source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Joel DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. SC01-278.
    Supreme Court of Florida.
    Sept. 11, 2003.
    Rehearing Denied Nov. 18, 2003.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

We review a judgment and sentence of death after the conviction of first-degree murder of Joel Diaz. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Diaz’s conviction and sentence of death.

I.

Diaz and Lissa Shaw dated for about two years. During the second year of their relationship, they lived in Diaz’s home with Lissa’s young daughter. The relationship proved “rocky,” however, and around August 1997 Lissa moved in with her parents, Charles and Barbara Shaw. After she moved out, Diaz tried to see her, but she refused all contact. The two last spoke to each other in September 1997.

On October 6, Diaz purchased a Rossi .38 special revolver from a local pawn shop. He was eager to buy the gun, but because of a mandatory three-day waiting period, could not take it with him. Three days later, Diaz returned to the pawn shop to retrieve the gun, but it could not be released to him because his background check remained pending. Diaz was irritated, and continued to call the shop nearly every day until he was cleared. On October 16, Diaz finally was allowed to take the gun.

On October 27, Diaz asked his brother Jose, who was living with him at the time, for a ride to a friend’s house the next morning. Sometime that night or early the next morning, Diaz wrote a letter to his brother, which the police later discovered in his bedroom. It reads:

Jose [f]irst I want to apologize for using you or to lieing to you to take me where you did I felt so bad but there was no other way. Theres no way to explain what I have to do but I have to confront the woman who betrayed me and ask her why because not knowing is literly [sic] killing me. What happens then is up to her.
If what happen is what I predict than I want you to tell our family that I love them so much. Believe me I regret having to do this and dieing knowing I broke my moms heart and my makes it even harder but I cant go on like this it’s to much pain. Well I guess that all theres to say I love you all.
Joel
P.S. Someone let my dad know just because we werent close doesn’t mean I don’t love him because I do.

At 5:30 a.m. on October 28, Diaz’s brother and his brother’s girlfriend drove him to the entrance of the Cross Creek Estates subdivision, where the Shaws lived. Diaz carried his new gun, which was loaded, and replacement ammunition in his pocket. Diaz walked to the Shaws’ house and waited outside for about ten minutes.

At 6:30 a.m., Lissa Shaw left for work. She entered her car, which was parked in the garage, started the engine, and remotely opened the garage door. She saw someone slip under the garage door, and when she turned, Diaz stood at her window, pointing the gun at her head. He told her to get out of the car. She pleaded with him not to hurt her. When she saw that “the situation was not going anywhere,” she told him, “Okay, okay, hold on a second, let me get my stuff,” and leaned down as if retrieving personal items. She then shoved the gear into reverse and stepped on the gas pedal. Diaz started shooting. Lissa heard three shots, but did not realize she had been hit. As she continued backing out, the car struck an island behind the driveway. She then put the car into forward drive. As she drove away, she saw Diaz in the front yard pointing the gun at her father, Charles Shaw. Charles was about five feet from Diaz, pointing and walking toward him. Lissa drove herself to the hospital where it was discovered she had been shot in the neck and shoulder.

Charles and Diaz then had some sort of confrontation in the front yard and an altercation in the garage, resulting in Diaz chasing Charles into the master bedroom where Barbara was lying in bed. A quadriplegic, Barbara could not move from the bed.

As the two men moved through the house, Barbara heard Charles saying, “Calm down, put it down, come on, calm down, take it easy.” Barbara was able to roll back to see Diaz standing in the bedroom with a gun. He was standing on one side of a chest of drawers, closer to the door, while Charles was standing on the other side of the chest, closer to the bathroom. Charles talked to Diaz, telling him to calm down and put down the gun. Diaz held the gun with two hands, pointing it straight at Charles, about six to eight inches from Charles’s chest. Diaz pulled the trigger, but the gun, out of ammunition, only clicked. Charles visibly relaxed, but Diaz reloaded the gun. When Charles realized Diaz was reloading, he ran into the bathroom. Diaz followed. As Charles turned to face him, Diaz fired three shots. Charles’s knees buckled, and he grabbed his midsection and fell face first to the floor.

Diaz went back into the bedroom and stood beside Barbara, holding the gun. Barbara screamed, “Why did you do this?” Diaz answered that Charles deserved to die. He stood in the bedroom from 30 seconds to a minute, then returned to the bathroom, bent over Charles’s body, extended his right arm, and shot Charles again. He then moved his arm left, which Barbara judged to be toward Charles’s head, and shot again. Diaz returned to the bedroom and, according to Barbara, said, “If that bitch of a daughter of yours, if I could have got her, I wouldn’t have had to kill your husband.”

Diaz remained in the house between 45 minutes and an hour. He spent some of this time talking to Barbara in the bedroom, where he passed the gun from hand to hand and unloaded and loaded the gun about three or four times. He remained in the house until the police arrived and arrested him.

The jury found Diaz guilty of the first-degree murder of Charles Shaw, the attempted first-degree murder of Lissa Shaw, and aggravated assault with a firearm on the neighbor. After penalty phase proceedings, the jury recommended a sentence of death by a vote of nine to three. After a Spencer hearing, the trial court found three aggravating circumstances and five statutory mitigating circumstances, and sentenced Diaz to death.

Diaz raises three issues on appeal: (1) whether the trial court erred in finding and instructing the jury on the HAC aggravating factor; (2) whether the trial court erred in finding and instructing the jury on the CCP aggravating factor; and (3) whether the death sentence is disproportionate. Although Diaz does not contest the sufficiency of the evidence for his conviction of first-degree murder, we must nevertheless independently determine whether the evidence is sufficient. See Brown v. State, 721 So.2d 274, 277 (Fla.1998); Fla. R.App. P. 9.140(h). Based on our review, we find that there is competent, substantial evidence to support the verdict. We have outlined that evidence in detail above.

II.

Diaz first argues that the trial court erred in finding and instructing the jury on the HAC aggravating factor. When evaluating claims alleging error in the application of aggravating factors, this Court does not reweigh the evidence to determine whether the State proved each factor beyond a reasonable doubt. See Alston v. State, 723 So.2d 148, 160 (Fla.1998). Rather, we must “determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Id. (quoting Willacy v. State, 696 So.2d 693, 695 (Fla.1997)).

In determining the circumstances in which the HAC aggravating factor is intended to apply, we must remember the genesis for this statutory aggravating factor, as well as all other aggravating factors found in Florida’s death penalty statute. See § 921.141(5), Fla. Stat. (2001). In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and subsequent decisions, the United States Supreme Court declared unconstitutional the death penalty statutes existing in most states, including Florida. The Supreme Court held that the death penalty in those states, by leaving too much discretion to the individual judge in deciding whether to impose the death penalty, constituted cruel and unusual punishment under the Eighth Amendment. Id. at 239-40, 92 S.Ct. 2726. In reaction, many states, including Florida, amended their statutes to include certain “aggravating factors” that would distinguish between routine murders (if any murder may be called routine) and those exhibiting a heightened sense of depravity, for which a sentence of death would be appropriate.

The statutory provision listing the HAC aggravating factor provides that for this factor to apply, the capital felony must be “especially heinous, atrocious, or cruel.” § 921.141(5)(h), Fla. Stat. (1997) (emphasis added). See also Amoros v. State, 531 So.2d 1256, 1260 (Fla.1988) (“First-degree murder is a heinous crime; however, this statutory aggravating circumstance requires the incident to be ‘especially heinous, atrocious, and cruel [sic].’ ”); Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (“It is apparent that all killings are atrocious.... Still, we believe that the Legislature intended something ‘especially’ heinous, atrocious, or cruel when it authorized the death penalty for first degree murder.”). Recognizing that all murders, by their very nature, are in some way either heinous, or atrocious, or cruel, this provision is designed to identify those murders that, because of then-heightened depravity, deserve imposition of a death sentence. See Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (explaining that the aggravating circumstance “may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder”). As we stated in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), just months after the Florida Legislature amended the death penalty statute to conform with Furman and its progeny:

It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

We therefore have held that for this factor to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim. Buckner v. State, 714 So.2d 384, 390 (Fla.1998); Hartley v. State, 686 So.2d 1316, 1323 (Fla.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997).

We have consistently held that instantaneous or near instantaneous deaths by gunshot, unaccompanied by additional acts to mentally or physically torture the victim, are not especially heinous, atrocious, or cruel. See Rimmer v. State, 825 So.2d 304, 327-28 (Fla.2002) (finding that evidence did not support HAC where the record did not reveal that the defendant tortured the victims or subjected them to pain and suffering), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002); Donaldson v. State, 722 So.2d 177, 186-87 (Fla.1998) (striking HAC where the defendant forced the victims into a house at gunpoint and, along with accomplices, interrogated them for several hours before handing the gun to an accomplice to shoot the victims); Ferrell v. State, 686 So.2d 1324, 1330 (Fla.1996) (“Execution-style killings are not generally HAC unless the state has presented other evidence to show some physical or mental torture of the victim.”); Robinson v. State, 574 So.2d 108, 112 (Fla.1991) (holding that the trial court erred in finding HAC because the fatal shot to the victim “was not accompanied by additional acts setting it apart from the norm of capital felonies, and there was no evidence that it was committed ‘to cause the victim unnecessary and prolonged suffering’ ”). In other words, “a murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is as a matter of law not [especially] heinous, atrocious, or cruel.” Lewis v. State, 398 So.2d 432, 438 (Fla.1981).

