranda rights and Ault waived these rights. Ault confessed that he had killed the girls within an hour after he had taken them to his apartment. Ault agreed to show Rhodes where the bodies were. Ault led the police to his apartment, confessed that the girls were in the attic, and explained that the officers who had looked around the night before had not looked in the attic. Ault signed a consent-to-search form and the police found the girls’ bodies in the attic as Ault had stated.

Ault was taken to the Oakland Park Police Department and insisted that he would only speak to Rhodes. Ault then gave a taped confession in which he revealed the following details. Ault planned to sexually assault the girls when he met them in front of the convenience store about 2:30 p.m. on November 4, 1996. He offered the girls a ride, and lured them to his house with the promise of candy. He sexually assaulted eleven-year-old Deanne with his finger and also penetrated her with his penis. When Deanne started to scream and fight, Ault strangled her until she stopped screaming. He then strangled seven-year-old Alicia to keep her from telling anyone about the incident, but he did not sexually assault her. Ault redressed Deanne and put the bodies of both girls in his attic. Ault said that he killed the girls because he was afraid they would tell someone what he had done. Because he was already on community control for sexual assault on a child under twelve years of age, he feared that he would go to jail for at least twenty-five years. He also stated that he thought about the trauma his wife had experienced when he was previously arrested and did not want to put her through that trauma again.

The medical examiner testified that both girls died from manual strangulation, that there was bruising and hemorrhaging of Deanne’s vaginal tissue, that Deanne had been dead for approximately two days when her body was found, and that, based on the decomposition of her body, Alicia had died twelve to eighteen hours after Deanne. Based on the lesser state of decomposition of Alicia’s body and a white foamy substance coming from her mouth, the medical examiner stated that Alicia appeared to have been alive, albeit comatose, at the time she was placed in the attic.

The defense rested without presenting any evidence, except for two documents: Ault’s notice to invoke his rights to counsel and to remain silent in the unrelated attempted sexual battery case, and the court order acknowledging that invocation of rights. The jury found Ault guilty on all charges. At the request of defense counsel, the penalty phase proceeding was scheduled approximately six weeks after the guilt phase concluded.

After the presentation of penalty phase evidence and testimony by witnesses for both the State and the defense, the jury recommended death on both counts of murder by a nine-to-three vote. The trial judge followed the jury’s recommendation and imposed two death sentences. The judge found six aggravating circumstances: Ault was previously convicted of a felony and placed on community control (great weight); Ault was previously convicted of a violent felony (great weight); the murders were committed while Ault was engaged in sexual battery, aggravated child abuse, and kidnapping (great weight); the murders were committed to avoid arrest (full weight); the murders were heinous, atrocious, or cruel (great weight); the victims were less than twelve years of age (great weight). The court found no statutory mitigators and six nonstatutory mitigators: family relations and troubled childhood (little weight); prenatal care (little, if any, weight); sexual and physical abuse (some weight); organic brain damage (little weight); pedophilia and compulsive mental disorder (some weight); and remorse (some weight). The trial court concluded that the aggravating factors far outweighed the mitigating factors and that the circumstances of the case and Ault’s history placed the case in the category of the most aggravated and least mitigated of first-degree murders. Thus, the court sentenced Ault to death for both murders.

Ault appeals his convictions and sentences to this Court, raising nine issues on appeal. Ault contends that: (1) the trial court erred in denying his motion to suppress his statements to the police; (2) the trial court erred in granting the State’s challenge for cause of juror Reynolds; (3) the trial court erred in denying his motion for a penalty phase mistrial based on the prosecutor’s questioning of witnesses about collateral crimes; (4) the trial court erred by not allowing a defense expert to express his opinion as to the applicability of a statutory mental mitigating factor; (5) the trial court erred in permitting two penalty phase witnesses to testify about hearsay evidence; (6) the trial court erred in denying his request to discharge penalty phase counsel; (7) the aggravating circumstance that the murder was committed in the course of a specified felony is unconstitutional; (8) his death sentence violates the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (9) the trial court erred in sentencing him under the 1995 sentencing guidelines for the noncapi-tal offenses and in imposing a departure sentence without contemporaneous written reasons for the departure. The State addresses one issue relating to this Court’s proportionality review of the death sentences on appeal. The State contends that Ault’s two death sentences are proportional in light of the six aggravating factors, no statutory mitigating factors, and the weak nonstatutory mitigating factors.

GUILT PHASE

Ault raises only one guilt phase issue. He argues that the trial court erred in denying his motion to suppress the statements that he made to Detective Rhodes following his arrest on the unrelated attempted sexual battery charge. After Ault was arrested on the unrelated charge, he was transported to the Broward County jail. Ault also signed a form invoking his right to counsel and right to remain silent on this unrelated charge. At Ault’s hearing the day after his arrest on the unrelated sexual battery charge, the magistrate found probable cause for the arrest and, in light of Ault’s invocation of his rights, issued an order in this unrelated case prohibiting police officers from speaking to Ault without his attorney. After the magistrate issued this order, Rhodes visited Ault at the Broward County jail to ask him about the contradictory information that other witnesses had revealed in this case. Ault admitted that he had lied in his earlier voluntary statement, confessed that he had killed the girls, and offered to show the location of the bodies. After the bodies were located, Ault gave another statement revealing details of the crimes.

Ault filed a motion to suppress all of his statements. The trial court held an evi-dentiary hearing on this motion to suppress and heard argument from both sides. Ault’s attorney argued that the statements should be suppressed on three grounds: (1) the probable cause for Ault’s arrest on attempted sexual battery was stale eleven months after the incident and thus Officer Cox did not have probable cause to arrest him on that charge and any evidence derived from that illegal arrest should be suppressed; (2) the arrest for attempted sexual battery was pretextual in order to place Ault in custody so that the police could question him about the two missing girls and thus the arrest was illegal; and (3) Ault had invoked his Fifth and Sixth Amendment rights to counsel in open court and Detective Rhodes violated these rights by talking to him without counsel being present.

The witnesses at the evidentiary hearing included Detective Rhodes, Officer Cox of the Broward Sheriffs Office, who arrested Ault for the unrelated attempted sexual battery of a minor that had occurred eleven months earlier, and a Florida Department of Law Enforcement agent who assisted the Oakland Park Police Department with the investigation.

Rhodes testified that Ault and his wife voluntarily came to the Oakland Park Police Department and gave sworn statements on November 5, 1996. In his statement, Ault stated that he had only seen the girls once and that they had never been in his vehicle. After Rhodes took Ault’s voluntary statement, Rhodes interviewed other witnesses who contradicted Ault as these witnesses had seen the girls with Ault on various dates and had also seen the girls in his truck. Both Rhodes and Cox testified that there was no discussion between their offices about their respective cases.

Officer Cox testified that her husband, an officer at the Oakland Park Police Department, called her when he recognized Ault’s name as the suspect in her open case of attempted sexual battery. Cox testified that she did not discuss this with any other Oakland Park officers, nor did she discuss her decision to arrest Ault. Cox stated that she told Ault about the allegation against him; Ault denied any knowledge of the allegation and refused to speak to her. Cox also testified that she placed Ault under arrest for the December 1995 attempted sexual battery and that at the hearing the next day, the magistrate found probable cause for the arrest on the unrelated attempted sexual battery. It was also revealed at the evidentiary hearing that Officer Cox had been fired from the Broward Sheriffs Office based on the delay between the victim’s February 1996 statement about the attempted sexual battery and the officer’s November 1996 contact with Ault. However, Officer Cox also testified that she was being reinstated to the Broward Sheriffs Office after arbitration.

Rhodes testified that he was not aware that Cox had arrested Ault on this unrelated charge until Ault had already been placed in a holding cell. Based on the contradictory information he learned from other witnesses, Rhodes decided to talk to Ault at the Broward jail the day after his arrest. Rhodes testified that he did not know that Ault had attended a magistrate hearing or had signed a rights invocation form on the other charge when he talked to Ault at the Broward jail. Rhodes read Ault his Miranda rights before talking to him; Ault waived his rights and signed a waiver form. During the initial untaped conversation, Ault admitted that he killed the girls and offered to take Rhodes to their bodies and to provide a taped statement afterwards. Ault led the officers to his apartment, indicated that the bodies were in the attic, and signed a consent to search form. After the bodies were found, Ault was taken to the Oakland Park Police Department where he gave a videotaped statement detailing the crimes.

