text:
    James Lincoln LOWE v. STATE of Alabama.
    CR-01-0227.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Robert Chandler Davis, Gadsden, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   COBB, Judge.

This is an appeal by James Lincoln Lowe from the trial court’s revocation of his probation. On October 25, 1999, pursuant to a negotiated agreement, Lowe pleaded guilty to second-degree receiving stolen property. The trial court sentenced him to serve five years in prison, but suspended the sentence and placed Lowe on probation for five years. On August 7, 2001, a delinquency petition was filed against Lowe. After conducting a hearing, the trial court revoked Lowe’s probation on September 20, 2001. Lowe filed a “Motion to Reconsider, Alter, Amend or Vacate or in the Alternative for New Trial,” which the trial court summarily denied. (C.R.34.)

On appeal, Lowe argues 1) that the trial court’s order is inadequate because it does not specify the evidence relied upon in revoking Lowe’s probation or the reasons for the revocation, and 2) that the trial court erroneously revoked his probation on the basis of his failure to pay court-ordered monies. The State agrees that this cause should be remanded in order for the trial court to enter an adequate written order as required by Rule 27.6(f), Ala. R.Crim. P.

“The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court ‘has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.’ Puckett, 680 So.2d at 983.”

Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erroneously failed to advise him of his right to request counsel during probation revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).

Lowe did not present his second argument regarding his failure to pay court-ordered monies to the trial court; therefore, he has not preserved that issue for appellate review. Owens, supra.

Lowe’s first argument, however, appears to have merit. In revoking his probation, the trial court issued the following order:

“Upon Petition for Revocation being filed on ... August 7, 2001, and case coming on to be heard on September 20, 2001, with said Defendant and his attorney present ..., the Court finds that the Defendant was served with a copy of the Delinquent Charges against him on August 16, 2001, and upon Defendant’s attorney of record on September 20, 2001.
“Now comes the Defendant with his attorney and in open court this the 20th day of September 2001, the State having proven the violations alleged in Charge Nos. 5, 6, and 7, after hearing testimony of the Defendant to show cause why his probation should not be revoked at this time, the Court finds that the Defendant violated the conditions of his probation as set forth in the Delinquent Charges, more specifically[,] Charge[s] Nos. 5, 6, and 7.
“It is, therefore, ORDERED, ADJUDGED AND DECREED BY THE COURT that the Defendant’s probation be and hereby is REVOKED and the Defendant is hereby sentenced to imprisonment in the State Penitentiary for a term of five (5) years for the offense of Receiving Stolen Property, 2nd Degree.”

(C.R.29.)

“ ‘In accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Crim.App.1994).”

Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000). See also Rule 27.6(f).

Although the trial court’s order alludes to the numbers of the charges in the delinquency petition filed against Lowe, this is inadequate to state the grounds for revocation, particularly in light of the fact that the record reflects that there is no “Charge 7” in the petition. Additionally, the order does not state to any extent the evidence relied upon by the trial court in reaching its decision to revoke Lowe’s probation.

Therefore, we remand this cause to the trial court for that court to enter an adequate written order as required by Rule 27.6(f). Due return shall be made to this Court within 28 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . In the body of this argument, Lowe also appears to take issue with the sufficiency of the evidence against him. However, he did not first present this argument to the trial court; therefore, he has not preserved this argument for appellate review. Owens v. State, 728 So.2d 673 (Ala.Crim.App.1998).


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Rickey BELL v. STATE of Alabama.
    CR-00-2583.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      Rickey Bell, pro se.
    William H. Pryor, Jr., atty. gen., and Beth Slate Poe, asst. atty. gen., for appel-lee.
   COBB, Judge.

On November 20, 2000, Rickey Bell was convicted of the unlawful possession of a controlled substance (cocaine). The trial court sentenced him, as a habitual felony offender, to life in prison. On appeal, Bell’s counsel filed a no-merit brief, and this Court affirmed Bell’s conviction and sentence in an unpublished memorandum. Bell v. State, (No. CR-00-0393) 837 So.2d 886 (Ala.Crim.App.2001) (table). On May 11, 2001, Bell filed a Rule 32, Ala. R.Crim. P., petition. On that same date, Bell filed a motion to amend his petition and a brief in support of that motion. On September 6, 2001, after the State had responded, the circuit court summarily dismissed the petition. On November 1, 2001, the circuit court denied Bell’s motion to amend his petition. This appeal followed.