In this case, competent substantial evidence does not support a finding that this factor applies. We first note that portions of the sentencing order finding HAC are not supported by competent substantial evidence. The sentencing order repeatedly states that Diaz “slowly reloaded” the revolver as the victim retreated into the bathroom. The trial testimony, however, indicated simply that Diaz reloaded the gun while the victim ran into the bathroom, not that he did so “slowly.”

More problematic is the trial court’s characterization of the medical examiner’s testimony. The trial court found that the “first three shots to the abdomen and calf were not immediately fatal and were survivable,” and the medical examiner “stated that the final two shots at Mr. Shaw were to the upper chest and the back of the head.” These findings are not supported in the record. The medical examiner, Dr. Huser, described five gunshot wounds, but could not determine their sequence. Dr. Huser did not state that the first three shots were to the abdomen and calf, or that the final two shots were to the upper chest and the back of the head.

This Court has struck the HAC aggra-vator in substantially similar cases where no evidence showed that the defendant intended to cause the victim unnecessary and prolonged suffering. For example, in Bonifay n State, 626 So.2d 1310 (Fla.1993), the defendant and another man each shot the victim once in the body from outside the store where the victim was working. The defendant and his accomplice then entered the store and broke open cash boxes. During this time the victim was lying on the floor begging for his life and talking about his wife and children. The defendant told the victim to shut up and fatally shot him twice in the head. We found that these facts did not support the HAC aggravator, noting that “[t]he fact that the victim begged for his life or that there were multiple gunshots is an inadequate basis to find [HAC] absent evidence that Bonifay intended to cause the victim unnecessary and prolonged suffering.” Id. at 1313. See also Buckner, 714 So.2d at 390 (concluding that the trial court erred in finding HAC because the entire episode took only a few minutes and no evidence reflected that the defendant intended to subject the victim to any prolonged or torturous suffering); Hartley, 686 So.2d at 1323 (rejecting a finding of HAC where the medical examiner could not determine the order in which the shots had been fired, no evidence showed that the defendant deliberately shot the victim to cause him unnecessary suffering, and the evidence reflected that the murder was carried out quickly); Kearse v. State, 662 So.2d 677, 686 (Fla.1995) (rejecting HAC where the victim sustained extensive injuries from numerous gunshot wounds because no evidence showed that the defendant intended to cause the victim unnecessary and prolonged suffering); Wickham v. State, 593 So.2d 191, 192 (Fla.1991) (finding that the facts did not support HAC where the defendant shot the victim in the chest, the victim pled for his life, and the defendant then shot victim twice in the head). We have also held that the mere act of reloading a gun does not justify a finding of HAC. See Hamilton v. State, 678 So.2d 1228, 1232 (Fla.1996) (noting the fact that the gun was reloaded does not, without more, establish an intent to inflict a high degree of pain or otherwise torture the victim); Clark v. State, 609 So.2d 513, 514 (Fla.1992) (“The fact that it took more than one shot to kill this victim does not set this crime apart from the norm of capital felonies, and there is no indication that the crime was committed in such a manner as to cause unnecessary and prolonged suffering to the victim.”).

Here, the murder was carried out quickly, the medical examiner could not determine the order in which the shots had been fired, and the fact that the gun was reloaded does not, without more, establish an intent to inflict a high degree of pain or otherwise torture the victim. Therefore, we conclude that under the particular circumstances of this case the trial court erred in finding the HAC aggravating factor. We find this error harmless, however, after consideration of the two remaining aggravating circumstances and the five mitigating circumstances in this case. See Hill v. State, 643 So.2d 1071, 1073 (Fla.1994) (“When this court strikes one or more aggravating circumstances relied upon by a trial judge in sentencing a defendant to death, we may conduct a harmless error analysis based on what the sen-tencer actually found in determining whether the sentence of death is still appropriate.”).

III.

Diaz next argues that the trial court erred in finding and instructing the jury on the CCP aggravating factor. Again, we note that when evaluating claims alleging error in the application of aggravators, this Court does not reweigh evidence to determine whether the State proved each factor beyond a reasonable doubt. See Alston, 723 So.2d at 160. Rather, our function simply is “to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Id. (quoting Willacy, 696 So.2d at 695).

To establish CCP, the evidence must show “that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), ... that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), ... that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.” Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (citations omitted). Diaz concedes the fourth prong.

A.

Diaz first argues the trial court applied the wrong rule of law by using, and by allowing the jury to use, the theory of transferred intent to support this aggravator. We disagree. We addressed a similar issue in Provenzano v. State, 497 So.2d 1177 (Fla.1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987). In Provenzano, the defendant planned to kill two police officers who had arrested him for disorderly conduct. Armed with three loaded guns, Provenza-no went to the courthouse for his trial. A bailiff was instructed to search him, but when Provenzano reached into his pocket, the bailiff started to grab him and Proven-zano shot the bailiff in the face. Provenza-no then chased and fired at least two shots at a corrections officer. Hearing the shooting, a bailiff from an adjacent courtroom heard the shots and ran into the hallway. Provenzano shot and killed him. Id. at 1180. On appeal, Provenzano contended that the CCP factor did not apply because proof that he planned to kill the police officers who had arrested him was irrelevant to finding enhanced premeditation to kill the bailiff. We disagreed, finding that the heightened premeditation necessary for this circumstance “does not have to be directed toward the specific victim. Rather, as the statute indicates, if the murder was committed in a manner that was cold and calculated, the aggravating circumstance of heightened premeditation is applicable.” Id. at 1183.

Similarly, in Sweet v. State, 624 So.2d 1138 (Fla.1993), the defendant argued that the trial court erred in finding CCP where the victim was not the subject of the planning. In affirming the trial court’s finding, we noted that “the key to this factor is the level of preparation, not the success or failure of the plan, and we therefore reject Sweet’s argument that because there were survivors of the shooting this aggravator is not applicable.” Id. at 1142. See also Howell v. State, 707 So.2d 674, 682 (Fla.1998) (rejecting the defendant’s challenge to the CCP aggravator because the heightened premeditation necessary for CCP need not be directed toward the specific victim); Bell v. State, 699 So.2d 674, 677-78 (Fla.1997) (finding CCP valid although the victims were not the subjects of the planning because the heightened premeditation necessary for a CCP finding does not have to be directed toward the specific victim). Because it is clear that the heightened premeditation necessary to find the CCP factor need not be directed toward the specific victim, we find that the trial court did not err by using the theory of transferred intent in this case.

B.

Diaz also argues the trial court erred in finding the murder to be cold and calculated. We find that competent substantial evidence supports the trial court’s finding.

To satisfy the “cold” prong of CCP, the killing must be the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage. Jackson, 648 So.2d at 89 (citing Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992)). This element generally has been found absent only for “heated” murders of passion, in which the loss of emotional control is evident from the facts. See Walls v. State, 641 So.2d 381, 387-88 (Fla.1994). The “calculated” prong requires “that the defendant had a careful plan or prearranged design to commit murder before the fatal incident.” Jackson, 648 So.2d at 89.

The events that ended in Mr. Shaw’s murder demonstrate both the cold and calculated prongs of CCP. We disagree with Diaz’s argument that this incident was a heated murder of passion committed by a young man under intense emotional pressure. The murder occurred more than one month after Diaz had last spoken with Lissa. The attenuation between this contact and the murder shows that Diaz’s decision to confront Lissa on October 28 was not prompted by a sudden, emotional reaction to the status of their relationship. Also, Diaz purchased and took possession of a firearm with ammunition several days before the murder. He outlined his plan in a letter to his brother the previous night, stating that he had to “confront the woman who betrayed me and ask her why because not knowing is literaly [sic] killing me.” He then took his gun and several rounds of replacement ammunition to the Shaws’ house. These facts show that Diaz calculated his actions long before the morning of October 28. They also demonstrate why we disagree with Diaz’s assertion that the altercation with the victim in the garage negates CCP. Circumstantial evidence of an altercation between Diaz and the victim is simply not enough to vitiate CCP in light of the ample evidence of Diaz’s calculated planning on the days preceding the murder.

Moreover, Diaz was aware of Lissa’s schedule. Knowing that she left her parents’ house at 6:30 a.m. for work, he asked his brother for a ride to a friend’s house at 5:30 that morning. He then waited outside the house until the garage door opened, slipped under the door as it was going up, and confronted Lissa as she sat in her car. Finally, Diaz’s statement to Barbara Shaw that “if that bitch of a daughter of yours, if I could have got her, I wouldn’t have had to kill your husband” is evidence of a calculated plan to kill Lissa Shaw. Taken together, this evidence shows a careful plan or prearranged design to commit murder. See, e.g., Swafford v. State, 533 So.2d 270 (Fla.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989) (CCP murder can be indicated by the circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course).

Our decision in Amoros v. State, 531 So.2d 1256 (Fla.1988), on which Diaz relies, is distinguishable. In Amoros, we found insufficient evidence to establish CCP because the defendant did not know the victim and shot him within two minutes after entering the premises for the purpose of confronting and probably shooting his former girlfriend. Id. at 1260. This Court found that the only evidence of a plan was Amoros’s threat to his former girlfriend, and no evidence established that Amoros knew the victim when he entered the apartment or was aware that the victim was residing with his former girlfriend. Id. Here, there was ample evidence of Diaz’s plan and evidence that Diaz knew the victim resided in the house.