At the suppression hearing, the judge ruled that the probable cause to arrest Ault on the unrelated attempted sexual battery was not “stale” just because it was based on a statement by the victim and her father taken nine months earlier, and that the uncontested testimony of the officers showed that the arrest for the attempted sexual battery was not pretextual. The judge asked the parties to provide supplemental memoranda on the third issue: whether Ault’s invocation of his right to remain silent and right to counsel in regard to the 1995 attempted sexual battery rendered Rhodes’ interview and Ault’s subsequent statements inadmissible. After reviewing the memoranda and the transcript of Ault’s confession, the judge also denied the motion to suppress on this basis. The judge relied upon this Court’s decision in Sapp v. State, 690 So.2d 581 (Fla.1997).

In Sapp, this Court concluded that a defendant may only invoke his Fifth Amendment right to counsel when two requirements are met: the defendant is in a custodial setting and there is an official interrogation. 690 So.2d at 585. Sapp had been arrested for a robbery, advised of his Miranda rights, waived them, and agreed to speak to the police. After his arrest, he met with his public defender in a holding room and signed a claim of rights form in which he invoked both his Fifth and Sixth Amendment rights to counsel and to remain silent. One week later, while Sapp was still in jail on the robbery charge, he was taken to the homicide office and questioned about a different robbery-homicide. Sapp was again advised of his rights, waived them in writing, talked to the police without requesting an attorney, and signed a written statement. Twelve hours later Sapp was approached by the police again. At this encounter, Sapp signed a second waiver form, agreed to talk to , a detective, and signed a second written statement. Sapp’s motion to suppress his statements was denied by the trial court and he was convicted of attempted armed robbery and first-degree felony murder. On appeal, the First District Court of Appeal held that Sapp’s attempt to invoke his Fifth Amendment right to counsel through the claim of rights form was not effective because custodial interrogation had not begun and was not imminent when he signed the form. See Sapp v. State, 660 So.2d 1146 (Fla. 1st DCA 1995), approved, 690 So.2d 581 (Fla.1997).

This Court reviewed the district court’s decision in Sapp on the basis of a certified question asking whether a person in custody can invoke his Fifth Amendment right to counsel under Miranda by signing a claim-of-rights form shortly before the first appearance hearing, even though interrogation is not imminent. 690 So.2d at 588. In addressing the certified question, this Court cited to McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), which held that an accused’s request for counsel at the initial appearance on a charged offense, while effective to invoke the Sixth Amendment right to counsel, did not constitute an invocation of the Fifth Amendment right to counsel under Miranda that would preclude police interrogation on unrelated, uncharged offenses. This Court also noted that at least three federal appellate courts have concluded that, based on McNeil, an individual may not invoke the Miranda right to counsel before custodial interrogation has begun or is imminent.. Sapp, 690 So.2d at 585. Based on these cases, this Court concluded that the presence of both a custodial setting and official interrogation is required to trigger the Fifth Amendment right-to-counsel under Miranda and the parallel provision in article I, section 9 of the Florida Constitution. Id. at 585-86. Under Sapp, a defendant may not properly invoke this right to counsel through a claims form which has been executed “ ‘removed from the strictures of custodial interrogation feared by the Miranda court.’ ” Id. at 585 (quoting Alston v. Redman, 34 F.3d 1237, 1245 (3rd Cir. 1994)). Accordingly, this Court answered the certified question in the negative and approved the decision of the First District in Sapp. Id. at 586.

In Sapp, this Court also disapproved the decision of the Second District Court of Appeal in State v. Guthrie, 666 So.2d 562 (Fla. 2d DCA 1995), quashed, 692 So.2d 888 (Fla.1997), which was in conflict with the Court’s decision in Sapp. 690 So.2d at 586. In Guthrie, the Second District held that a defendant’s claim-of-rights form signed at a first appearance hearing on a grand theft charge precluded the police from questioning the defendant on unrelated allegations of sexual child abuse. The circuit court had suppressed Guthrie’s confession to the child abuse charges and the district court affirmed the ruling because it concluded that the “invocation of the constitutional right to counsel bars un-counseled interrogation during continuous custody unless initiated by the defendant.” 666 So.2d at 562.

Ault argues that Sapp is distinguishable from his case because Sapp’s interrogation on the second unrelated charge occurred one week after Sapp had been arrested on the charge in which he invoked his rights. However, the time frame in Guthrie is remarkably similar to the instant case. Guthrie was arrested on the grand theft charges at 12:30 a.m., taken to first appearance at 8 a.m. and invoked his rights, and questioned by the police on the unrelated charge approximately seven hours later. Further, it is clear from the analysis in Sapp that this Court was not concerned with the time between the invocation of rights and the questioning on the unrelated charge. Rather, it is custodial interrogation that triggers the Miranda prophylactic. As this Court explained in Sapp, “requiring the invocation [of the right to counsel] to occur either during custodial interrogation or when it is imminent strikes a healthier balance between the protection of the individual from police coercion on the one hand and the State’s need to conduct criminal investigations on the other.” 690 So.2d at 586. As we stated in Traylor v. State, 596 So.2d 957, 965 (Fla.1992), “We adhere to the principle that the state’s authority to obtain freely given confessions is not an evil, but an unqualified good.” Accord Hess v. State, 794 So.2d 1249, 1259-61 (Fla.2001).

Here, Ault invoked his rights at the magistrate hearing on the unrelated charge. Although Ault was in custody on this unrelated charge at the time he invoked his rights, he was not being interrogated, and no interrogation was imminent on the case involving the disappearance of the girls. See Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (“[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”). Prior to his arrest on the unrelated attempted sexual battery charge, Ault had voluntarily given a statement about the missing girls to Detective Rhodes and was free to leave the Oakland Park Police Department. After this voluntary encounter concluded, Ault was arrested by an officer from the Broward County Sheriffs Department on the unrelated charge. It was only after Detective Rhodes’ discussions with other witnesses, which occurred after Ault’s arrest on the unrelated charge, revealed information that contradicted Ault’s previous voluntary statement that the police found it necessary to again question Ault about the girls’ disappearance. Having already made a statement to the police concerning the girls’ disappearance, Ault had no objective reason to believe further questioning on that case was imminent.

Thus, Ault’s invocation of rights at the magistrate hearing only precluded the police from questioning Ault about the attempted sexual battery charge, not the unrelated murders. Accordingly, we affirm the trial court’s ruling on the motion to suppress. Ault’s confession to the murders of the two sisters and the other crimes was properly admitted.

While Ault raises no claim relating to the sufficiency of the evidence to support his convictions, we have reviewed the evidence and find sufficient evidence to support his convictions. See Sexton v. State, 775 So.2d 923, 933 (Fla.2000) (“[I]t is this Court’s independent obligation to review the record for sufficiency of evidence.”); Fla. R.App. P. 9.140(i). Accordingly, we affirm Ault’s convictions for first-degree murder, sexual battery on a child under twelve years old, kidnapping a child under thirteen years old, and aggravated child abuse.

PENALTY PHASE

While Ault raises a number of claims relating to the penalty phase of his trial, we find his claim relating to the dismissal of a potential juror to be dispositive and to require a new penalty phase proceeding before a new jury.

Ault claims that the trial court erroneously granted the State’s challenge for cause of potential juror Joyce Reynolds. The State challenged Reynolds based on her opposition to the death penalty, arguing that Reynolds had stated that she could not make a recommendation of death even if the aggravating circumstances outweighed the mitigating circumstances. Defense counsel responded that Reynolds had stated that she would follow the court’s instructions on the law in both the penalty and guilt phase and thus had been rehabilitated. The circuit court granted the State’s cause challenge. Defense counsel objected and requested an opportunity to further question Reynolds in order to rehabilitate her. The circuit court denied the request, stating that there had been adequate inquiry by both sides. Defense counsel renewed the objection to Reynolds’ removal for cause prior to the jury being sworn. Thus, the issue was properly preserved for review on appeal and Ault did not waive his objection to the cause challenge. See Arnold v. State, 755 So.2d 696, 698 (Fla. 4th DCA 1999) (explaining that in order to prevent waiver of juror challenge issue, opponent must call court’s attention to its earlier objection before jury is sworn).

The test for determining juror competency is whether a juror can lay aside any bias or prejudice and render a verdict solely on'the evidence presented and the instructions on the law given by the court. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See Bryant v. State, 656 So.2d 426, 428 (Fla.1995). “In reviewing a claim of error such as this, we have recognized that the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors’ voir dire responses and make observations which simply cannot be discerned from an appellate record.” Smith v. State, 699 So.2d 629, 635-36 (Fla.1997); see also Taylor v. State, 638 So.2d 30, 32 (Fla.1994). Thus, a trial court has great discretion when deciding whether a challenge for cause based on juror incompetency is proper. See Pentecost v. State, 545 So.2d 861 (Fla.1989). A trial court’s determination of juror competency will not be overturned absent manifest error. See Kimbrough v. State, 700 So.2d 634, 639 (Fla.1997).