In his petition, Bell claimed that his trial counsel rendered ineffective assistance. Specifically, he contended that trial counsel failed to properly object at trial to the chain of custody of the cocaine and that trial counsel failed to properly object to the “the display of the pill bottle which was said to hold the alleged cocaine[;] yet, the cocaine was never shown to the jury as evidence against the Petitioner.” (C. 15.) In the amendment to his petition, Bell claimed that trial counsel had rendered ineffective assistance for failing to object to the enhancement of his sentence under the Habitual Felony Offender Act using a Georgia conviction that had been reduced to a misdemeanor conviction following ha-beas corpus proceedings in Georgia.

In dismissing Bell’s petition, the circuit court stated that Bell could have asserted, but did not assert, those claims on appeal. As for Bell’s claim in the amendment to his petition that his trial counsel rendered ineffective assistance because he allowed Bell’s sentence to be enhanced by use of a misdemeanor conviction, the circuit court noted that Bell did not raise this issue at sentencing, in a motion for a new trial, or on appeal.

On appeal, Bell argues that the circuit court erroneously denied the amendment to his petition and that the circuit court’s summary dismissal of his petition was erroneous.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b) ], or is precluded [under Rule 32.2, Ala. R.Crim. P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings .... ”

Although not precluded by Rule 32.2(a)(5), Ala. R.Crim. P., see Ex parte Ingram, 675 So.2d 863 (Ala.1996), the circuit court’s summary disposition of Bell’s two ineffective-assistanee-of-eounsel claims raised in his petition was nonetheless appropriate.

“[T]o prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test set out by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’
“Id. at 687, 104 S.Ct. at 2064.
“ ‘The performance component outlined in Strickland is an objective one: that is, whether counsel’s assistance, judged under “prevailing professional norms,” was “reasonable considering all the circumstances.” ’ Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). Once a defendant has identified the specific acts or omissions that allegedly were not the result of reasonable professional judgment on counsel’s part, the court must determine whether those acts or omissions fall outside the wide range of professionally competent assistance. Id.
“When reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel’s conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 581 (Ala.Cr.App.1985).
“ ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’
“Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
“And, even if an attorney’s performance is determined to be deficient, the petitioner is not entitled to relief unless it is also established that ‘there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
“In an ineffective assistance of counsel claim, the burden is on the claimant to show that his counsel’s assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).”

McNair v. State, 706 So.2d 828, 839 (Ala.Crim.App.1997).

As for the chain-of-custody claim, Bell claims that there was a break in the chain of custody of the cocaine when the cocaine was in the possession of a police officer before the officer deposited the cocaine with the Department of Forensic Sciences. However, Bell does not argue that an objection to the chain of custody would have been sustained. This Court has held evidence to be correctly admitted even when the chain of custody suffers from a weak or missing link. See, e.g., Shute v. State, 469 So.2d 670 (Ala.Crim.App.1984). Additionally, Bell does not allege any tampering with the cocaine by law enforcement, nor does he allege that the substance he was found in possession of differed in any way from the substance submitted as evidence at trial. See generally Ex parte Jones, 592 So.2d 210, 212 (Ala.1991) (“ ‘The purpose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence.’” (quoting Williams v. State, 505 So.2d 1252, 1253 (Ala.Crim.App.1986))). Therefore, he has pleaded facts insufficient to establish that his trial counsel’s assistance was defective and that he was somehow prejudiced by the alleged deficiency. Because Bell failed to state a claim upon which relief could be granted, summary disposition was appropriate.

As for the claim that the pill bottle was improperly displayed, Bell appears to be arguing that the jury should have been shown the cocaine inside the pill bottle, rather than simply the pill bottle, because “the jury found credibility in the testimony without the evidence.” (C. 22.) This claim is vague. Bell has not shown how his trial counsel’s conduct was deficient or how the outcome of his trial would have been different had his trial counsel ensured that the jury was shown the cocaine in the bottle. Therefore, Bell failed to state a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because Bell-failed to state a claim upon which relief could be granted, summary disposition of this claim was appropriate.

Bell’s third claim, however, is problematic. Aside from the ineffective-assistance aspect of the claim, we are also concerned with the possibility that Bell’s sentence is illegal. If Bell’s sentence was enhanced by a prior conviction that either was a misdemeanor at the time of sentencing, or subsequently was commuted to a misdemeanor by virtue of a ruling on a federal habeas corpus petition, that prior conviction, if it is indeed a misdemeanor, cannot legally be used to enhance his sentence under the Habitual Felony Offender Act.

We remand this cause to the circuit court because the allegations in Bell’s pleadings, undisputed by the State, are sufficient to demonstrate that he is entitled to relief if they are true. See Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985) (holding that when a petition contains claims that, if true, would entitle the petitioner to relief, further proceedings are warranted), and Chaverst v. State, 517 So.2d 643, 644 (Ala.Crim.App.1987) (holding that, when the State does not refute a petitioner’s allegation, the unrefuted statements must be taken as true). If Bell’s sentence was enhanced by a prior misdemeanor conviction, his sentence is illegal. “Matters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994).