IV.

Finally, Diaz argues that his death sentence is disproportionate. Due to the uniqueness and finality of death, this Court addresses the propriety of all death sentences in a proportionality review. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). In deciding whether death is a proportionate penalty and to ensure uniformity in the imposition of the death sentence, this Court reviews and considers all the circumstances in a case in relation to other capital cases. See Johnson v. State, 720 So.2d 232, 238 (Fla.1998); Urbin v. State, 714 So.2d 411, 416-17 (Fla.1998). The death penalty is reserved for cases where the most aggravating and the least mitigating circumstances exist. See Kramer v. State, 619 So.2d 274, 278 (Fla.1993). When compared to other decisions of this Court, the death sentence in this case is proportionate.

Although we have rejected the trial court’s finding of HAC, two valid aggravators remain: (1) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; and (2) the defendant was previously convicted of another capital felony or of a felony involving use or threat of violence to the person. As we noted in Dixon, “When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances.... ” 283 So.2d at 9. CCP is one of the “most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999). The trial court also found five statutory mitigating circumstances. See supra note 4.

Diaz argues that this Court has consistently found death sentences disproportionate when the heated and emotional nature of the case negates cold calculation. Diaz cites cases holding that, in some circumstances, “the fact that the ... killing arose from a domestic dispute tends to negate cold, calculated premeditation.” Santos v. State, 591 So.2d 160, 162 (Fla.1991). We already have found, however, that this murder was cold and calculated. This case is not properly characterized as a “heated, domestic confrontation,” or even as an incident resulting from a domestic dispute. At the time of the murder, Diaz and Lissa Shaw no longer lived together, were not involved in a relationship, and in fact, had not spoken for over a month. Moreover, Diaz planned to murder Lissa with no purported domestic provocation, such as a new love interest in Lissa’s life. Simply because Diaz and Lissa Shaw once had a domestic relationship does not transform this case into a “domestic dispute.”

Even if this case were properly characterized as a domestic dispute, we have upheld the imposition of the death penalty in such circumstances. See, e.g., Pope v. State, 679 So.2d 710 (Fla.1996) (finding defendant’s death sentence proportionate for beating and stabbing death of girlfriend where there were two aggravators, both statutory mental mitigators, and several nonstatutory mitigators).

After thoroughly reviewing the circumstances in this case and comparing them to other cases, we find Diaz’s death sentence proportionate. See, e.g., Shellito v. State, 701 So.2d 837, 845 (Fla.1997) (concluding death sentence proportional in a shooting death where trial court properly found two aggravators — prior violent felony conviction and pecuniary gain/commission during a robbery — and nonstatutory mitigation consisting of alcohol abuse, a mildly abusive childhood, difficulty reading, and a learning disability); Hudson v. State, 538 So.2d 829, 831 (Fla.1989) (upholding death sentence where defendant entered his ex-girlfriend’s house two months after breaking up with her and killed her roommate, and the trial court properly found two aggravators — previous conviction of a violent felony and murder committed during an armed burglary — and three statutory mitigators).

V.

Based on the foregoing, we affirm Diaz’s conviction for the first-degree murder of Charles Shaw and the imposition of a sentence of death.

It is so ordered.

WELLS, QUINCE, and CANTERO, JJ., concur.

LEWIS, J., concurs as to the conviction and concurs in result only as to the sentence.

PARIENTE, J., concurs as to the conviction and dissents as to the sentence with an opinion, in which ANSTEAD, C.J., and SHAW, Senior Justice, concur.

PARIENTE, J.,

concurring as to the conviction and dissenting as to the sentence.

I concur in the affirmance of the conviction. I also agree that the HAC aggravator should be stricken, and thus concur in Part II of the majority opinion. However, I dissent from the affirmance of the death sentence for two reasons. First, I cannot conclude that the trial court’s reliance on the invalid HAC aggravator is harmless error beyond a reasonable doubt. Second, I disagree with the Court’s determination in Part III of the majority opinion that competent, substantial evidence supports the CCP aggravator under the theory of transferred intent.

HAC AND HARMFUL ERROR

I do not agree that after striking the HAC aggravator, on which the jury was instructed and which the trial court found, this Court can state beyond a reasonable doubt that the error did not contribute to the imposition of the death penalty. Under Hill v. State, 643 So.2d 1071, 1073 (Fla.1994), which is cited by the majority, error in finding an impermissible aggravator can only be harmless beyond a reasonable doubt if there is “no reasonable possibility” that the evidence presented in mitigation is sufficient to outweigh the remaining aggravators.

In this case, there was a nine-to-three vote on the advisory sentence and substantial mitigation, including the finding that the murder was committed while the defendant was under the influence of extreme emotional disturbance, the age of the defendant at the time of the offense, and the defendant’s lack of a significant history of prior criminal activity. Thus, the erroneous submission of the weighty aggravator of HAC to the jury and the trial court’s reliance on HAC in the sentencing order cannot be harmless beyond a reasonable doubt in their effect on the jury recommendation and imposition of the death penalty. Consequently, I believe that striking the HAC aggravator alone requires that we reverse Diaz’s sentence and remand for a new penalty phase.

CCP AND TRANSFERRED INTENT

I would also strike the CCP aggravator because the doctrine of transferred intent, relied on by the majority, is not applicable in this case. Diaz clearly acted with heightened premeditation in planning the killing of his former girlfriend, Lissa Shaw, and seriously wounded her in committing attempted murder as she fled from Diaz when he confronted her at her parents’ home. The murder of her father, Charles Shaw, occurred some minutes later, after a confrontation that began in the yard and then moved to the garage and a bedroom of the Shaw home.

Diaz did not shoot Charles Shaw in the course of the attempted murder of Lissa. Diaz’s first attempt to shoot Charles failed because his gun was out of ammunition. Diaz reloaded his weapon, followed Charles into the bathroom of the house, and shot him three times. These actions provide ample evidence of a killing upon reflection that establishes the element of premeditation in the first-degree murder of Charles Shaw independently from the heightened premeditation supporting the attempted murder of Lissa Shaw. In other words, there is no need in this case to rely on Diaz’s premeditated intent to kill Lissa as a basis for finding a premeditated intent to kill Charles.

In my view, the statutory provision defining CCP and the standard jury instruction thereon require that the heightened premeditation supporting CCP arise from the element of “premeditated design” supporting the conviction of first-degree murder under section 782.04(l)(a)l, Florida Statutes (1997). Section 921.141(5)(i), Florida Statutes (1997), defines the CCP aggravator as follows:

The capital felony was a homicide and was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification.

The standard jury instruction on CCP, given in this case, provides:

[As I have previously defined for you] a killing is “premeditated” if it occurs after the defendant consciously decides to kill. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing. However, in order for this aggravating circumstance to apply, a heightened level of premeditation, demonstrated by a substantial period of reflection, is required.

Fla. Std. Jury Inst. (Crim.) 7.11. Under both the statutory provision and the jury instruction, the premeditated intent supporting the CCP aggravator is the same premeditation underlying the murder conviction, raised to a higher level.

In my view, the murder of Charles Shaw does not meet the definition of CCP because it arose from a separate premeditated intent fueled by the defendant’s failed attempt to either reconcile with or kill Lissa Shaw, rather than the heightened premeditation that would have supported CCP had Diaz succeeded in killing Lissa. Precedent in which we have approved a CCP finding based on transferred intent is consistent with this view.

In Provenzano v. State, 497 So.2d 1177 (Fla.1986), the defendant killed a bailiff in a shooting spree when another bailiff attempted to stop Provenzano from reaching into his pocket for a weapon he had brought into a courtroom to effectuate his plan to kill the officers who had arrested him. This Court recognized that the facts did not fit the usual scenario for transferred intent, such as “when a defendant aims and shoots at A intending to kill him but instead misses and kills B.” Id. at 1180. However, we held that the transferred intent doctrine supported the first-degree murder conviction because the premeditated design to kill the two officers “directly resulted in the death of another human being.” Id. at 1181. In approving the finding of CCP based on the same evidence, we stated:

Heightened premeditation necessary for this circumstance does not have to be directed toward the specific victim. Rather, as the statute indicates, if the murder was committed in a manner that was cold and calculated, the aggravating circumstance of heightened premeditation is applicable. (Emphasis supplied.) The facts herein indicate that the manner in which Provenzano effectuated his design of death was cold, calculated and premeditated beyond a reasonable doubt.

Id. at 1183. In contrast, in this case the murder of Charles Shaw resulted indirectly from the premeditated design to kill Lissa, and was not committed in a calculated manner.