However, prospective jurors may not be excused for cause simply because they voice general objections to the death penalty. See Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The relevant inquiry in deciding whether prospective jurors may be excluded for cause based on their views on capital punishment is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with [the court’s] instructions and [the juror’s] oath.’ ” Gray v. Mississippi, 481 U.S. 648, 658, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)).

While we give deference to the trial judge who sees and hears the juror and often has to make credibility findings based on information that- cannot be easily discerned from an appellate record, Witt, 469 U.S. at 429, 105 S.Ct. 844, the record in the instant case directly contradicts the judge’s ruling. During voir dire questioning by the State, Reynolds raised her hand to indicate her opposition to the death penalty. In response to questioning by defense counsel, Reynolds expressed her belief that a juror would make a better decision when calm and deliberate rather than when upset and angry, that just because she heard testimony from a witness it was not the same as proof beyond a reasonable doubt because the witness could be lying, expressed some concern about how her experiences with death in her personal life might affect her ability to find guilt or innocence or impose a proper penalty, stated that she could put her personal feelings aside and be fair in the penalty phase, and stated that she could be fair in both the guilt and penalty phases even though she was personally opposed to the death penalty. These áre the only instances where Reynolds was personally questioned during voir dire. The State argued that Reynolds had indicated that she could not consider both sentences and would not impose death even if the aggravating circumstances outweighed the mitigating circumstances. The trial judge granted the challenge for cause and voiced his “agree[ment] with the State.” However, the record of Reynolds’ responses directly contradicts the State’s recitation of her responses. Reynolds did not state that she could not consider both sentences and would not impose death even if the aggravating circumstances outweighed the mitigating. In.fact, the voir dire record shows that Reynolds was not questioned about these issues at all. Thus, the trial judge’s determination that it was proper to strike Reynolds for cause was premised on an erroneous recitation of her statements.

We conclude that Reynolds’ responses, i.e., that she could put her personal feelings aside and be fair in the penalty phase and that she could be fair in the guilt and penalty phases even though she opposed the death penalty, satisfied the Lusk juror competency standard. Thus, the circuit court erred in granting the State’s challenge for cause.

The State argues that even if Reynolds was erroneously removed for cause, the error was harmless as the State had two peremptory challenges left at the end of voir dire questioning and could have used one of these to strike Reynolds. We conclude that such error is not subject to harmless error analysis. See Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 389 (1976); Farina v. State, 680 So.2d 392, 396 (Fla.1996). As the United States Supreme Court explained in Gray,

The unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court’s erroneous ruling. Rather, the relevant inquiry is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.”

481 U.S. at 664-65, 107 S.Ct. 2045 (quoting Moore v. Estelle, 670 F.2d 56, 58 (5th Cir.1982) (Goldberg, J., specially concurring)). In a capital case it is reversible error to exclude for cause a juror who can follow the instructions and oath in regard to the death penalty. “The nature of the jury selection process defies any attempt to establish that an erroneous Wither-spoon-Witt exclusion of a juror is harmless.” Id. at 665. However, only the death sentence — and not the conviction— must be vacated when a juror is erroneously excluded under these circumstances. See Farina, 680 So.2d at 396 n. 3; Chandler v. State, 442 So.2d 171, 175 (Fla.1983). Thus, we conclude that the erroneous exclusion of this “scrupled, yet eligible, veni-re member” from Ault’s jury requires reversal of his death sentences. Gray, 481 U.S. at 667, 107 S.Ct. 2045.

Although the juror challenge issue is dispositive, we address one other penalty phase claim raised by Ault for purposes of instruction during the new penalty phase proceeding.

Ault argues that the aggravating circumstance that the murder was committed in the course of committing a specified felony is unconstitutional because it constitutes an automatic aggravator and does not narrow the class of persons eligible for the death penalty. This Court has repeatedly found the murder in the course of a felony aggravator to be constitutional. See Hitchcock v. State, 755 So.2d 638, 644 (Fla.2000); Blanco v. State, 706 So.2d 7, 11 (Fla.1997) (containing citation to numerous cases in which this Court has upheld and applied the murder in the course of a felony aggravator); Banks v. State, 700 So.2d 363, 367 (Fla.1997); Mills v. State, 476 So.2d 172, 178 (Fla.1985) (rejecting argument that murder in the course of a felony aggravator creates automatic aggravating circumstance for all felony-murder cases because Legislature has reasonably determined that first-degree murder committed in course of another dangerous felony is aggravated capital felony). This Court has also rejected constitutional challenges to the murder in the course of a felony aggravator based on equal protection, due process, and cruel and unusual punishment. See, e.g., Clark v. State, 443 So.2d 973, 978 (Fla.1983); Menendez v. State, 419 So.2d 312, 314-15 (Fla.1982). Thus, there is no merit to this claim.

SENTENCING ON NONCAPITAL OFFENSES

Ault was also convicted of two counts of kidnapping a child under thirteen years old and two counts of aggravated child abuse. Ault was sentenced under the 1995 sentencing guidelines for these non-capital offenses. He was sentenced to 511 months on each of the kidnapping counts and 360 months on each of the aggravated child abuse counts. The trial court made these sentences consecutive to each other and to Ault’s other sentences.

Ault claims that the sentences for the noncapital offenses are illegal because he was sentenced under the 1995 guidelines, which this Court ruled unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000); the trial court imposed a departure sentence without offering contemporaneous written reasons for the departure; and the consecutive sentences resulted in a departure from the guidelines range. The State agrees that the case must be remanded for resentencing on these noncapital offenses.

This Court has held that it is reversible error for a court to give a departure sentence without offering contemporaneous written reasons for the departure. See Robertson v. State, 611 So.2d 1228, 1234 (Fla.1993) (concluding that trial court erred in imposing consecutive life sentences for noncapital felonies of armed robbery and armed burglary where the court did not provide written reasons for the sentencing departure); see also § 921.001(6), Fla. Stat. (1995) (“Any sentence imposed outside the range recommended by the guidelines must be explained in writing by the trial court judge.”). In the instant case, the State concedes that the consecutive nature of the sentences for the noncapital offenses resulted in a total sentence which exceeded the top of the guidelines range. This is permissible where the court provides valid written reasons for the departure. While the State filed a motion asking the circuit court to depart from the recommended guidelines sentence on Ault’s noncapital felonies and to impose the sentences consecutive to each other, the court denied that motion and ordered the State to prepare a sentencing guidelines score sheet for the noncapital offenses. The court gave no reason for its decision to impose the consecutive sentences, which constituted a departure from the guidelines range.

Ault was sentenced under the 1995 sentencing guidelines. In Heggs, this Court struck down the 1995 guidelines because they were enacted by legislation that violated the single subject rule contained in article III, section 6 of the Florida Constitution. Individuals, such as Ault, who were sentenced under the invalidated 1995 guidelines and who fall into the Heggs window are entitled to have their sentences recalculated under the 1994 guidelines. Normally, when a trial judge fails to provide written reasons for a sentence that departs from the guidelines, the reviewing court must reverse with instructions to resentence the defendant in accordance with the sentencing guidelines without possibility of departure. See Donaldson v. State, 722 So.2d 177, 189 (Fla.1998). However, as this Court explained in Heggs, “in the sentencing guidelines context, ... if a person’s sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that person shall not be entitled to relief under our decision here.” 759 So.2d at 627; see also Smith v. State, 761 So.2d 419, 422 (Fla. 2d DCA 2000).

If the sentences imposed for these non-capital offenses could not have been lawfully imposed under the 1994 sentencing guidelines, then Ault must be resentenced in accordance with those guidelines without departure. Thus, we remand this case to the circuit court for resentencing under the 1994 sentencing guidelines on Counts 5-8.

Conclusion

For the reasons discussed above, we affirm Ault’s convictions but vacate his death sentences and ■ remand for a new penalty phase proceeding before a new jury. We also remand for resentencing under the 1994 sentencing guidelines on the noncapital offenses.

It is so ordered.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The circuit court grouped the seventy-one nonstatutory mitigators proposed by Ault into these six categories.

      . See United States v. LaGrone, 43 F.3d 332 (7th Cir.1994); Alston v. Redman, 34 F.3d 1237 (3rd Cir.1994); United States v. Wright, 962 F.2d 953 (9th Cir.1992).