Therefore, we remand this cause to the circuit court for it to determine whether Bell is entitled to relief on this claim. The circuit court is to hold an evidentiary hearing, or, in the alternative, take evidence by affidavits, written interrogatories, or depositions as provided in Rule 32.9(a), Ala. R.Crim. P. The circuit court then “shall make specific findings of fact relating to each material issue of fact presented,” as required by Rule 32.9(d). A return to remand consisting of the transcript of the hearing (or a record of the alternative procedure) and the circuit court’s findings of fact shall be filed in this Court within 42 days from the release of this opinion. On remand, the circuit court is authorized to grant Bell whatever relief, if any, is appropriate, including resentencing Bell in accordance with the Habitual Felony Offender Act and with this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur.

BASCHAB, J., concurs in the result.

      . Bell was also convicted of attempting to elude the police. However, he did not contest that conviction or sentence in his Rule 32 petition.

      . Bell was represented by the same attorney at trial and on direct appeal.

      . In its order denying Bell’s motion to amend his petition, the circuit court addressed the fact that the sole contention in the amendment was precluded. Apparently, then, even though it denied Bell's motion to amend his petition, it nonetheless considered the claim.


text:
    Richard PATTERSON v. STATE of Alabama.
    CR-00-2603.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied June 21, 2002.
    Certiorari Denied Sept. 13, 2002 Alabama Supreme Court 1011873.

      George H. Jones, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   COBB, Judge.

On July 13, 2001, Richard Patterson was convicted of criminal possession of explosives, a violation of § 13A-7-44, Ala.Code 1975, and of conspiracy to commit murder, a violation of § 13A-4-3 and § 13A-6-2, Ala.Code 1975. On August 24, 2001, the trial court sentenced him to serve 10 years in prison for the possession-of-explosives conviction and to life imprisonment for the conspiracy-to-commit-murder conviction. On September 10, 2001, Patterson filed a motion for a new trial, and the trial court denied his motion on October 1, 2001. Patterson gave timely notice of appeal.

In December 1999, David Lively, an acquaintance and former coworker of Patterson’s, contacted the Jefferson County SherifFs Department and informed it that Patterson had told him that he wanted to make a bomb to kill his ex-wife. The police began taping Lively’s conversations with Patterson. Lively met with Patterson a few more times, and wore a “wire” to the meetings. The police provided Lively with two military-style blasting caps and other items that could be used to make a bomb, and on December 21, 1999, Lively took those items to a meeting with Patterson. Patterson paid Lively for the items, and the police arrested him at the scene.

I.

First, Patterson argues that the trial court erroneously denied his motion for a judgment of acquittal because, he contends, the State did not prove certain material elements of each offense charged. Specifically, Patterson claims that the State failed to pi;ove (1) the existence of a conspiracy, and (2) that the items in question were explosives as defined by statute. We disagree.

The Alabama Supreme Court addressed the appellate court’s role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978) (emphasis original).”

730 So.2d at 658.

A.

Patterson contends that the trial court erroneously denied his motion for a judgment of acquittal on the conspiracy charge “because one cannot conspire with a police officer and/or agent who does not have the specific intent to commit the crime; to wit: the intent to kill.” (Patterson’s brief, p 3.) We disagree.

Section 13A-4-3, Ala.Code 1975, provides, in relevant part:

“(a) A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.
“(d) It is no defense to a prosecution for criminal conspiracy that:
“(1) The person, or persons, with whom defendant is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or is immune from prosecution, or
“(2) The person, or persons, with whom defendant conspired could not be guilty of the conspiracy or the object crime because of lack of mental responsibility or culpability or other legal incapacity or defense.”

We note that all of the cases relied on by Patterson in his brief are either based on federal statutes or the laws of other states, and thus do not apply to the statutory construction and interpretation of the Alabama statute. Also of importance is that the Alabama statute allows one person to be guilty of conspiracy even if the other person is not culpable.

In Zumbado v. State, 615 So.2d 1223 (Ala.Crim.App.1993), this Court stated:

“ ‘The elements of conspiracy are: first, the specific intent that a crime be performed; second, an agreement with another person to engage in or cause that crime to be performed; and third, the commission of an overt act by one of the conspirators in furtherance of the conspiracy.’ Greer v. State, 563 So.2d 39, 40 (Ala.Cr.App.1990).”