Other cases in which we have approved a CCP finding are similarly distinguishable in that they involved a single act or course of conduct directly harming an unintended victim. In Sweet v. State, 624 So.2d 1138, 1142 (Fla.1993), the defendant shot and wounded Cofer, his intended victim, and killed a neighbor while both were trying to escape an apartment Sweet was attempting to enter. This Court rejected Sweet’s challenge to the CCP aggravator on grounds that the person he killed was not the subject of his planning, and stated: “Sweet was probably surprised by the presence of Cofer’s neighbors, and planning is not the equivalent of shooting skill.” Id. at 1142. In Howell v. State, 707 So.2d 674 (Fla.1998), this Court approved a CCP finding on evidence showing that a bomb contained in a microwave oven, which was intended for a different victim, killed a Florida Highway Patrol trooper during a roadside investigation. Finally, Bell v. State, 699 So.2d 674 (Fla.1997), involved a retribution killing of the wrong person in a case of mistaken identity-

Unlike these cases, the original murderous intent in this case did not directly result in the death of another human being. As reflected in the majority opinion, after Diaz and Charles Shaw confronted one another in the yard and garage, Diaz chased Charles into the master bedroom, pointed the gun at him and pulled the trigger, reloaded the gun after it did not fire, followed Charles into the bathroom, shot him three times, and then, after pausing thirty seconds to a minute, shot him twice more, including once in the head. See majority op. at 964. These facts demonstrate a premeditated intent that was separate from the failed attempt to kill Lissa Shaw, and that did not reach the level of heightened premeditation. Nor, contrary to the conclusion in the majority opinion, was the killing committed in a manner that can be deemed calculated. By his own statement to the victim’s wife at the time of the murder, Diaz decided to kill Charles Shaw only because his attempt to murder Shaw’s daughter failed. See majority op. at 964. While Diaz may have calculated the murder of Lissa, there is no evidence that he calculated the murder of Charles. Cf. Amoros v. State, 531 So.2d 1256, 1261 (Fla.1988) (finding insufficient evidence that the defendant’s plan to kill his former girlfriend encompassed her housemate).

Consistent with our precedent, the CCP finding should comport with the purpose of the transferred intent rule: “to hold a defendant criminally liable to the full extent of his or her criminal culpability.” State v. Fekete, 120 N.M. 290, 901 P.2d 708, 714 (N.M.1995). However, in this case the CCP determination holds Diaz fully responsible in his lolling of Charles for his heightened premeditation in the attempted murder of Lissa, beyond the full extent of his criminal culpability. As stated in Mordica v. State, 618 So.2d 301, 304 (Fla. 1st DCA 1993), “[t]he doctrine of transferred intent, by definition, operates to transfer the defendant’s intent as to the intended victim to the unintended victim, and nothing more.” In this case, intent transfers as to the aggravator but not as to the element of premeditation supporting the conviction of first-degree murder. In my view, Diaz’s conviction for the murder of Charles rests on legally sufficient evidence of premeditation in the confrontation between the two men after Lissa left the scene, whereas the heightened premeditation necessary to establish CCP requires reliance on evidence of a premeditated design to kill Lissa, which culminated in her attempted murder. In approving, for purposes of sentence aggravation, the transfer of an intent that was unnecessary to prove the underlying crime, the majority employs the transferred intent doctrine in a manner inconsistent with its purpose. Therefore, I would strike the CCP aggravator.

Invalidation of the HAC and CCP aggravating factors in this case leaves only the single aggravating factor of a prior violent felony conviction, resting on the attempted murder of Lissa and the burglary of the Shaws’ home. In light of the substantial mitigation found by the trial court, I cannot conclude that the death penalty is proportionate to other single-aggravator cases in which we have affirmed sentences of death. As a general rule, this Court affirms death sentences based on a single aggravator either where there is little or nothing in mitigation, or where a prior murder was involved. See Almeida v. State, 748 So.2d 922, 933 (Fla.1999); Jones v. State, 705 So.2d 1364, 1366 (Fla.1998). Diaz was not previously involved in a murder, and the trial court found six mitigators, including three statutory mitigators, and gave three mitigators “moderate weight,” including the mitigator of commission of the capital crime under the influence of extreme mental or emotional disturbance. I would reduce Diaz’s sentence to life imprisonment.

ANSTEAD, C.J., and SHAW, Senior Justice, concur.

      . At some point during the incident, a neighbor walked up to the Shaws' house. When he approached, both the garage door and the door leading from the garage to the inside of the house were open. The man saw an individual pacing back and forth inside the home, and as he entered the garage, he called out for Charles. Diaz then stepped into the garage, pointed the gun at the man, and said, “Get the f— out of here.” The neighbor returned to his house and called police.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . The aggravating factors were: (1) the capital felony was especially heinous, atrocious, or cruel (HAC) (great weight); (2) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP) (great weight); and (3) the defendant was previously convicted of another capital felony or of a felony involving use or threat of violence to the person (great weight).

      . The mitigating factors were: (1) the defendant had no significant history of prior criminal activity (very little weight); (2) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance (moderate weight); (3) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (very little weight); (4) the age of the defendant at the time of the crime (moderate weight); and (5) the existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty: (a) the defendant was remorseful (very little weight); and (b) the defendant's family history of violence (moderate weight).

      . Diaz also argues that circumstantial evi- • dence corroborates his testimony that he lost control after Charles Shaw struck him in the face in the garage. However, because Diaz’s claim is essentially that this circumstantial evidence negates a finding of the heinous, atrocious, or cruel (HAC) and cold, calculated, and premeditated (CCP) aggravating factors and therefore affects the proportionality of his death sentence, we address this claim in the remaining issues. Also, as explained below, we note that whether an altercation in the garage furnishes circumstantial evidence that the victim struck Diaz in the face is ultimately irrelevant given the substantial evidence surrounding Diaz’s intent to go to the Shaw's house on the morning of October 28 to commit murder.

      . We reject Diaz’s claim that the trial court erred in instructing the jury on this aggravator. A court may give a requested jury instruction on an aggravating circumstance if the evidence adduced at trial is legally sufficient to support a finding of that circumstance. Ford v. State, 802 So.2d 1121, 1133 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). Instead, we review whether substantial competent evidence supports this finding.

      . Perhaps because of our practice of using the acronym “HAC” for this aggravator, we have not consistently recognized that the capital felony must be "especially” heinous, atrocious, or cruel, as section 921.141 (5)(h) explicitly provides. See, e.g., Bowles v. State, 804 So.2d 1173, 1176 (Fla.2001) (discussing aggravator but not mentioning the word "especially”), cert. denied, 536 U.S. 930, 122 S.Ct. 2603, 153 L.Ed.2d 790 (2002); Rogers v. State, 783 So.2d 980, 994 (Fla.2001) (same). "Especially” or "especial” is defined as "of special note or importance, unusually great or significant.” Webster’s Collegiate Dictionary 396 (10th ed.1994). A more proper acronym for this aggravator may be “EHAC.”

      . We reject Diaz’s claim that the trial court erred in instructing the jury on this factor. As noted above, a trial court may give a requested jury instruction on an aggravating circumstance if the evidence adduced at trial is legally sufficient to support a finding of that circumstance. Ford, 802 So.2d at 1133. Instead, we review whether substantial competent evidence supports this finding.

      . We note that “this Court has never approved a 'domestic dispute’ exception to the imposition of the death penalty.” Spencer v. State, 691 So.2d 1062, 1065 (Fla.1996).

      . One of the remaining aggravators, prior violent felony convictions, carries less weight when, as in this case, it is not based on a significant history of violent crimes. See Hess v. State, 794 So.2d 1249, 1266 (Fla.2001).

      . I note that the statement in Provenza.no, "if the murder was committed in a manner that was cold and calculated, the aggravating circumstance of heightened premeditation is applicable,” is inconsistent with section 921.141(5)(i), which provides that CCP applies if the murder "was committed in a cold, calculated, and premeditated manner.” (Emphasis supplied.) Under the statute, heightened premeditation must exist independently of whether the murder was committed in a cold and calculated manner.


author: KELLY, Judge.

text:
    Lawrence STALEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5099.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Following his no contest plea, Lawrence Staley was adjudicated guilty and sentenced for several offenses including trafficking in hydroeodone and trafficking in phenethylamines. Staley reserved his right to appeal the imposition of the three-year minimum mandatory sentences on each trafficking count, arguing that because his offenses occurred in July 2001, such mandatory terms of imprisonment are illegal based on this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). We agree.

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In 2002, the legislature reenacted the provisions originally contained in chapter 99-188. See Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). However, in Green, this court held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

The window period for asserting challenges based on the unconstitutionality of chapter 99-188 opened on July 1,1999, and closed on April 29, 2002, the effective date of chapters 02-208 through 02-212, Laws of Florida. See Green, 839 So.2d at 750 n. 1. Because Staley committed his offenses in July 2001, within the Taylor window, we reverse his sentences and remand for re-sentencing under the valid law in effect at the time of Staley’s offenses. We certify that this decision conflicts with the Fifth and Fourth Districts’ decisions in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002); Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002); and Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002).

Reversed and remanded.

SALCINES and WALLACE, JJ„ Concur.


author: PER CURIAM.

text:
    Leland ATKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1417.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Rehearing Denied Dec. 16, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he sought prison and jail credit. The appellant was originally sentenced together on case numbers 89-1036 and 89-1189 as follows: to 15 years of incarceration on count one of case number 89-1036, to be followed by seven years of incarceration and eight years of probation on counts two, three, and four of case number 89-1036, concurrent with the only count in case number 89-1189. The appellant completed all his terms of incarceration, violated his probation, and was then resentenced to 15 years of incarceration on count two of case number 89-1036, with credit under Tripp v. State, 622 So.2d 941 (Fla.1993), for the 15 years of incarceration he had completed on count one, to be served concurrently to 15 years of incarceration on count three with credit for the seven years of incarceration previously served on this count; and on count four of case number 89-1036 and count one of case number 89-1189, to 10 years of incarceration on each count, to be served consecutively to counts two and three but concurrently to each other, with no prison credit awarded.