      . The voir dire record does not contain any other questioning of Reynolds by the State.

      . During voir dire questioning by the defense, the following inquiry took place:
      Mr. Kulik [defense counsel]: Ms. Reynolds, do you think that a person’s decision, any person, do you think their decision is better when they are angry or upset or when they are calm and deliberate?
      Ms. Reynolds: I think their decision is better when they are calmer.
      Mr. Kulik: If you were a juror on a case, and there is something about the case that was upsetting to you, made you angry early do you think that you would be able to make a better decision if, after getting angry and upset you could become calmer and more deliberate about it?
      Ms. Reynolds: Yes, I could.

      . During voir dire questioning by the defense, the following inquiry took place:
      Mr. Kulik: Okay. You will hear the testimony of a witness which you believe the witness, is it the same as proof beyond a reasonable doubt?

      Mr. Kulik: Ms. Reynolds is shaking her head no. Why would you say no?
      Ms. Reynolds: Can you repeat the question?
      Mr. Kulik: Have you had a situation in which you believe people—
      Ms. Reynolds: Yes.
      Mr. Kulik:. — but what they told you later turned out not to be accurate, they could be wrong, they could be lying to you?
      Ms. Reynolds: Yes.
      Mr. Kulik: Maybe you didn’t understand what they said. It was misleading somewhat so I will ask you again. Do you think that believing a witness is the same thing [as] allegation [of] proof beyond a reasonable doubt?
      Ms. Reynolds: What they were saying, no that is the same guy that was pointed out 'when, in fact, it was incorrect.

      . Defense counsel Smith asked the entire ve-nire, "I want you to tell us how any experience [with] death in your life might éffect you with finding either guilt or innocence or a proper penalty while being fair and impartial to Mr. Ault, how any death might effect your life.... [H]ow many aren't sure how it will effect you?” Reynolds raised her hand in response.

      . During voir dire questioning by the defense, the following inquiry took place:
      Ms. Smith [defense counsel]: [I]f you find Steve guilty of these crimes, all of these crimes, if you can put aside feelings that you have, legitimate feelings and be fair and impartial now is the time to come clean.

      Ms. Smith: Ms. Reynolds?
      Ms. Reynolds: Yes, I would put my feelings aside.

      . During voir dire questioning by the defense, the following inquiry took place:
      Ms. Smith: Ms. Reynolds, L believe you said that you oppose the death penalty?
      Ms. Reynolds: Yes, I do.
      Ms. Smith: After everything has been discussed in this room, in this courtroom, and you understand that you are in opposition and your feelings about the death penalty are important to you, but riot in this process, are you a juror who can be fair and impartial in the guilt phase and the penalty phase of this trial?
      Ms. Reynolds: Yes, I can.

      .The following discussion took place during the State's motion to strike juror Reynolds for cause:
      Mr. Donnelly [prosecuting attorney]: The State would move to strike juror number twenty-seven, Joyce Reynolds for cause. Ms. Reynolds indicated that she is opposed to the death penalty and that she could not consider both sentences and cannot make a recommendation of death even if the aggravating circumstances outweigh the mitigating circumstances.
      The Court: Defense.
      Mr. Kulik: I would submit that Ms. Reynolds is in the same category as Mrs. Aaron. At the end she did state she would follow the court's instructions on the law in both the penalty phase and the guilt phase of the trial. She was therefore rehabilitated.
      The Court: Without any reference to Mrs. Aaron, I agree with the State, I will grant that one. . ■ .
      Mr. Kulik: We object.
      The Court: So noted.
      Ms. Smith: Your Honor, I would again ask that we be able to bring her back in if the State is going to strike her for cause so that we could attempt to rehabilitate her.
      The Court: I am not going to allow that. I believe there was adequate inquiry extensively on both sides.

      . We conclude that our resolution of the juror challenge issue renders claims 3, 4, 5, 6, and 8 and the State’s proportionality claim moot.

      . Ault was also convicted of two counts of sexual battery on a child under twelve years of age, which is a capital felony under section 794.01 l(2)(a), Florida Statutes (1995). He was sentenced to life imprisonment without the possibility of parole, as provided in section 775.082(1), Florida Statutes (1995).

      . See Trapp v. State, 760 So.2d 924, 928 (Fla.2000) (stating that defendants have standing to challenge a sentence imposed under the guidelines struck down in Heggs if the relevant criminal offense or offenses occurred on or after October 1, 1995, and before May 24, 1997).


author: PER CURIAM. ANSTEAD, C.J.,

text:
    Edward ZAKRZEWSKI, Appellant, v. STATE of Florida, Appellee.
    No. SC02-1734.
    Supreme Court of Florida.
    Nov. 13, 2003.
    Rehearing Denied Feb. 4, 2004.

      Baya Harrison III, Monticello, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Edward Zakrzewski was sentenced to death for the murder of his wife and two young children. This Court affirmed his death sentences on appeal. See Zakrzewski v. State, 717 So.2d 488, 490 (Fla.1998). Now in postconviction proceedings, Za-krzewski appeals the trial court order denying his motion for postconviction relief after an evidentiary hearing. The four issues raised on appeal are whether (1) his lawyers in the penalty phase provided ineffective assistance of counsel by failing to object to certain closing arguments; (2) his lawyers were ineffective for failing to move to suppress evidence; (3) his guilty pleas were involuntary and should be set aside; and (4) his death sentence is unconstitutional based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We conclude that no error occurred in the trial court’s denial of post-conviction relief in this case and therefore affirm the'trial court’s order.

FACTS AND PROCEDURAL HISTORY

Zakrzewski pled guilty to the first-degree murders of his wife, Sylvia, and his two children, Edward and Anna. A penalty phase before a jury was held that established the following facts:

Zakrzewski and his wife had been experiencing marital problems for some time prior to the murders. Zakrzewski twice told a neighbor that he would kill his family rather than let them go through a divorce. On June 9, 1994, the morning of the murders, Edward called Zakrzew-ski at work and stated that Sylvia wanted a divorce. During his lunch break, Zakrzewski purchased a machete. He returned to work and completed his daily routine. That evening, Zakrzewski arrived home before his wife and children. He hid the machete in the bathroom.
After his family arrived home, Za-krzewski approached Sylvia, who was sitting alone in the living room. He hit her at least twice over the head with a crowbar. The testimony established that Sylvia may have been rendered unconscious as a result of these blows, although not dead. Zakrzewski then dragged Sylvia into the bedroom, where he hit her again and strangled her with rope.
Zakrzewski then called Edward into the bathroom to come brush his teeth. As Edward entered the room, Zakrzew-ski struck the boy with the machete. Edward realized what his father was doing and tried to block the blow with his arm, causing a wound to his wrist. Further blows caused severe head, neck, and back injuries, and resulted in death.
Zakrzewski then called Anna into the bathroom to brush her teeth. Zakrzew-ski testified that he hit the girl with the machete as soon as she entered the bathroom. The State’s expert testified that the blood spatters from Anna show that the girl was kneeling over the bathtub when she was struck by the machete. Cuts were found on Anna’s right hand and elbow, consistent with defensive wounds. The blows from the machete resulted in Anna’s death. The evidence was in conflict as to whether Anna was aware of her impending death.
Finally, Zakrzewski dragged his wife from the bedroom to the bathroom. He still was not sure if she was dead, so he hit her with the machete. Sylvia died from blunt force injuries as well as sharp force injuries.
Following the murders, Zakrzewski drove to Orlando and boarded a plane bound for Hawaii. While in Hawaii, Za-krzewski changed his name and lived with a family who ran a religious commune. After he had been there four months, the family happened to watch the television show “Unsolved Mysteries,” which aired Zakrzewski’s picture. Zakrzewski turned himself in to the local police the next day.

Zakrzewski, 717 So.2d at 490-91.

At the conclusion of the penalty phase, the jury recommended the death penalty by a vote of seven to five for the murders of Sylvia and Edward, and recommended a sentence of life imprisonment for the murder of Anna. See id. at 491. The trial court found the same three aggravating factors with respect to each of the murders: (1) the defendant was previously convicted of other capital offenses (the contemporaneous murders); (2) the murders were committed in a cold, calculated, and premeditated manner without pretense of legal or moral justification (CCP); and (3) the murders were committed in an especially heinous, atrocious, or cruel manner (HAC). See id. The trial court found two statutory mitigators: (1) no significant prior criminal history; and (2) the murders were committed while the defendant was under the influence of extreme mental or emotional disturbance. The trial court also found and weighed twenty-four non-statutory mitigators. See id. Finding that the aggravating circumstances outweighed the mitigating circumstances for each of the three murders, the trial court imposed three death sentences, following the jury’s recommendation for the murders of Sylvia and Edward and overriding the jury’s recommendation of a life sentence for the murder of Anna. See id.