615 So.2d at 1242.

Based on § 13A-4-3(d)(l), Ala. Code 1975, it is not a defense to Patterson that Lively, acting as an informant for the police, was immune from prosecution. Similarly, § 13A-4-3(d)(2), Ala.Code 1975, provides that it is not a defense that Lively did not have the intent to actually kill Patterson’s ex-wife. In Ingle v. State, 405 So.2d 56 (Ala.Crim.App.1981), this Court held:

“Subsection (d)(2) of [§ 13A-4-3, Ala. Code 1975] provides the answer to appellant’s argument that he could not be guilty of conspiracy with [the informant] because the latter was an informer without criminal intent. The statute specifically rejects the notion that it is a defense to a conspiracy charge that the person with whom the defendant agreed had no mental culpability.”

405 So.2d at 58.

The State presented evidence indicating that Patterson: (1) intended to kill his ex-wife; (2) entered into an agreement with Lively to obtain explosive devices suitable for lulling her; and (3) did in fact take delivery of explosives and other materials from Lively and pay Lively for those items.

Thus, based on the legal principles set forth above, the State presented evidence, if believed by the jury, legally sufficient for the jury to find Patterson guilty of conspiracy. The trial court did not err in denying Patterson’s motion for a judgment of acquittal on the charge of conspiracy to commit murder.

B.

Patterson argues that the trial court erroneously denied his motion for a judgment of acquittal on the charge of criminal possession of explosives on the grounds that the State failed to prove that the items he possessed were explosives. Specifically, Patterson contends that the blasting caps and timer were merely detonators, not explosives. We disagree.

Section 13A-7-40(2), Ala.Code 1975, defines explosives as follows:

“Any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packing that an ignition by fire, by friction, by concussion, by detonator or by chemical action of any part of the compound or mixture may cause a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on contiguous objects or of destroying life or limb.”

The evidence presented at trial, viewed in a light most favorable to the prosecution, showed that two military blasting caps and a timing device with conducting wire were among the items seized from Patterson. After the items were photographed as evidence, the caps were taken to the police firing range and detonated. The commanding officer of the bomb squad testified that the blasting caps were detonated in a metal can to demonstrate the metal-fragmentation effect that resulted from the detonation. A battery was placed in the timer, the timer was attached to one of the caps, the timer was set, the cap was placed in a metal can, and the cap detonated when the timer ran down. The bottom of the metal can was blown off by the explosion. The same process was repeated with the second cap. Both explosions were videotaped; the videotape was played for the jury.

In Farris v. State, 432 So.2d 538, 540 (Ala.Crim.App.1983), Farris “was observed holding a two liter plastic soft drink bottle in one hand and a cigarette lighter in the other hand. The bottle contained gasoline. A paper towel ‘rolled up’ and saturated with gasoline (‘that was used for a wick’) was ‘stuffed down into’ the top of the bottle.” This Court held that “[t]he plastic container filled with gasoline and provided with a paper towel wick was an ‘explosive’ within the meaning of [§ 13A-7-40(2), Ala. Code 1975].” Id. Patterson argues that the blasting caps are analogous to the paper towel wick in Farris, not to the gasoline-filled container, and therefore would not, alone, constitute an explosive under the statute. We do not agree with Patterson’s comparison.

Without more, a gasoline-soaked paper towel does not cause the type of explosion described in § 13A-7-40(2), Ala.Code 1975. The mere igniting of a paper towel is not likely to produce the “destructive effects on contiguous objects or of destroying life or limb” as defined in the statute. However, the evidence here tended to show that the blasting caps themselves were explosives as defined by statute. The police ignited the blasting caps in metal cans. The resulting damage to the metal cans, coupled with the testimony of the commanding officer of the bomb squad, demonstrated the type of explosion and destructive effects contemplated by the statute. Therefore, a more accurate comparison would be to compare the timer to the paper towel wick, and the blasting cap to the plastic container filled with gasoline. In other words, the blasting caps, like the gasoline-filled container in Farris, swpra, were explosive devices within the definition of the statute.

Based on a review of the record, the State presented sufficient evidence that the blasting caps were explosives. The trial court did not err in denying Patterson’s motion for a judgment of acquittal on the charge of criminal possession of explosives.

II.

Next, Patterson claims that the trial court erred by denying his motions for a mistrial. We disagree.

“A motion for a mistrial is a drastic remedy that should be used only to prevent manifest injustice. The ruling of the trial court on the motion will not be reversed unless there is a clear showing of abuse of discretion.” Smith v. State, 745 So.2d 284, 292-93 (Ala.Crim.App.1998) (citations omitted). “When an accused contends that a prosecutor has made improper comments, the comments at issue must be viewed in the context of the entire opening statement.” Proctor v. City of Prattville, 830 So.2d 38, 42 (Ala.Crim.App.2001) (citing Frazier v. State, 758 So.2d 577, 602 (Ala.Crim.App.1999)). See also Mason v. State, 768 So.2d 981, 991 (Ala.Crim.App.1998)(prosecutor’s comment “cannot be viewed in isolation, but rather should be viewed in the context in which it occurred”), aff'd, 768 So.2d 1008 (Ala.2000).