The appellant brings three distinct claims: (1) that under Tripp he was not properly credited with prior prison time served on count one of 89-1036 against counts three and four of that case, (2) that he was not properly credited for the full prison term served on case numbers 89-1036 count four, and 89-1189, including gain time, and (3) that he was not properly credited for all jail time served on all his counts prior to his resentencing. We reverse the denial of claim number one as to count three, affirm the denial of claim number one as to count four, and reverse the denial of claim number two. Because claim three is facially insufficient, we affirm the denial of this claim without further comment.

The appellant’s entitlement to relief on his first claim depends upon whether his sentences upon revocation were imposed concurrently or consecutively. When an appellant is entitled to Tripp credit and receives concurrent sentences upon violation of probation, such an appellant is entitled to concurrent Tripp credit on such concurrent sentences. See Campbell v. State, 631 So.2d 390, 390-91 (Fla. 1st DCA 1994); Singer v. State, 679 So.2d 1274, 1275 (Fla. 2d DCA 1996). Therefore, because the appellant was sentenced to concurrent 15 year terms of incarceration on counts two and three, the appellant was also entitled to receive concurrent terms of Tripp credit on both counts two and three in the amount of the 15 years previously served on count one.

In contrast, when an appellant is entitled to Tripp credit and receives consecutive sentences upon violation or probation, the appellant is not entitled to Tripp credit on each consecutive count and must only receive such credit once as to any consecutive sentences. See Hodgdon v. State, 789 So.2d 958, 963 (Fla.2001). Therefore, the appellant was properly denied Tripp credit on count four because count four was sentenced consecutively to counts two and three. Accordingly, on claim one we reverse the denial of Tripp credit on count three, and affirm the denial of Tripp credit on count four.

The trial court’s denial of the appellant’s second claim, for prison credit previously served on each count, is reversed because appellants are always entitled to prison credit previously served upon violating the probationary portion of a split sentence. See Layman v. State, 787 So.2d 44, 45 (Fla. 2d DCA 2001). Appellants who originally served concurrent probationary split sentences are entitled to prison credit earned on each count when resentenced even if the new incarcerative terms are run consecutively to each other. See Jones v. State, 633 So.2d 482, 482-83 (Fla. 1st DCA 1994); Tillman v. State, 693 So .2d 626, 628 (Fla. 2d DCA 1997). Therefore, the appellant should have received seven years of prison credit on count four of case number 89-1036 and on case number 89-1189, even though these sentences were run consecutively to counts two and three of case number 89-1036 upon revocation of probation.

Since claim number one as to count three, and claim number two as a whole are both facially sufficient and not refuted by the record, we reverse the denial of these claims and remand for the .award of proper prior prison credit or for record attachments which conclusively refute the appellant’s entitlement to relief on these claims. We affirm the denial of claim number one as to count four, and affirm the denial of claim three.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

WOLF, C.J., BROWNING and HAWKES, JJ., concur.

      . Because the appellant served seven years of prison on each of his counts before being resentenced upon violation of probation, the appellant is entitled to seven years of credit on each count. However, the appellant did not claim the entitlement to this credit on counts two and three. Since the appellant will receive 15 years of Tripp credit on counts two and three, an additional award of seven years of credit on these counts would have no effect. We note that the entitlement to Tripp credit on these counts does not affect the appellant’s entitlement to prison credit directly served on these counts.


author: HAWKES, J.

text:
    SAFEHARBOR EMPLOYER SERVICES I, INC., Appellant, v. Juan CINTO VELAZQUEZ, Appellee.
    No. 1D02-3380.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.
    Rehearing Denied Dec. 11, 2003.

      David A. Lamont, The Lamont Law Group, P.A., Clearwater and H. George Kagan, Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for Appellant.
    Russell A. Dohan, Goldberg, Dohan & Katz, L.L.P. and Randy D. Ellison, West Palm Beach, for Appellee.
   HAWKES, J.

We are asked to decide whether an illegal alien may receive benefits under Chapter 440, Florida Statutes (2002), in light of Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). We find that he can, and affirm.

Safeharbor Employer Services, Inc. argues that Hoffman preempts Florida law, and thus illegal aliens in Florida are precluded from receiving workers’ compensation benefits. Hoffman held that pursuant to the Immigration Reform and Control Act (IRCA), the National Labor Relations Board lacked authority to award backpay to an illegal alien because he had never been legally authorized to work in the United States, even though he had been unlawfully terminated in violation of the National Labor Relations Act and would have otherwise been entitled to benefits. See id. at 1282.

Although not yet addressed by Florida courts, this issue has been decided by the Supreme Courts of Pennsylvania and Minnesota. The Pennsylvania Supreme Court held that subsequent to Hoffman, public policy did not exclude an illegal alien from receiving relief under their Workers’ Compensation Act. See Reinforced Earth Co. v. W.C.A.B. (Astudillo), 570 Pa.464, 810 A.2d 99 (2002). Similarly, the Minnesota Supreme Court recently held IRCA, subsequent to Hoffman, does not preempt a state’s authority to award workers’ compensation benefits to illegal aliens. See Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn.2003).

The Florida Workers’ Compensation Act clearly allowed benefits to illegal aliens under Chapter 440 prior to Hoffman. See Cenvill Development Corp. v. Candelo, 478 So.2d 1168, 1170 (Fla. 1st DCA 1985); see also Gene’s Harvesting v. Rodriguez, 421 So.2d 701, 701 (Fla. 1st DCA 1982) (holding fact that workers’ compensation claimant was illegal alien did not preclude entitlement to benefits for work-related injury). Hoffman does not mandate a different result.

In the absence of an express congressional statement, a state law may still be preempted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field as to require a reasonable inference that Congress left no room for it to be supplemented by the state. See Harrell v. Fla. Constr. Specialists/AARLA/Agent for FWCIGAl, 834 So.2d 352 (Fla. 1st DCA 2003). IRCA does not contain express preemption language nor does it so thoroughly occupy the field as to require a reasonable inference that Congress left no room for states to act. Further, since Hoffman found benefits other than back-pay to be applicable to illegal aliens, there is no conflict between state and federal law in this case. See Hoffman, 122 S.Ct. at 1285. The United States Supreme Court has stated that workers’ compensation is an area where states have authority to regulate under their police powers. See De Canas v. Bica, 424 U.S. 351, 356, 96 S.Ct. 933, 937, 47 L.Ed.2d 43 (1976). Therefore, we conclude that the Florida legislature’s right to enact workers’ compensation benefits for illegal aliens is not preempted by federal action. The JCC’s award of benefits is

AFFIRMED.

WOLF, C.J., and BROWNING, J., concur.


author: GREEN, J. GERSTEN, Judge

text:
    R.H., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-2399.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Rehearing Denied Dec. 3, 2003.

      Douthit and Murray and Marc Anthony Douthit, Miami, for appellant.
    Calianne P. Lantz, Assistant District Legal Counsel, for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   GREEN, J.

The father, R.H., appeals an order denying his motion to vacate default, which led to the termination of his parental rights. Without expressing an opinion as to the merits of the petition to terminate, we reverse the final judgment terminating the father’s parental rights and remand for further proceedings.

In February 2002, an amended petition for termination of parental rights was filed. Both parents appeared at an advisory hearing on March 17, 2002, and a trial was set for 9:00 a.m., June 27, 2002. Not only was the father advised of the trial date at the hearing, but counsel for the father also sent a letter informing him of the time and date of the trial. The trial date was subsequently changed, however, to May 29, 2002. The court sent written notice of this change to the father’s counsel.

Upon receipt of the new trial date, counsel sent the father a second letter, which mimicked the first letter, save the trial date. The father claims that he thought this second letter was simply a duplicate of the initial letter denoting the June 27th trial date. The father did not appear at the May 29th trial and the court entered a default against him. Without the presentation of any evidence in support of the petition for termination by DCF, a final judgment was entered, terminating the father’s parental rights.

The father filed a timely motion to vacate default. Attached to the motion as exhibits were copies of the two letters sent to the father by his attorney and certificates of completion from an outpatient substance abuse program and from Advocate Program, Inc. The father claimed that he did not appear at the May 29, 2002, hearing due to excusable neglect in that he did not recognize that his lawyer’s second letter had a new court date. In addition, the father argued that he had a meritorious defense to the underlying petition for termination of parental rights because he had successfully completed the programs “suggested” in his case plan. The trial court held a hearing on the father’s motion, and denied it outright, writing that:

Upon reviewing the Motion together with [the] exhibits the court finds that there was no excusable neglect for the father’s failure to appear for trial and that it would not be in the best interest of the minor children to delay their placement.

To begin with, Florida public policy favors an adjudication on the merits over the entry of default, and thus a properly filed motion to vacate should be liberally granted. Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3d DCA 1990); see also Cunningham v. White, 390 So.2d 467, 468 (Fla. 3d DCA 1980) (“The courts of this state have generally been quite liberal in setting aside default judgments, and any reasonable doubt should be resolved in favor of granting the motion in order to permit a trial on the merits.”). See Fla. R. Civ. P. 1.540(b)(1).