On direct appeal, Zakrzewski raised nine issues. See id. at 492. This Court concluded that the trial court erroneously found HAC with respect to Sylvia’s murder but further concluded that the error was harmless beyond a reasonable doubt. See id. at 492-93. The Court rejected the remainder of Zakrzewski’s arguments and affirmed the three death sentences. See id. at 495. The United States Supreme Court denied certiorari. See Zakrzewski v. Florida, 525 U.S. 1126, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999).

Zakrzewski then filed a motion for post-conviction -relief under Florida Rules of Criminal Procedure 3.850 and 3.851, in which he raised the following claims: (1) trial counsel were ineffective for failing to move to suppress evidence seized from his home; (2) his guilty pleas were involuntary; (3) he was denied a fair penalty phase before a panel of impartial, indifferent jurors; and (4) trial counsel were ineffective for failing to object to the State’s improper and prejudicial closing argument. Subsequently, Zakrzewski filed an amendment to his postconviction motion, adding a claim that Florida’s death penalty statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Following a Huff hearing, the circuit court held an evidentiary hearing on claims (1), (2) and (4). The circuit court denied relief and Zakrzewski now appeals, raising four issues for this Court’s review.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

In Zakrzewski’s first two issues on appeal, he argues that his trial counsel were ineffective for failing to object to several comments made by the prosecutor during closing arguments and for failing to file a motion to suppress evidence taken from his home. This Court recently summarized the defendant’s burden in establishing a claim of ineffective assistance of counsel:

To establish a claim that defense counsel was ineffective, a defendant must establish deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rutherford v. State, 727 So.2d 216, 218 (Fla.1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland, 466 U.S. at 688[, 104 S.Ct. 2052], Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694[, 104 S.Ct. 2052]; Rutherford, 727 So.2d at 220.

Gore v. State, 846 So.2d 461, 467 (Fla.2003) (parallel citations omitted). Further, “when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.” Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001). As explained by this Court in Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999), both the performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are mixed questions of law and fact, and the Court will give deference to the trial court’s findings of fact that are supported by competent, substantial evidence. We address Zakrzewski’s two ineffective assistance of counsel claims separately below.

A. Failure to Object to the Prosecutor’s Comments During Closing Argument

Zakrzewski claims that defense counsel should have objected to several comments made by the prosecutor during the State’s closing argument. This Court has recognized that “the decision not to object to improper comments is fraught with danger ... because it might cause an otherwise appealable issue to be considered procedurally barred.” Chandler v. State, 848 So.2d 1031, 1045 (Fla.2003). However, this Court has also noted that “a decision not to object to an otherwise objectionable comment may be made for strategic reasons.” Id.; see also Ferguson v. State, 593 So.2d 508, 511 (Fla.1992) (“The decision not to object is a tactical one.”); McCrae v. State, 510 So.2d 874, 878 (Fla.1987) (“Whether to object to an improper comment can be a matter of trial strategy upon which a reasonable discretion is allowed to counsel.”).

After holding an evidentiary hearing, the trial court found that Zakrzewski’s trial counsel, Issac Bruce Koran and Elton Killam, both had “vast experience in criminal defense” and “during the course of the penalty phase and throughout closing arguments ... utilized a defense strategy and used their judgment to make a reasoned strategic decision on whether to object or not to the prosecutor’s statements during closing argument.” Thus, the trial court concluded that defense counsel’s performance was not deficient. We agree with this determination.

Significantly, with respect to defense counsel’s performance during the entire penalty phase proceeding, Zakrzewski’s only claim of ineffectiveness is based on defense counsel’s failure to object to specific comments made during the prosecutor’s closing argument. Our review of the entire penalty phase demonstrates that defense counsel presented substantial mitigation through both lay and expert witnesses, and presented a thorough penalty phase closing argument.

Further, during the prosecutor’s closing argument, defense counsel did object and motion for a mistrial when the prosecutor asked the jury to imagine the terror and horror Anna must have felt when she was forced down into the bath tub with her brother’s “mutilated body.” Both Killam and Koran testified at the evidentiary hearing that they did not object to the identified comments based either on strategy or a belief that a particular comment was unobjectionable. The trial court found that these experienced trial lawyers did in fact make reasonable strategic decisions regarding the failure to object and, thus, trial counsel’s performance was not deficient. Cf. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (quoting Strickland and reiterating that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”). In light of the entire record in this case and trial counsel’s overall performance during the penalty phase, we conclude that Za-krzewski has failed to demonstrate deficient performance regarding his trial counsel’s failure to object to comments during closing argument. Thus, we affirm the trial court’s denial of relief on this claim.

B. Failure to Move to Suppress Evidence

Zakrzewski also contends that his trial counsel were ineffective for failing to file a motion to suppress the evidence taken from his home. Specifically, Zakrzewski contends that the motion to suppress would have been meritorious because the initial entry into the home was done without a search warrant and that the fruits of the initial entry were used in obtaining the search warrant.

Although warrantless searches and seizures are generally prohibited by the Fourth Amendment to the United States Constitution and article I, section 12 of the Florida Constitution, police may enter private premises and conduct a search without a warrant if “exigent circumstances” exist. See Rolling v. State, 695 So.2d 278, 293 (Fla.1997). After an evidentiary hearing the trial court denied relief on this issue, finding

that the search of the home was justified under the exigent circumstances exception to the warrant requirement. Thus, the Defendant has failed to establish that counsel’s failure to file a motion to suppress was an error so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment and the Defendant failed to establish that counsel’s errors were so serious as to result in prejudice to the Defendant. Trial counsel made a reasoned informed strategic decision not to file a motion to suppress the evidence seized from the Defendant’s home; and, the Defendant has failed to establish either prong of the Strickland test pursuant to Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984).

The United States Supreme Court explained in Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 866, 88 L.Ed.2d 203 (1985), that the two-part test of Strickland applies to claims of ineffective assistance of counsel arising out of the plea process. See also Stano v. State, 520 So.2d 278, 280 n. 2 (Fla.1988) (recognizing the Hill decision); Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998) (“A trial attorney’s failure to investigate ... a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty ... constitute^] a facially sufficient attack upon the conviction.”). However, in order to establish the prejudice prong of Strickland the defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 5.Ct. 366. In addition, “[w]here defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious.” Kim-melman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

In this case, Koran stated during the evidentiary hearing that he did not file a motion to suppress because he felt it would have been “a futile exercise.” Koran explained that he believed that any motion to suppress would have been denied based on the exception to the warrant requirement for exigent circumstances. Similarly, Killam testified that he did not consider filing a motion to suppress the evidence taken from Zakrzewski’s home. Although Killam’s primary responsibility was to present mitigation during the penalty phase, he did discuss the idea of a motion to suppress with Koran and both were convinced that such a motion would have been unsuccessful.

Harold Mason, Zakrzewski’s Air Force Sergeant at the time of the murders, described the events that led up to the police entry into Zakrzewski’s residence. Mason testified that he became concerned when Zakrzewski failed to.report for class on June 13, 1994. After attempting to locate Zakrzewski by calling Zakrzewski’s home, the hospitals, the Sheriffs Office and the local police, Mason went to Zakrzewski’s home, where he noticed a broken window and accumulated mail. After speaking with neighbors, who gave differing accounts of when they had last seen Za-krzewski, Mason called the Okaloosa County Sheriffs Office and requested that a deputy meet him at Zakrzewski’s home. When Deputy Robert Baczek arrived, Mason related his attempt to locate Zakrzew-ski and indicated that he was concerned by Zakrzewski’s absence.

Deputy Baczek testified that after talking with Mason and making his own assessment of the situation, he “feared for the welfare of whomever may have been in the house at that time, thinking that there may have been a burglary, the family may have been on vacation, or something like that.” Deputy Baczek told dispatch that he “was going to enter the house through the broken window to check on the welfare and see if there had been any kind of burglary inside.” Thus, Deputy Baczek did not enter ZakrzewsM’s home with the intent to seize evidence or make an arrest.