A.

Patterson contends that the trial judge erroneously denied his motion for a mistrial based on the prosecutor’s reference to the bombing of the Sixteenth Street Baptist Church in Birmingham during voir dire. We disagree.

During voir dire, the prosecutor referenced the Sixteenth Street Baptist Church bombings. Following voir dire and before the jury was struck, the trial court heard motions by Patterson and the State. During the motion hearing, the following exchange occurred:

“The Court: There was a side-bar that we had off the record that I said I would give you a chance to get your objection on record. So go ahead.
“[Defense Counsel]: Your Honor, I’m going to move for a mistrial, Judge. The prosecution brought up the most infamous case in this town, the 16th Street bombing case. Not only did they bring it up, they said the facts are similar, which was totally improper. This jury is tainted, Judge. They’re already now thinking this is the 16th Street bombing case all over again, and we all well know that that defendant was found guilty. So I don’t think we can go forward now with this jury.
“The Court: Well, I’m going to overrule you. When we had our little sidebar, I told [the Prosecutor] not to go any further in it. She didn’t. I don’t think that the jury has been tainted by the remarks or the questions or the context of the questions that she asked. So I’ll overrule that.
“[Defense Attorney]: I’ll respect that, Your Honor, with an exception.”

(R. 16-17.)

The trial court instructed the prosecutor to refrain from the line of questioning, and she did not refer to the matter after that point. Based on our review of the record, we find no abuse of discretion by the trial court in denying the motion for a mistrial. See Proctor v. City of Prattville, 830 So.2d at 42 (“we cannot say from our limited review of the record that the trial court abused its discretion in denying the motion for a mistrial”). Thus, Patterson is not entitled to any relief on this claim.

B.

Patterson also claims the trial judge erroneously denied his motion for a mistrial based on the prosecutor’s comment “If he wants to argue entrapment, he’s got to admit that his client is guilty.” (Patterson’s brief, p. 35; R. 329-30.) We disagree.

During cross-examination, Patterson questioned one of the police officers about the lack of fingerprints found on the purchase money and questioned whether Patterson had actually ever handled the money. The following exchange occurred:

“[Prosecutor]: Judge, I’m going to object. If he wants to argue entrapment, he’s got to admit that his client is guilty.
“The Court: Okay. Let’s just state your objection.
“[Defense counsel]: Your Honor, I don’t have to admit my client is guilty of anything, and I respectfully ask to approach, Judge.
“The Court: No. You two are not going to argue among yourselves. If you have an objection, state your grounds and objection.
“[Prosecutor]: Judge, I’m going to object, because it’s irrelevant if he wants to use an entrapment defense of whether there was fingerprints or anything. And that’s my objection.
“[Defense counsel]: That’s exactly what I’m getting to you [sic], Your Hon- or.
“The Court: Wait a second. I’m going to overrule your objection. Now ask your next question.
“[Defense counsel]: Your Honor, can I approach?
“The Court: Yes.
“(Side-bar conference, off the record.)
“The Court: Let’s just go back in my office.
“(In chambers conference.)
“The Court: Before we get started, [court reporter], can you go back and read me exactly what it was that [the prosecutor] said when he got up to speak just now?
“(Requested portion of record read.)
“The Court: Go ahead. State your objection.
“[Defense counsel]: Your Honor, for them to sit there — for him to have said in front of that jury that if I’m going to argue an entrapment defense that I’ve got to admit this man is guilty has tainted this jury. I’m asking for a mistrial right now. There is no way this case can continue with him having that planted in their head. There’s no way.
“[Prosecutor]: Judge, may I briefly respond? I know I got excited, and I apologize, but I’m talking strictly from a legal standpoint. And the reason I said that is because there is extensive case-law which we plan to present to the Court that it says black letter law, in order to claim entrapment, the defendant must admit his guilt or the commission of the crime. It’s just like a self-defense argument. They must admit I’m the one who shot him and yeah, he’s dead, but I had a reason. It’s the exact same thing in entrapment. That’s the black letter law that I plan to present to this court.
“Amd that’s what it says, quote, unquote, the defendant must admit — in order to claim the defense of entrapment, he must admit guilt of the commission of the offense. And now he’s misleading the jury saying he didn’t do this. But he can’t have it both ways to sit and talk about bait and entrapment, and all of a sudden come in here and say well, there’s no fingerprints, he never gave him the money. That’s misleading the jury, and that’s why I made that objection.
“But that’s what the caselaw says. It’s not me. That’s a legal argument of what the caselaw says. And my objection was him continuously misleading this jury. And that was the reason I said that. Not to say that he has to say he’s guilty or anything in that sense.
“[Defense counsel]: Well, Your Hon- or, and I think you’ll agree with me that if he wanted to bring any caselaw here, that was to be presented to you and for you to issue the instruction of the law, and not for it to be done during a stated objection.
“Now, Judge, two elements of entrapment: Number one, he was set up. Number two, he was predisposed to do it. In other words, he had it had [sic] in his head to begin with. Those are the two elements of entrapment.
“Now, me asking him if Ricky Patterson’s fingerprints were anywhere on the money, if they are on the money, then Ricky Patterson has given this guy money. If they are not on there, who’s to say it’s not a deliberate setup by Mr. Lively, because nobody else’s fingerprints are on there but Mr. Lively’s. The point is this, that if the jury now is thinking that my client is automatically guilty, because I’m going to get up and argue an entrapment defense. This case can’t go on. I ask for a mistrial.
“The Court: Well, you have been arguing an entrapment defense from the very first.
“[Defense Counsel]: Absolutely, Judge.
“The Court: And that is inherent in an entrapment defense. You’re saying that your person did it and that he didn’t do it on his own, he was coerced or induced into doing it, and he had a predisposition for it is basically what you’re saying. I’m going to overrule you. But, Mr. [Prosecutor], don’t do that again.
“[Prosecutor]: Yes, Your Honor.
“The Court: Don’t get up and make statements like that.”