In this case, the trial court found that the father’s failure to attend the termination proceedings due to his uncontro-verted confusion over the trial dates was not the result of excusable neglect. This finding was an abuse of discretion. See, e.g., Wilson v. Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992) (holding that motion for relief from judgment should be granted where failure to attend hearing was result of mistake and not because of a “wilful and flagrant act.”); Am. Agronomics Corp. v. Varner, 413 So.2d 484, 485 (Fla. 2d DCA 1982) (holding that trial court abused discretion in failing to set aside default judgment where corporate director was served with summons and complaint, but failed to deliver them to counsel because he was under mistaken belief that they were duplicate papers served in unrelated lawsuit). See also Zwickel v. KLC, Inc., 464 So.2d 1280, 1280 (Fla. 3d DCA 1985) (“A failure to timely respond in an action should be considered excusable where it is due to confusion which reasonably exists.... ”).

Not only did the trial court here find that the father’s actions did not amount to a showing of excusable neglect, the court found that vacating the default would not be in the best interest of the children. The second tier of the test to vacate a judgment, however, is whether the party has a meritorious defense, not the best interest of the child. The trial court’s use of this fallacious standard was a misapplication of the law and also mandates reversal. See Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., 275 So.2d 41, 43 (Fla. 3d DCA 1973)(holding that a timely motion to vacate showing excusable neglect and asserting a meritorious defense should be granted).

Finally, and most importantly, the trial court erred when it terminated the father’s parental rights without the taking of any evidence in support of such termination.

The significance of the rights at issue here cannot be overstated. In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court considered termination of parental rights procedures under New York law. At issue in Santosky was whether the “fair preponderance of the evidence” standard prescribed by the New York Family Court Act for the termination of parental rights violated the parents’ due process rights. 455 U.S. at 747, 102 S.Ct. 1388. The Santo-shy Court made it clear that state intervention to terminate parental rights must be accomplished by procedures meeting the requisites of due process. As the Santosky Court explained, it is
“plain beyond the need for multiple citation” that a natural parent’s “desire for and right to ‘the companionship, care, custody, and management of his or her children’ ” is an interest far more precious than any property right.... “A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.”
455 U.S. at 758, 102 S.Ct. 1388 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Moreover, the Supreme Court stated that the fundamental liberty interest a parent has in the custody and care of his or her child “does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” Id. at 753, 102 S.Ct. 1388.
While there is no laundry list of specific procedures that must be followed to protect due process guarantees, an analysis of the United States Supreme Court’s prior decisions identifies certain procedures that are typically required before an individual can be deprived of a property or liberty interest. In all situations, the Court has required fair procedures and an unbiased decisionmaker. Additionally, the Court has also required notice of the government’s action and an opportunity to respond before termination of the interest. See id.; see also Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (holding that due process requires an eviden-tiary hearing prior to the termination of welfare assistance because termination “may deprive an eligible recipient of the very means by which to live”).

J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1064 (Fla.2000).

DCF, however, relying on M.A. v. Florida Department of Children & Family Services, 760 So.2d 249 (Fla. 3d DCA 2000), and M.E. v. Florida Department of Children & Family Services, 728 So.2d 367 (Fla. 3d DCA 1999), claims that the default and subsequent final judgment were proper. DCF argues that the father’s “failure” to maintain reasonable contact with his counsel was sufficient grounds to enter a default against the father in his absence, and the default was ground for effectively terminating his parental rights. We find both M.A. and M.E. to be distinguishable from the case at bar.

In M.A., the mother was ordered by pretrial order to attend a final termination of parental rights hearing. A calendar call was held, which the mother attended, and the parties were instructed to be prepared to come to trial on two hours’ notice the week of August 17th. M.A., 760 So.2d at 249. On August 18th, the trial court contacted counsel to inform them that the trial would start the following morning. Id. Counsel could not reach the mother. On the day of trial, the mother’s counsel orally moved for a continuance, which was denied. Id. Thereafter, a trial proceeded with counsel acting on the mother’s behalf. A judgment terminating the mother’s parental rights was entered six weeks later. On appeal the mother claimed that the trial court had abused its discretion in denying her counsel’s motion for continuance. This court disagreed, finding that the mother knew she needed to be available for trial during the week of August 17th on two hours notice, and that it was her duty to keep in touch with counsel. Id. at 249-50, citing M.E., supra.

Similarly, in M.E., a trial was held in a mother’s absence resulting in the termination of her parental rights. Specifically, this court found that:

[t]he more substantial question is whether the trial court should have granted the mother’s motion ■ for rehearing on this ground. We find no abuse of discretion under the facts present here. The trial court postponed ruling on the motion for rehearing so that the mother could file an affidavit stating the reasons for her nonattendance at trial and the substance of what her testimony would be, if the record were reopened. Since the mother never filed the affidavit, the trial court quite properly denied the motion for rehearing.

M.E., 728 So.2d at 369.

In both of these cases, a trial on the merits was held where counsel could respond to and challenge DCF’s charges on behalf of the parents. In this ease, however, we have a default entered without the benefit of the presentation of any evidence. The trial court’s final judgment relied solely on the court’s past dealings with the father and the papers filed with the termination petition. We believe that, at a bare minimum, the father must be given a fair opportunity to be heard and respond to DCF’s charges before the rights to his children are adjudicated by the court. See, e.g., J.T. v. Dep’t of Children & Families, 800 So.2d 692, 693 (Fla. 5th DCA 2001) (affirming termination of parental rights where parents did not appear at termination hearing and court heard testimony and found evidence of parents’ non-compliance with DCF’s case plan and parents’ failure to remedy conditions which led to children’s removal from parents’ home).

Reversed and remanded for proceedings consistent with this opinion.

LEVY, J., concurs.

GERSTEN, Judge

(concurring).

I concur in the majority’s decision to reverse the final judgment for termination of parental rights and finding of a default by consent. I write separately to clarify that defaults by consent can be properly entered against parents pursuant to Section 39.801(3)(d), Florida Statutes (2002). See J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060 (Fla.2000)(upholding constitutionality of consent to default provision of Section 39.801(3)(d) which permits termination of parental rights based upon a parent’s neglect of the proceeding); J.T. and N.T. v. Dep’t of Children and Families, 800 So.2d 692 (Fla. 5th DCA 2001)(parental rights terminated even though parents failed to appear at termination hearing).

There is no requirement that a parent be present at trial in order to terminate his or her parental rights. See § 39.801(3)(d), Fla. Stat. (2002)(authorizing termination of parental rights by default; failure to personally appear at adjudicatory hearing “shall constitute consent for termination of parental rights”); J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d at 1060; J.T. and N.T. v. Dep’t of Children and Families, 800 So.2d at 692.

Section 39.801(3)(d) provides that a consent for termination of parental rights shall be entered where: (1) a parent appears at the advisory hearing, (2) the parent is ordered to appear at the subsequent adjudicatory hearing, (3) the parent is provided with the date, time and location of the hearing, and (4) the parent fails to appear at the adjudicatory hearing. In the present case, both parents appeared at the advisory hearing, were ordered to appear at the adjudicatory hearing, and were given the date, time and location of the hearing.

I disagree with the majority’s conclusion that the trial court misapplied the law when it mentioned a concern regarding the best interests of the minor children in its 10-page order. Pragmatically, in cases involving termination of parental rights, the best interests of children is always an appropriate underlying concern. Such concern does not translate into a finding of abuse of discretion. There is no evidence in the record that the trial court applied the wrong standard in assessing the merits of the father’s “Motion to Vacate Default.”

However, since Florida public policy favors adjudication on the merits, I agree with the majority on this sole basis. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962); Apolaro v. Falcon, 566 So.2d 815 (Fla. 3d DCA 1990). Accordingly, I concur in the result only.

      . This rule provides in pertinent part:
      (b) On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect....
      Fla. R. Civ. P. 1.540(b)(l)(1992).

        . Even if the best interest of the child was the test, it could not have been satisfied in this case where the default was entered without the presentation of any evidence in support of the petition by DCF. See F.C. v. State, Dept. of Children & Families, 780 So.2d 159, 162 (Fla. 2d DCA 2001) ("A finding that the termination is in the child's manifest best interest is not sufficient to support a judgment terminating a parent's rights.”).

      . The father failed to return four telephone calls from his attorney.

      . In addition, we specifically noted that:
      six weeks elapsed between the conclusion of the final hearing and the entry of the final judgment. Certainly if the mother wished to have the record reopened so she could testify, or desired other relief, there was ample time for her to file an appropriate motion.... She did not do so.

        M.A., 760 So.2d at 250. In this case, the father filed his motion to vacate default less than a week after the default had been entered against him and nearly three weeks before the original court date.


author: THOMPSON, J.

text:
    Phillip Alexander GOOLSBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2936.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    Rehearing Denied Dec. 5, 2003.
    Phillip A. Goolsby, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Phillip Alexander Goolsby appeals the denial of his motion for relief from judgment pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm because no error has been shown. We write only to point out that a defendant’s speedy trial rights with respect to charges in one jurisdiction are not implicated when the defendant is being held pending a trial in another jurisdiction. See Hill v. Wainwright, 617 F.2d 375, n. 1 (5th Cir.1980) (holding that the state could not under any circumstances be charged for the delay during the period the defendant was held after his arrest for and until his conviction on felony charges in another jurisdiction).

AFFIRMED.