Based on the evidence presented at the evidentiary hearing, the record in this case and the trial court’s factual findings, we conclude that Zakrzewski has failed to establish deficient performance as a result of his defense counsel’s failure to file a motion to suppress. However, even if counsel’s performance were deficient, we conclude that Zakrzewski has failed to establish that but for counsel’s errors, he would not have pled guilty. Although Zakrzewski alleged prejudice in his motion; i.e., that he would not have pled guilty, there was no evidence presented at the evidentiary hearing to establish this allegation and no reason to assume that had the motion been denied, Zakrzewski would not have still pled guilty, reserving the right to appeal. See generally Fla. R.App. P. 9.140 (b) (2) (A) (i) (“A defendant who pleads guilty ... may expressly reserve the right to appeal a prior dispositive order of the lower tribunal_”). Accordingly, we affirm the trial court’s denial of relief on this claim.

II. VOLUNTARINESS OF ZAKRZEWSKI’S GUILTY PLEAS

Zakrzewski next argues that the trial court erred in finding that his guilty pleas to the three murders were voluntary. The law is that “[a] plea of guilty must be voluntarily made by one competent to know the consequences of that plea and must not be induced by promises, threats or coercion.” Porter v. State, 564 So.2d 1060, 1063 (Fla.1990) (quoting Mikenas v. State, 460 So.2d 359, 361 (Fla.1984)). Za-krzewski does not assert that he did not understand the consequences of his pleas, but claims that his guilty pleas were involuntary due to his counsel’s unfulfilled promise that the crime scene photographs showing his wife and children would not be shown to the jury during the penalty phase.

In denying this claim, the trial court found

that the testimony of Mr. Koran and Mr. Killam regarding their dismissions with the Defendant regarding the introduction of the crime scene photographs of victims is credible. Both Mr. Koran and Mr. Killam empathetically deny that they assured the Defendant that the photographs would be suppressed. The Defendant was told that he was “entitled to a trial on the case and if he wanted to contest his guilt, he could;” however, he chose to plead guilty and counsel believed that “he understood this was his best option.” Counsel testified that they had discussions with the Defendant regarding the presentation of evidence during the penalty phase and a motion was filed to try to limit the crime scene photographs that were shown to the jury; however, at no time was the Defendant ever told that the evidence would be excluded.
Moreover, prior to the Defendant pleading guilty in open court, the Court made the decision to determine the admissibility of the crime-scene photographs when tendered for admission into evidence during the penalty phase proceeding. The Defendant then entered his pleas of guilty and indicated that he had read and understood his written plea agreement, which contained no promise that the photographs would be excluded. The Court has had the opportunity to observe the Defendant on the witness stand and believes that the Defendant is intelligent and fully understood the plea agreement and the discussions with his counsel concerning the admissibility of the crime-scene photographs.

(Emphasis supplied.)

Although Zakrzewski testified that he pled guilty to the three murder charges based solely on counsel’s promise that the photographs of the bodies of his wife and children would not. be introduced into evidence, both Koran and Killam testified that they in no way said anything to Za-krzewski that could have' been mistaken for such a promise and had in fact never successfully obtained suppression of all photos of a homicide victim. Further, Za-krzewski has expressly stated that he does not contend that either Koran or Killam testified falsely at the evidentiary hearing. Rather, Zakrzewski asks this Court to reverse the trial court’s findings on this issue based on his assertion that he is also a credible witness and that Koran and Kil-lam simply do not recall making the promise about the suppression of the photos.

“Findings on the credibility of evidence by a lower court are not overturned if supported by competent, substantial evidence.” Roberts v. State, 840 So.2d 962, 973 (Fla.2002). Here, the trial court not only found Killam’s and Koran’s testimony to be credible, but further found that Za-krzewski fully understood both the plea agreement and his discussions with counsel about the admissibility of the photographs. The trial court’s factual findings are supported by competent, substantial evidence presented at the hearing. The findings are also supported by the original trial record, which indicates that Zakrzew-ski was present when the trial court deferred ruling on the motion to suppress, just prior to Zakrzewski entering his pleas in open court. For all these reasons, we conclude that Zakrzewski has not demonstrated that his guilty pleas were involuntary, and we affirm the trial court’s denial of relief on this claim.

III. APPRENDI AND RING

In his last issue on appeal, Zakrzewski argues that Florida’s death penalty statute, section 921.141, Florida Statutes (2002), is unconstitutional pursuant to 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.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), this Court denied relief under Ring. Subsequently, this Court, has rejected postcon-viction challenges to section 921.141 based on Apprendi and Ring. See, e.g., Wright v. State, 857 So.2d 861, 867 (Fla. 2003); Jones v. State, 855 So.2d 611, 616 (Fla. 2003); Chandler v. State, 848 So.2d 1031, 1034 n. 4 (Fla.2003).

In addition, Zakrzewski’s guilty pleas in this case are equivalent to convictions on three counts of first-degree murder. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.”). Thus, the prior violent felony or capital felony conviction aggravator exempts this case from the requirement of jury findings on any fact necessary to render a defendant eligible for the death penalty. See Duest v. State, 855 So.2d 33, 52 (Fla.2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”), cert denied, — U.S. -, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003).

CONCLUSION

Based on the forgoing, we affirm the trial court’s order denying Zakrzewski’s motion for postconviction relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ„ concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I concur in the majority opinion in all respects with the sole exception of its discussion of the U.S. Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

      . The nonstatutory mitigators considered, found, and weighed by the trial court were: (1) the defendant is an exceptionally hard worker (significant weight); (2) the defendant was on the Dean's List in his third year of college (significant weight); (3) the defendant served in an exemplary manner in the United States Air Force (significant weight); (4); the defendant showed severe grief and remorse (substantial weight); (5) the defendant was a loving husband and father until the offense (substantial weight); (6) the defendant turned himself in (little weight); (7) the defendant pled guilty (little weight); (8) the defendant was under great stress due to work, college, child care, housework, and lack of sleep (little weight); (9) the defendant is a patient and humble man (little weight); (10) the defendant was raised without his natural father in his home (little weight); (11) the defendant had a lack of prior domestic relationships (little weight); (12) the defendant received little religious upbringing (little weight); (13) the defendant has embraced the Christian faith since the offense (little weight); (14) the defendant exhibited good behavior while hiding for an extended period of time under an assumed name (slight weight); (15) the defendant was a hyperactive child and was medicated on Ritalin (no weight); (16) the defendant has a long term adjustment disorder (no weight); (17) the defendant was suffering from a major depressive episode (no weight); (18) the defendant has potential for rehabilitation (no weight); (19) the defendant’s role in his marriage was passive in a union dominated by his wife (no weight); (20) the defendant was a loving and good son (no weight); (21) the defendant is intelligent (no weight); (22) the defendant is well thought of by friends, neighbors, and coworkers (no weight); (23) the defendant was impaired by alcohol at the time of the offense (no weight); and (24) the defendant is not a psychopath (no weight).

      . These were: (1) the trial court erred by finding HAC; (2) the trial court erred by finding CCP; (3) the death sentences were not proportionate in this case; (4) the trial court erred in overriding the jury’s recommendation of life for the murder of Anna; (5) the trial court erred in allowing prejudicial photographs of the victims to be admitted into evidence; (6) the trial court erred in permitting the State’s mental health expert to testify about philosopher Friedrich Nietzsche and his views on Christianity; (7) the trial court erred in permitting the State’s mental health expert to testify because the testimony did not rebut the testimony of Zakrzewski's mental health expert; (8) the trial court erred in failing to instruct the jury that Zakrzewski’s ability to understand his conduct was substantially impaired; and (9) the trial court erred in failing to instruct the jury on each of Zakrzewski’s nonstatutory mitigating factors. See Zakrzewski, 717 So.2d at 492.

      . Huff v. State, 622 So.2d 982, 983 (Fla.1993).

      . Zakrzewski withdrew his third claim, and the parties agreed that the Apprendi issue did not require an evidentiary hearing.

      . The State argues that Zakrzewski failed to adequately allege prejudice. However, Za-krzewski did assert in his motion for postcon-viction relief that had counsel informed him of his right to challenge the search of his home he would not have accepted counsel's advice to plead guilty.

      . Zakrzewski also claims that his pleas were involuntary due to defense counsel's ineffectiveness in failing to move for suppression of the evidence removed from his home. Having concluded that Zakrzewski failed to establish that counsel was ineffective in this regard, we reject this claim without further discussion.


author: KELLY, Judge.

text:
    Steve William ERMATINGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4738.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Steve Ermatinger appeals his conviction and sentence following the revocation of his community control and probation. We affirm in part and reverse in part.

Ermatinger was sentenced on August 27, 1998, pursuant to a plea agreement, to two years’ community control followed by three years’ probation for aggravated battery. On that same date, Ermatinger entered an open plea to felonious possession of a firearm, and after a hearing was sentenced to ten months’ incarceration followed by fourteen years’ probation. Both sentences were to run concurrent.