(R. 329-34.)

“The defense of entrapment is generally not available to a defendant who denies the act for which he was indicted.” Harris v. State, 794 So.2d 1214, 1217 (Ala.Crim.App.2000) (citing Lambeth v. State, 562 So.2d 575, 578 (Ala.1990)).

“ ‘ “Entrapment occurs when state officers or persons under their control incite, induce, lure, or instigate a person into committing a criminal offense, which that person would not have otherwise committed, and had no intention of committing.” ’ Wright v. State, 494 So.2d 936, 938 (Ala.Cr.App.1986) (quoting Geckles v. State, 440 So.2d 1189, 1191 (Ala.Cr.App.1983))....
“ ‘ “Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by the one who had the criminal intent.” ’ Wright v. State, 494 So.2d 936, 939 (Ala.Cr.App.1986) (quoting Jackson v. State, 384 So.2d 134, 139 (Ala.Cr.App.1979))”

Harris v. State, 794 So.2d at 1218.

In C.D.C. v. State, 821 So.2d 1021 (Ala.Crim.App.2001), this Court stated:

“ ‘ “A two-step test is used under the subjective approach: the first inquiry is whether or not the offense was induced by a government agent; and the second is whether or not the defendant was predisposed to commit the type of offense charged. A defendant is considered predisposed if he is ‘ready and willing to commit the crimes such as are charged in the indictment, whenever opportunity was afforded.’ If the accused is found to be predisposed, the defense of entrapment may not prevail. The predisposition test reflects an attempt to draw a line between ‘a trap for the unwary innocent and the trap for the unwary criminal.’ The emphasis under the subjective approach is clearly upon the defendant’s propensity to commit the offense rather than on the officer’s misconduct.” (Footnotes omitted.)’
“Davis v. State, 570 So.2d 791, 793 (Ala.Crim.App.1990). See also Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (Cr.1973).”

821 So.2d at 1026.

The prosecutor’s comment, though maybe not well-advised, was not improper. He explained his reasoning to the trial judge during the conference in the judge’s chambers. Taken in context, the comment does not appear to have been an attempt to inflame the jury. We find no abuse of discretion in the trial court’s denying Patterson’s motion for a mistrial. Patterson is not entitled to any relief because his claim is without merit.

III.

Finally, Patterson contends that the principles barring double jeopardy prevent him from being convicted for both conspiracy to commit murder and criminal possession of explosives arising from the same occurrence or transaction. We disagree.

The “same elements” test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), considers whether each offense “requires proof of an additional fact which the other does not.”

Conspiracy to commit murder requires an agreement with another to cause the unlawful death of another person and an overt act in furtherance of that agreement. Criminal possession of explosives requires that one possess, manufacture, buy, sell, or transport any explosive and intend that explosive be used in a crime.

Each of these crimes requires additional elements not present in the other. See e.g., Williams v. State, 830 So.2d 45 (Ala.Crim.App.2001). Criminal possession of explosives does not require an agreement with another. Nor does it require the intent to kill another person.

Therefore, because his claim is without merit, Patterson is not entitled to any relief.

For the aforementioned reasons, Patterson’s convictions and sentences are due to be affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Patterson raised these claims as separate issues I and V in his brief. To avoid repetition, we have addressed them together in Part I of this opinion.