SHARP, W. and ORFINGER, JJ„ concur.


author: BARFIELD, J.

text:
    FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, Appellant, v. John Ellis "Jeb" BUSH, as Governor of the State of Florida, Appellee.
    No. 1D02-2087.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Rehearing Denied Dec. 10, 2003.

      Jerry G. Traynham and Ben R. Patterson, of Patterson & Traynham, Tallahassee, for Appellant.
    John-Edward Alley and Edmund J. McKenna, of Ford & Harrison LLP, Tampa; Allen J. McKenna, of Ford & Harrison LLP, Orlando; and Samuel A. Terilli, Jr., of Ford & Harrison LLP, Miami, for Ap-pellee.
    William W. Wertz, Special Counsel, Senior Assistant Attorney General and Special Advisor on Labor Issues, Tallahassee, for the Attorney General.
   BARFIELD, J.

Florida Public Employees Council 79, AFSCME (hereinafter AFSCME) appeals the final judgment denying challenges to chapter 01-043, Laws of Florida, known as the “Service First” initiative, and to elements of the 2001 General Appropriations Act. The trial judge dismissed four counts of the complaint filed by AFSCME, granted summary judgment to Governor Jeb Bush as to three other counts, and denied AFSCME’s cross-motion for summary judgment. We affirm in part and reverse in part.

AFSCME is the certified bargaining agent for four bargaining units of State Career Service System employees, and the Governor is the statutory public employer of the employees represented. Negotiations began for a successor bargaining agreement in September 2000 for the collective bargaining agreement that was effective through June 30, 2001. On January 19, 2001, AFSCME was informed that the Governor had issued his Recommended Budget and that an impasse automatically came into being pursuant to section 216.163, Florida Statutes. The Florida Public Employees Relations Commission (PERC) selected a special master on February 21, 2001, and an impasse resolution hearing was conducted before the special master on March 12, 13, and 14, 2001. The special master’s recommendation was dated March 31, 2001, but was allegedly not received by AFSCME until April 3, 2001.

The Governor submitted proposed language to AFSCME on certain items and also filed objections with the legislature to the special master’s report and recommendations. A legislative committee conducted a public hearing on April 3, 2001, to consider and dispose of the collective bargaining impasse. On April 23, 2001, AFSCME submitted its response to the special master’s report and recommendations.

During the 2001 legislative session, the legislature passed chapter 01-043, Laws of Florida, amending various provisions of chapters 110, 216, and 447, Florida Statutes. The legislature also included proviso language in the general appropriations act regarding collective bargaining issues at impasse. On August 2, 2001, AFSCME filed a complaint in circuit court naming the Governor as the defendant.

In Count I of the complaint, AFSCME alleged abuse of the impasse resolution process and denial of due process of law. AFSCME argued that conducting the sole legislative impasse resolution hearing on the same day the special master’s report was received was a radical departure from section 447.403, Florida Statutes, which rendered the collective bargaining rights of AFSCME and its unit members meaningless, and the trial judge should therefore declare the fruits of the process unconstitutional. ■ AFSCME asserted that section 447.403 gave it an expectation that impasse issues would be submitted to a special master and that after the special master’s report issued, it would have an opportunity to discuss the recommendation with its state-wide membership, engage in a reasonable discussion with the Governor in an effort to resolve issues, and present its position on any remaining issues to the legislative body for ultimate resolution. The trial judge dismissed this count of the complaint, finding that it appeared to allege unfair labor practices within the exclusive jurisdiction of PERC.

On appeal, AFSCME asserts that the trial judge erred in dismissing Count I of the complaint because PERC has no jurisdiction over the legislature and no authority to provide any remedy. We disagree. AFSCME initially sought and obtained a temporary injunction prohibiting the legislative committee from conducting the April 3, 2001, hearing. The committee conducted the hearing despite the judicial order. AFSCME then filed a motion asking the trial court to enforce the temporary restraining order and issue an order to show cause why the enjoined parties should not be held in contempt, and a hearing on the motion was scheduled for April 19, 2001. The Senate sought a writ prohibiting the trial court from proceeding with the hearing. The supreme court, in an opinion dated April 18, 2001, noted that section 447.403 sets forth a mechanism for resolving impasses, including appointment of a mediator or special master, and also sets forth a procedure to be implemented in the event that either party rejects the special master’s decision. The supreme court also noted that the first precept of separation of powers — that no branch may encroach upon the powers of another — was implicated in the matter and that the trial judge was without authority to enjoin the public hearing by the legislative committee. The supreme court observed that the petitioners were sued in their legislative roles and stated: “Florida courts have full authority to review the final product of the legislative process, but they are without authority to review the internal workings of that body.” Florida Senate v. Florida Public Employees Council 79, AFSCME, 784 So.2d 404, 409 (Fla.2001).

The allegations in Count I regarding improper actions on the part of the legislature were or should have been resolved in the action filed in circuit court against the legislature, which was subsequently addressed by the supreme court. To the extent Count I alleged improper actions on the part of the Governor, those allegations constitute an alleged unfair labor practice subject to PERC’s jurisdiction. We accordingly affirm the trial court’s dismissal of this count of the complaint.

Section 447.403, Florida Statutes (2000), provided for appointment of a mediator and/or special master. This section was amended by section 44 of chapter 01-043 to provide that if the Governor is the public employer, no mediator or special master shall be appointed and that, instead, the presiding officers of the legislature shall appoint a joint select committee to review the position of the parties and render a recommended resolution of all issues remaining at impasse. In Count VI of its complaint, AFSCME alleged that this amendment so severely undermined the collective bargaining process implemented by chapter 447 that it rendered the legislative scheme arbitrary and unreasonable and denied public employees their rights under article I, section 6, of the Florida Constitution. AFSCME argued that without the right to strike, the availability of a mediator and the ability to require participation of a special master were the only tools previously provided to facilitate impasse resolution, and that no rationale supported the prohibition on mediation. AFSCME also argued that without the persuasive power of a decision by a neutral expert in the field of labor relations, neither the Governor nor the legislature would have any incentive to bargain in good faith. AFSCME requested that the trial judge declare section 44 of chapter 01-043 to be unconstitutional. The trial judge dismissed this count of the complaint, finding AFSCME, as a labor organization, had no standing to raise the issue because it sustained no definable or specific injury in fact and the trial judge had no power to issue advisory opinions concerning a hypothetical or potential claim.

On appeal, AFSCME argues it is directly affected by the change in the impasse resolution procedure and therefore has standing to raise the issue. AFSCME asserts it plainly has associational standing to represent its bargaining unit members, all of whom are regulated by the challenged provisions. AFSCME also argues that it is directly regulated by the challenged provisions, because public employees engage in collective bargaining through certified bargaining agents and the amendment regulates proceedings to resolve bargaining impasses between public employers and bargaining agents such as AFSCME.

We discern no basis for granting relief. As noted by the Governor, under prior law either party to collective bargaining negotiations could avoid mediation simply by requesting that PERC appoint a special master and the parties could agree to waive the appointment of a special master. Additionally, either party to the negotiations could reject the recommendations of the special master, assuming the parties used one. The Governor also notes that, unlike other public employers, the Governor is working under strict deadlines mandated by law and there has long been a statutory requirement for timely presentation of impasse issues to legislative committees for employees of the Governor regardless of use or completion of mediator or special master proceedings. Finally, if the Governor chooses not to bargain in good faith, the union can file an unfair labor charge with PERC. We therefore affirm the dismissal of this count of the complaint.

In Count IV of the complaint, AFSCME argued that as certified bargaining agent, it had a constitutional right to bargain over wages, hours, terms, and conditions of employment of its unit members, and that the legislature lacked the power to waive its right to bargain on any mandatory subject of collective bargaining. AFSCME asserted that various provisions of chapter 01-043, Laws of Florida, and proviso language in the 2001 general appropriations act unconstitutionally waived its right to collectively bargain. The trial judge granted the Governor’s motion for summary judgment on this count of the complaint, correctly finding the challenged portions of legislation did not violate the collective bargaining rights of AFSCME or its members.

In Count III of its complaint, AFSCME argued that the proviso language in the 2001 general appropriations act violated article III, section 12, of the Florida Constitution, which requires that the general appropriations act contain no provisions on any other substantive matters. The trial judge granted the Governor’s motion for summary judgment with regard to this count, finding no substantive law was changed by the challenged portions of the act and that the proviso language is directly and rationally related to appropriations.

Article III, section 12, Florida Constitution, provides: “laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.” In Brown v. Firestone, 382 So.2d 654, 664 (Fla.1980), the supreme court recognized that two principles follow from an analysis of article III, section 12:

First, an appropriations bill must not change or amend existing law on subjects other than appropriations.... Were we to sanction a rule permitting an appropriations bill to change existing law, the legislature would in many instances be able to logroll, and in every instance the integrity of the legislative process would be compromised.
Second, article III, section 12, will countenance a qualification or restriction only if it directly and rationally relates to the purpose of an appropriation and, indeed, if the qualification or restriction is a major motivating factor behind enactment of the appropriation. That is to say, has the legislature in the appropriations process determined that the appropriation is worthwhile or advisable only if contingent upon a certain event or fact, or is the qualification or restriction being used merely as a device to further a legislative objective unrelated to the fund appropriated? This test possesses the dispositive virtue of permitting the legislature reasonably to direct appropriation use without hampering the gubernatorial veto power or abusing the legislative process.