On October 16, 2000, Ermatinger was arrested for violation of community control based on an arrest affidavit filed by his probation officer. On October 31, 2000, his probation officer filed a second affidavit of violation of community control and an affidavit alleging that Ermatinger had violated several conditions of his probation. Following a hearing, the trial court found Ermatinger in violation of both his probation and community control and sentenced him to concurrent terms of sixty months’ incarceration on both counts.

Ermatinger argues that the trial court lacked jurisdiction to revoke his community control on the aggravated battery conviction because he had completed his two-year term of community control when the revocation process began. We agree. A trial court lacks jurisdiction to revoke probation for a violation that occurs within the period of probation “unless the revocation process is set in motion during the probationary period.” Hoffman v. State, 729 So.2d 421 (Fla. 1st DCA 1999). This same requirement applies to community control. Tyson v. State, 655 So.2d 214 (Fla. 1st DCA 1995). Ermatinger’s concurrent sentences on the felonious possession of a firearm and aggravated battery were imposed on August 27, 1998. Erma-tinger’s term of community control on the aggravated battery offense therefore expired on August 27, 2000. Because the revocation process did not begin until October, after Ermatinger’s period of community control expired, the trial court was without jurisdiction to revoke his community control for aggravated battery. See Morgan v. State, 757 So.2d 618 (Fla. 2d DCA 2000); Hoffman, 729 So.2d 421. Accordingly, we reverse and remand with directions that the affidavit alleging violations of community control on this offense be dismissed, that the order revoking Er-matinger’s community control be vacated, and that his sentence for violation of community control be vacated.

Ermatinger also argues that the trial court erred in finding that he violated conditions 1 and 22 of his probation for felonious possession of a firearm because any violations were caused by his mental illness and thus were not wilful. We disagree. Condition 1 of Ermatinger’s probation required that he file a monthly report. The affidavit of violation of probation alleged that Ermatinger failed to file the required report on October 3, 2000. Condition 22 prohibited Ermatinger from consuming alcohol. The affidavit of violation alleged that Ermatinger admitted to his probation officer that he consumed alcohol on September 13, 2000.

Expert testimony was introduced at the revocation hearing that the majority of Ermatinger’s problems related to his use of alcohol. This court has held that even an alcoholic must refrain from using alcohol when abstention is a required condition of probation. See Spry v. State, 750 So.2d 123 (Fla. 2d DCA 2000). Ermatinger admitted to consuming alcohol while on probation. We therefore affirm the revocation of his probation for violation of this condition. Failure to file one written report, standing alone, is generally insufficient to support revocation of probation. Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000). However, coupled with Ermatinger’s wilful violation of condition 22, we conclude that revocation based on violation of condition 1 was proper.

Affirmed in part, reversed in part, and remanded with directions.

NORTHCUTT and STRINGER, JJ, concur.


author: THOMPSON, J.

text:
    RELIANCE INSURANCE COMPANY, Appellant/Cross-Appellee, v. PRO-TECH CONDITIONING & HEATING, etc., Appellee/Cross-Appellant.
    Nos. 5D01-2998, 5D01-3433.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.
    Kimberly A. Ashby of Akerman, Senter-fitt & Eidson, P.A., Orlando, for Appellant/Cross-Appellee.
    Rosemary Hanna Hayes of Hayes & Associates, Orlando, for Appellee/Cross-Appellant.
   THOMPSON, J.

Reliance Insurance Company (“Reliance”) appeals a final judgment in favor of Pro-Tech Conditioning and Heating, Inc. (“Pro-Tech”). Reliance contends that the trial court erred by ordering a directed verdict in favor of Pro-Tech and awarding Pro-Tech attorney’s fees. Pro-Tech cross appeals arguing that the trial court abused its discretion in determining the amount of the attorney’s fees award.

In June 1999, T & G Constructors, Inc. (T & G) and Pro-Tech entered a subcontract under which Pro-Tech would install heating and air conditioning systems at a school owned by the Orange County Public School System (“owner”). The work plans required Pro-Tech to install air handler stands, and the specifications required the stands to have zinc-coated galvanized steel sub-bases and baked enamel finishes. The air handler stands were designed to support air handlers, which brought in outside air and were to be situated in closets.

Pro-Tech had been unable to find a source for the baked enamel stands and substituted a different type of stand. During the project, Pro-Tech received a complaint that the air stands were rusting. The owner believed that the stands were rusting because the specified baked enamel stands were not installed; Pro-Tech believed the stands were rusting because classroom doors were being left ajar, causing the air handlers to produce condensation.

Pro-Tech received a certificate of substantial completion on 1 February 2000 which was signed by all necessary parties except the owner. T & G refused to pay Pro-Tech the remaining balance owed for the project, so Pro-Tech attempted to secure the remaining balance through a payment bond issued to T & G by the surety company, Reliance. Reliance did not pay Pro-Tech the amount it claimed, and Pro-Tech sued Reliance. Reliance contended that Pro-Tech did not substantially perform because of the rusted air stands, and its affirmative defense was that the owner was entitled to a set-off.

At trial, in an attempt to introduce evidence of damages caused by the rusted stands, Reliance called Dale Michael Bradley, the owner’s facilities program director, to testify. Bradley testified that although Pro-Tech had completed the recommended treatment on the stands by cleaning the rust, priming, painting and adding mastic coating to the stands, the rust was bleeding through the mastic coating. The trial court did not allow Bradley to testify regarding the owner’s damages on the ground that Bradley had not been listed as an expert witness.

Because Reliance failed to provide evidence of the amount of a set-off, the court granted Pro-Tech’s motion for a directed verdict, and entered a judgment awarding Pro-Tech the balance owed on the contract. Reliance filed a motion for a new trial, and the motion for a new trial was denied. Pro-Tech also filed a motion for attorney’s fees and costs. After hearing arguments for Pro-Tech’s attorney’s fees, the trial court awarded Pro-Tech attorney’s fees, pursuant to section 255.05, Florida Statutes.

On appeal, Reliance argues that the trial court erred by directing a verdict in favor of Pro-Tech. We agree. Reliance attempted to introduce evidence of damages by calling Bradley, the owner’s facilities program director, to testify. Florida and other jurisdictions permit an owner to testify as to property damages and value. Furthermore, expert testimony is not required when a corporate representative is qualified to testify. See Casa de Alabanza v. Bus Service Inc., 669 So.2d 338, 339 (Fla. 3d DCA 1996) (holding that in a breach of contract case, the trial court erred in prohibiting a representative of appellant, a corporate entity, from testifying on behalf of the corporation, and rejecting contention that since appellant listed no expert witness, it should be precluded from offering any testimony regarding the defects in appellee’s work); see also Kish v. McDonald’s Corp., 564 So.2d 1177 (Fla. 4th DCA 1990) (finding that the owner could testify to the reduced value of her property); Bastian v. Laffin, 54 Md.App. 703, 460 A.2d 623, 631 (1983) (owner through her testimony-produced evidence of the repair cost as to certain items). Compare Horn v. Corkland, Corp., 518 So.2d 418 (Fla. 2d DCA 1988) (owner did not testify to any difference in value of property although under Florida law, an owner of property can testify as to his opinion of the value of the property).

The rule allowing an owner to testify regarding the value of his property is based on the owner’s presumed familiarity with the characteristics of the property, his knowledge or acquaintance with its uses and purposes, and his experience in dealing with it. First Interstate Development Corp. v. Ablanedo, 476 So.2d 692 (Fla. 5th DCA 1985); see also Bastian, 460 A.2d at 631 (the admissibility of an owner’s testimony of property values is not without limitations, and the owner’s competence to testify derives not from title, but rather from the fact that ordinarily, an owner knows the property intimately and is familiar with its value).

While an owner is qualified to testify as to the value of his property, officers of corporations do not qualify on the same basis. Mercury Marine Div. of Brunswick Corp. v. Boat Town U.S.A., Inc., 444 So.2d 88 (Fla. 4th DCA 1984). However, if the officer is qualified due to experience, management of corporate affairs, and his knowledge of relevant value, the officer is also a competent witness as to value. Mercury Mamie 444 So.2d at 90; see also Smith v. Potomac Elec. Power Co., 236 Md. 51, 202 A.2d 604, 609-610 (1964) (with respect to having the knowledge to testify as to value of property, the mere holding of corporate office is not enough, but the officer must have knowledge which in fact qualifies him). In the instant case, Bradley testified that his job as the owner’s program facilities director included meeting construction and roof replacement needs throughout the district. Because of Bradley’s knowledge and familiarity with managing construction affairs for the owner’s properties, Bradley should have been allowed to testify regarding the owner’s position and anticipated back charge.