      . Patterson raised this as separate issues II and III in his brief to this Court. To avoid repetition, we have addressed those issues together as Part II of this opinion.

      . The reference was to the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham during the civil rights struggle. Four young black girls were killed.

      . Voir dire was not made a part of the record on appeal, so it is unclear exactly what the prosecutor said.


author: PER CURIAM. PARIENTE, J.,

text:
    Michael ANDERSON, Petitioner, v. Cathy ANDERSON, Respondent.
    No. SC00-59.
    Supreme Court of Florida.
    Jan. 9, 2003.
    Rehearing Denied May 6, 2003.
    Catherine M. Catlin and Raymond T. Elligett, Jr. Of Schropp, Buell & Elligett, P.A., Tampa, FL, for Petitioner.
    Thomas D. Casper, Tampa, FL, for Respondent.
    Thomas E. Warner, Solicitor General, and T. Kent Wetherell, II, Deputy Solicitor General, Tallahassee, FL, for the Attorney General and the State of Florida, Amicus Curiae.
   PER CURIAM.

We have for review Anderson v. Anderson, 746 So.2d 525 (Fla. 2d DCA 1999), which certified conflict with the opinion in DeRico v. Wilson, 714 So.2d 623 (Fla. 5th DCA 1998). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons expressed in this opinion, we approve the result of the decision below.

This is another case requiring the Court to define the law regarding a child support obligation of a husband who is not the biological father of the child. The narrow issue for our review concerns the proper application of Florida Rule of Civil Procedure 1.540 to the facts of the present case. In February of 1994, Michael and Cathy Anderson were married when Cathy was already pregnant. In October of 1995, Cathy petitioned for dissolution, about a year and a half after the child was born. An amended final judgment of dissolution of marriage was entered in December 1996, wherein Michael was ordered to pay child support. Without court order, Michael subsequently submitted himself and the child for DNA testing. The results of the DNA test excluded Michael as the biological father. In May of 1997, Michael filed a motion, pursuant to Florida Family Law Rule 12.540, for relief from the dissolution judgment and his duty to pay child support. Michael argued in his motion that Cathy had misrepresented that the child was his. The case proceeded to an evidentiary hearing before a general master.

The following facts were revealed during the evidentiary hearing. At some point during the divorce proceeding, Michael received a call from Cathy’s sister, who pointed out to Michael that Cathy, unbeknownst to Michael, was involved in a previous marriage. Michael confronted Cathy regarding this information, but Cathy denied having been married before. Michael, however, had already secured a copy of the marriage certificate, so he knew Cathy was lying. Michael proceeded to ask Cathy whether he was the father of the child, and she answered “yes.” Michael testified that despite this encounter and learning that Cathy was untruthful about the previous marriage, he still had no doubt that he was the father of the child. He testified that the first time he had any doubt was when he received the results of the DNA test. Cathy testified that she did not have a sexual relationship with anyone other than Michael during the time that the child was conceived.

The general master did not admit the DNA test into evidence. The general master concluded that the test was only relevant if Michael could first establish that Cathy had committed fraud or misrepresentation. In his final report, the general master concluded that Michael “failed to prove by a preponderance of the evidence that he had been defrauded into believing that the minor child was his.” The general master stated that “no evidence was adduced that [Cathy] knew, when she first told him of the pregnancy, that he was not the father of the child.” Finally, the general master concluded that all of the information which led Michael to have a suspicion regarding his paternity was known at the time that the dissolution proceeding was pending, and that no information came to him after the amended final judgment was entered that he did not know before it was entered. The general master pointed out that even though Michael testified that he had no doubt that the child was his, he obviously had some suspicion or he would not have obtained the DNA test. The circuit court adopted the report of the general master and the Second District Court of Appeal affirmed, concluding that the divorce decree established paternity and is res judicata in future proceedings. See Anderson v. Anderson, 746 So.2d 525 (Fla. 2d DCA 1999). The district court certified conflict with DeRico v. Wilson, 714 So.2d 623 (Fla. 5th DCA 1998).

In D.F. v. Department of Revenue, 823 So.2d 97 (Fla.2002), this Court recently held that a final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity and any challenge to this determination must be brought under the provisions of rule 1.540. Consistent with D.F., in order to challenge paternity in the present case, Michael was required to comply with rule 1.540. Although Michael filed his challenge within the one-year window provided by rule, the general master determined that Michael had failed to establish that he was defrauded by Cathy. There is competent, substantial evidence in the record to support this conclusion. Cf. Garcia v. Garcia, 743 So.2d 1225 (Fla. 4th DCA 1999) (“Where a general master has been appointed for fact-finding and to recommend disposition of pending issues, the trial court is bound by the general master’s factual findings unless they are not supported by competent substantial evidence or are clearly erroneous.”). Accordingly, we approve the result of the decision below.