As noted by AFSCME, the State’s last offer is a proposed modification of the collective bargaining agreement in such areas as disciplinary actions which may be grieved, grounds for disciplinary actions, the burdens of proof in arbitration under the contract procedure, and leaves of absence. The State’s last offer also suggests the parties adopt the employing agency’s layoff transition plan and section 110.227, Florida Statutes, as the procedure for effecting layoffs of bargaining unit members. We agree with AFSCME that neither the State’s last offer nor the proviso language of the General Appropriations Act at issue is related to any specific appropriation. We therefore hold that the challenged proviso language clearly violates article III, section 12 of the Florida Constitution.

AFFIRMED in part and REVERSED in part.

WOLF, C.J., and DAVIS, J., Concur.


author: PETERSON, J.

text:
    Paul W. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3923.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Dec. 3, 2003.

      James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   On Motion for Rehearing

PETERSON, J.

Paul W. Anderson requests that we recall the mandate and grant rehearing of our previous February 11, 2003, Per Cu-riam Affirmance because a copy of that decision had been mailed to the incorrect office of the public defender. We had previously recalled the mandate. We now grant the motion for rehearing, withdraw our previous decision, and substitute the following opinion for our previous decision.

Anderson appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.850 motion for collateral relief alleging that his 1982 plea of no contest to grand theft auto and grand theft was unknowing and involuntary because he was not advised of the possibility of deportation. He also alleges that his trial counsel was ineffective for not advising him that he would be subject to deportation and-for not seeking a judicial recommendation that would have eliminated that potential. Lastly, he argues that the 1989 adoption of Florida Rule of Criminal Procedure 3.172(c)(8), requiring the sentencing court to advise defendants of the consequences of deportation, should apply retroactively.

A criminal defendant who is not a United States citizen and who has been found guilty of committing a crime in this country can be deported as one of the consequences of illegal activity. Rule 3.172(c)(8) requires that a foreign national be advised of the risk of deportation prior to entering a plea to a criminal charge. However, that requirement was not adopted until 1989, approximately seven years after Anderson entered his plea. Prior to 1989, the possibility of deportation was considered a collateral consequence and no duty existed requiring the court or defense counsel to advise a defendant of that collateral consequence. See State v. Ginebra, 511 So.2d 960 (Fla.1987), superceded by rule, State v. De Abreu, 613 So.2d 453 (Fla.1993). No court has held that rule 3.172(c)(8) should apply retroactively and the Florida Supreme Court recently reaffirmed Ginebra. See Major v. State, 814 So.2d 424 (Fla.2002).

Procedural History

Anderson was convicted of grand theft auto and grand theft in 1982. He did not appeal. In 2000, he filed his first rule 3.850motion seeking to withdraw his no contest plea because the trial court allegedly failed to inform him of the possibility of deportation and because defense counsel was ineffective for failing to advise him of that consequence. The trial court denied the motion on August 31, 2000, but sua sponte reconsidered the motion on April 20, 2001 and vacated the judgment and sentence. The State appealed that decision and this court reversed finding that the trial court lacked jurisdiction to reconsider the earlier denial as that had not been appealed. See State v. Anderson, 821 So.2d 1206 (Fla. 5th DCA 2002).

Anderson then filed his current rule 3.850motion on September 16, 2002, alleging facts similar to the first motion. The trial court held that the first order denying relief was res judicata because Anderson had not appealed the first rule 3.850 motion and the State’s appeal of the trial court’s reconsideration of the first rule 3.850motion established the law of the case.

Successive Motion, Res Judicata and Law of the Case

We do not view Anderson’s second rule 3.850 motion to be barred by either res judicata or the law of the case, because the trial court’s reason for denial of the first motion was based upon untimeliness and the prior appeal was based upon the trial court’s lack of jurisdiction to reconsider the denial of the first motion. Dismissal of successive motions are appropriate when a prior determination was on the merits rather than on procedural grounds. Fla. R.Crim. P. 3.850(f). The reason given by the trial court for denial of the first motion was Anderson’s failure to seek collateral relief within two-years after the judgment became final; in other words, within two-years and 30 days from the date of the judgment. This court’s reversal of the order entered after the trial court’s reconsideration of the denial of the first motion was based upon the trial court’s lack of jurisdiction to reconsider that denial some six months after the initial denial. A motion to reconsider had not been filed and it is unclear how the trial court was prompted to reconsider denial of the first motion. Neither the trial court’s prior ruling nor this court’s previous reversal on appeal were rulings on the merits and the trial court’s denial of the second rule 3.850 motion, the subject of this appeal, based upon res judicata and law of the case was error.

Collateral Relief Entitlement Pursuant to Florida Rule of Criminal Procedure 8.172(c)(8)

Rule 3.172(c)(8) was adopted in 1989, seven years after Anderson entered his plea. At the time Anderson entered his plea, no requirement existed in Florida that would require a court to advise a defendant of the possible deportation consequences. Nevertheless, Anderson contends inter alia that he is still entitled to relief because rule 3.172(c)(8) should be applied retroactively. No court has ever ruled that retroactive application of rule 3.172(c)(8) is applicable and we decline the invitation to do so.

Failure of Counsel to Seek Judicial Recommendation Against Deportation

8 U.S.C.A. § 1251(b), in effect at the time Anderson was sentenced, was eliminated in 1990. This federal statute allowed a defendant who was not a United States Citizen to seek a recommendation against deportation from the sentencing judge. Anderson claims that his defense counsel was ineffective for failing to seek such a recommendation, but fails to allege that counsel was made or should have been aware of Anderson’s status as a foreign resident. Counsel is not ineffective for failure to warn of the possibility of deportation when a defendant does not advise counsel of his citizenship and has no noticeable accent that would invite inquiry. See Johnson v. State, 760 So.2d 992 (Fla. 2d DCA 2000).

We affirm the denial of his motion.

AFFIRMED.

SAWAYA, C.J, and ORFINGER, J., concur.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Kevin Scott HARVILL, Appellee.
    No. 5D02-1193.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Dec. 12, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    Terrence E. Kehoe, Law Offices of Terrence E. Kehoe, and James M. Russ, Law Offices of James M. Russ, P.A., Orlando, for Appellee.
   ORFINGER, J.

The State of Florida appeals the trial court’s order expunging Kevin S. Harvill’s non-judicial criminal history records. We reverse.

Section 943.0585, Florida Statutes (2000), provides that the courts “shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history has applied for and received a certificate of eligibility for expunction.” Here, Harvill filed his petition to expunge and attached the required certificate of eligibility from the Florida Department of Law Enforcement (FDLE). However, several days before the hearing on Harvill’s motion, FDLE advised Harvill’s attorney and the State that it was revoking the certificate of eligibility because FDLE learned that Harvill secured a prior sealing or expunction of a criminal history record in Louisiana.

The existence of a valid certifí-cate of eligibility is a condition precedent to the court’s consideration of an expungement petition. State v. Plotka, 689 So.2d 1174 (Fla. 5th DCA 1997). We conclude that the trial court erred when it failed to consider that because FDLE revoked the required certificate of eligibility, Harvill had not complied with the required conditions precedent. If Harvill believes that FDLE has erroneously revoked his certificate of eligibility, he may “file either a mandamus petition, or other appropriate action, in the trial court to resolve the dispute.” See Rowell v. State, Fla. Dep’t of Law Enforcement, 700 So.2d 1242, 1244 (Fla. 2nd DCA 1997). We reverse the trial court’s order and remand the matter for further consideration consistent herewith.

REVERSED AND REMANDED.

SAWAYA, C.J. and PLEUS, J., concur.


text:
    Julia Hong TRAN, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. 1D02-3678.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    Rehearing Denied Dec. 11, 2003.
    David Lee Sellers, Pensacola, for Appellant.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for Appel-lee.
   PER CURIAM.

Section 768.79, Florida Statutes, applies to cases brought pursuant to section 627.736, Florida Statutes, and to cases pending in small claims court. Nichols v. State Farm Mutual, 851 So.2d 742 (Fla. 5th DCA 2003); U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000), review dismissed, 796 So.2d 532 (Fla.2001). We accordingly answer the certified questions in the affirmative. We certify to the Florida Supreme Court, however, the following question as one of great public importance: May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?

AFFIRMED.

BARFIELD, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Alphonso FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3788.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Alphonso Fletcher, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before the court on remand from the Supreme Court of Florida, which quashed this court’s opinion in Fletcher v. State, 800 So.2d 626 (Fla. 4th DCA 2001), and remanded for reconsideration in light of the recent decision in State v. Lemon, 825 So.2d 927 (Fla.2002). State v. Fletcher, 863 So.2d 137, 2003 WL 22019508 (Fla. Aug. 28, 2003).

Applying Lemon, we affirm the trial court’s order summarily denying appellant’s rule 3.800(a) motion to correct illegal sentence, as the record shows that the statutory factors relied on by the trial court for appellant’s guidelines aggravated departure could have been imposed under the 1994 guidelines. As such, appellant was not adversely affected by application of the 1995 guidelines so as to be entitled to resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000). We affirm the summary denial of appellant’s other sentencing challenge without further discussion.

AFFIRMED.

FARMER, C.J., GUNTHER and STONE, JJ., concur.