The judgment in favor of Pro-Tech is reversed, and the case is remanded for a new trial in which the owner’s representative should be allowed to testify as to its damages. Because Pro-Tech is no longer the prevailing party pursuant to section 255.05(2)(a)2, Florida Statutes, Pro-Tech’s award of attorney’s fees is reversed.

REVERSED.

SAWAYA, C.J., and PETERSON, J„ concur.

      . Section 255.05(2)(a),2, Florida Statutes provides:
      In any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his or her attorney for trial and appeal or for arbitration, in an amount to be determined by the court....


text:
    Ralph STORY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5265.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Ralph Story appeals from his judgment and sentence for possession of cocaine. He raises eight issues on appeal. We find merit only in his contention that the trial court erred in imposing special conditions of probation without orally pronouncing them. His judgment and sentence are otherwise affirmed.

The portions of conditions 13 and 14 requiring Story to pay for alcohol and drug testing must be stricken. See Boyd v. State, 688 So.2d 959 (Fla. 2d DCA 1997) (striking special conditions of probation requiring the defendant to pay for drug and alcohol testing, evaluation, and treatment, because they were not orally announced at sentencing). Condition 15, which prohibits Story from consuming alcoholic beverages or visiting businesses where the main source of income is the sale of alcoholic beverages, must be also stricken. See Murphy v. State, 704 So.2d 1116 (Fla. 2d DCA 1998) (holding that special condition of probation prohibiting use and possession of alcohol and frequenting places where alcohol is the main source of business must be orally pronounced at sentencing). The special conditions cannot be reimposed. See Justice v. State, 674 So.2d 123, 126 (Fla.1996) (prohibiting imposition of stricken special conditions on resentenc-ing).

Affirmed as modified.

SILBERMAN and COVINGTON, JJ., Concur.


text:
    Anthony J. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2320.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Order Granting Certification Jan. 4, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order that rejected his argument that section 775.21(6), Fla. Stat. (2001), “The Florida Sexual Predators Act,” is unconstitutional and declared him to be a sexual predator. He argues that the trial court erred in its declaration because the statute fails to afford him procedural due process and im-permissibly intrudes on his privacy interests. This court has recently resolved those issues contrary to the defendant’s position. See Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003). We therefore affirm.

WARNER, MAY, JJ., and ARAMONY, SUSAN, Assoc. Judge, concur.

ON MOTION FOR CERTIFICATION

PER CURIAM.

We grant the defendant’s motion for certification. We certify that this decision directly and expressly conflicts with the Third District Court of Appeal’s decision in Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003) on the issue of the constitutionality of the Florida Sexual Predators Act (FSPA).

WARNER, MAY, JJ., and ARAMONY, SUSAN, Associate Judge, concur.


text:
    SERATECH, INC., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D03-4719.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2003.
    Katherine E. Giddings and William M. Furiow of Katz, Kutter, Alderman & Bryant, P.A., Tallahassee, for appellant.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, for appellee.
   PER CURIAM.

DISMISSED. See Rowell v. Florida Department of Law Enforcement, 700 So.2d 1242 (Fla. 2d DCA 1997).

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Micah D. HARRELL, Appellant, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, Appellee.
    No. 3D03-53.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing and Rehearing En Banc Denied Feb. 6, 2004.
    Nevel & Greenfield, David H. Nevel and John Greenfield, for appellant.
    Madelyn P. Schere, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

The appellant, Micah D. Harrell, appeals from a final order of The School Board of Miami-Dade County, Florida [School Board], terminating his professional service contract of employment and dismissing him. from his employment with the School Board. We affirm.

A review of the record indicates that the administrative law judge’s findings of fact were supported by competent substantial evidence, and therefore, the School Board properly accepted those findings as the facts in this case. § 120:68(7)(b), Fla. Stat. (2002). Moreover, those facts support the termination of Harrell’s professional service contract and the dismissal of his employment with the School Board. Finally, contrary to Harrell’s contention, there were no due process violations because Harrell was “informed with reasonable certainty of the nature of the charges against him, ha[d] a reasonable opportunity to defend himself, and the proceedings [were] conducted in a fair and impartial manner.” Powell v. Board of Pub. Instruction of Levy County, 229 So.2d 308, 311 (Fla. 1st DCA 1969). Therefore, we affirm the final order of the School Board.

Affirmed.

      . Harrell’s termination was as a result of evaluations utilizing the Professional Assessment and Comprehension Evaluation System [PACES], PACES was collectively bargained and supported by both the School Board and The United Teachers of Dade.


text:
    Edward D. FOREMAN, individually, and Edward D. Foreman, P.A., Petitioner, v. Toni T. BEHR, Respondent.
    No. 2D03-1533.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.

      Jack Helinger, St. Petersburg, for Petitioner.
    Michael C. Addison of Addison & Delano, P.A., Tampa, for Respondent.
   KELLY, Judge.

Edward D. Foreman petitions for a writ of certiorari, requesting that this court quash the trial court’s order requiring him to turn over files from his representation of Toni Behr in a prior divorce proceeding. The trial court’s March 6, 2003, order requires Foreman to turn over Behr’s files pursuant to a discovery request in a legal malpractice action against Foreman, despite his valid retaining lien on the file. Because Foreman has no adequate remedy on appeal and will be irreparably harmed if he were to lose his lien, we grant the petition and quash the order.

Behr originally retained Foreman in May 1997 when her husband advised her that he wished to terminate their marriage. Foreman represented Behr in the dissolution action until early September 1998. At that time, Behr learned that marital property in a securities account titled in her husband’s name had been lost as a result of investments that were made in the account. Because Behr felt that Foreman had done nothing to attempt to protect her interest in the securities account during the fifteen months he had represented her, and for various other reasons, she filed a malpractice action against him. In December 1998, Foreman presented Behr with an invoice seeking payment of the balance of $7222.50 for work done in July, August, and September.

During discovery in the malpractice action, Behr sought production of Foreman’s file from the dissolution action. In yet another action, Foreman sought and received a declaration that he' had a valid retaining lien on Behr’s file. Claiming that the retaining lien protected him from having to produce the office file, Foreman moved to stay discovery. In response, Behr moved to compel a response to her outstanding discovery, asking the court to order the release of Foreman’s office file despite his retaining lien. Following a hearing, the trial court granted Behr’s motion.

In his petition, Foreman argues that his valid retaining lien should not be disregarded simply because a client sought discovery in a suit against him. We agree. An attorney’s retaining lien is a possessory interest in a client’s papers and files that the attorney holds until his fee has been paid. Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60 (Fla. 4th DCA 1996). Any requirement to produce the file would destroy the effectiveness of the lien. Wintter v. Fabber, 618 So.2d 375 (Fla. 4th DCA 1993). When a tidal court is asked to order disclosure of an attorney’s file that is subject to a valid retaining lien, it should not order the attorney to turn over the file until it has provided for the client’s payment of delinquent fees or arranged for the client to post adequate security for the outstanding balance due. Andrew Hall & Assocs., 679 So.2d at 61.

Only in rare cases will the files be released without payment or the furnishing of adequate security, such as when the lawyer’s misconduct caused hi's withdrawal or when the client has an urgent need for the file to defend a criminal prosecution and lacks the means to pay the fee or post a bond. Id. at 377. Courts have also found an exception where the attorney has. filed a counterclaim or an independent action seeking to collect the fee. See Fingar v. Braun & May Realty, Inc., 807 So.2d 202 (Fla., 4th DCA 2002) (holding that an attorney who brought an action against his client for fees was not entitled to the enforcement of a retaining lien to avoid discovery of the client’s files).

None of these exceptions are applicable in this case. Foreman was fired, he did not withdraw, and he has not sought to collect his fee through the courts. Nor did Behr demonstrate any urgent need for documents. On the contrary, Behr acknowledges that she does not need the file in connection with the dissolution litigation, which is still pending, and that she already has copies of the pleadings filed in that case. She wants the file to determine whether Foreman possesses any documents that she does, not already have. Accordingly, until such time that the fee dispute is settled, Foreman is entitled either to retain Behr’s files, to receive payment for services rendered, or to receive a bond to protect his interest.

Because the trial court departed from the essential requirements of the law in ordering Foreman to comply with discovery without consideration of the retaining lien, we grant the petition for certiorari and quash the trial court’s March 6, 2003, order. ■ ,

Petition granted.

NORTHCUTT and DAVIS, JJ., Concur.