It is so ordered.

WELLS and QUINCE, JJ., and HARDING, Senior Justice, concur.

ANSTEAD, C.J., concurs in result only.

PARIENTE, J., dissents with an opinion, in which, LEWIS, J., concurs.

SHAW, Senior Justice, dissents.

PARIENTE, J.,

dissenting.

I dissent because I conclude that Cathy Anderson’s unequivocal, affirmative response to Michael Anderson that the child was his constituted a misrepresentation under Florida Rule of Civil Procedure 1.540(b)(3), as incorporated in Florida Family Law Rule of Procedure 12.540. In light of this affirmative misrepresentation, it was error to refuse to set aside the final judgment of dissolution in this case based on his timely filed postjudgment motion.

Unlike the petitioner in D.F. v. Department of Revenue, 823 So.2d 97 (Fla.2002), Michael’s challenge to paternity in this case was properly brought as a post-judgment action within the one-year window set forth in rule 1.540(b). Michael timely filed his motion seeking relief from the dissolution judgment and his duty to pay child support in May of 1997, only five months after the final judgment. Michael argued in his motion that Cathy misrepresented that the child was his.

Rule 1.540(b)(3) does not limit relief to instances of “fraud,” but includes “misrepresentations, or other misconduct of an adverse party.” In contrast to rule 1.540(b)(2), which pertains to “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing,” subdivision (b)(3) does not specify a due diligence component. Fla. R. Civ. P. 1.540(b)(2)-(3) (emphasis supplied).

The undisputed facts are that prior to the marriage, Cathy affirmatively represented to Michael that he was the father of her child. After Cathy filed for divorce, she again affirmatively stated that the child was his in response to a direct question by Michael. The majority focuses on the fact that Michael should have been suspicious because of Cathy’s untruthful answers about whether she had been previously married. However, a father should be able to rely on the unequivocal, affirmative representations of his wife that he is the father of her child, and should not be obligated to request DNA testing during the divorce action to disprove this presumed fact. If Michael had made a formal request for admissions and Cathy had admitted that he was the father the child, Michael would have every right to rely on this formal admission. I see no practical difference between that hypothetical situation and the facts in this case.

It appears that the general master and the trial court determined that Cathy did not engage in fraud or misrepresentation because “no evidence was adduced that [Cathy] knew, when she first told him of the pregnancy, that he was not the father of the child.” Majority op. at 871. In fact, the majority references Cathy’s testimony that “she did not have a sexual relationship with anyone other than Michael during the time the child was conceived.” Id. However, we cannot ignore the facts of life, and clearly Cathy had at least one other sexual partner at the time of conception. Simply put, her answer was deceptive and constituted an actionable misrepresentation.

Moreover, this is not a case of “don’t ask, don’t tell.” Cathy affirmatively told Michael not once, but twice that he was the father of the child. Unless this Court establishes as an unequivocal rule that there must be a DNA test in every dissolution of marriage proceeding, which the Court has yet to mandate, I would conclude that a husband who asks his wife a direct question as to the child’s paternity has the right to rely on the affirmative response of his wife that he is the child’s father.

I thus disagree with the result reached by the majority because I conclude that there was no competent, substantial evidence to support the trial court’s refusal to set this judgment aside. Cathy’s unequivocal, affirmative answer in response to Michael’s question of whether he was the child’s father constituted a misrepresentation under rule 1.540(b)(3), entitling Michael to set aside the final dissolution judgment in this case.

As I stated in my concurrence in D.F., 823 So.2d at 101-03, this area of the law involves complex policy issues and many differing factual patterns. In my view, however, in this case the issue is straightforward. The existing procedural rules require that Michael’s child support obligation should be set aside in light of the fact that the child he has been ordered to • support is not his and he acted in a timely manner in moving to set the child support order aside.

LEWIS, J., concurs.

      . Florida Family Law Rule of Procedure 12.540, entitled “Relief From Judgment, Decrees, or Orders,” provides that "Florida Rule of Civil Procedure 1.540 shall govern general provisions concerning relief from judgment, decrees, or orders, except that there shall be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases."

      . Rule 1.540, entitled “Relief From Judgment, Decrees, or Orders,” states in relevant part:
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore de

        nominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
      (Emphasis added.)

      . Rule 1.540(b), entitled "Relief From Judgment, Decrees, or Orders,” states in relevant part:
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
      (Emphasis supplied.)


author: PER CURIAM. SHAW, Senior Justice,

text:
    THE FLORIDA BAR, Complainant, v. Albert A. RAPOPORT, Respondent.
    No. SC01-73.
    Supreme Court of Florida.
    Feb. 20, 2003.
    Rehearing Denied May 6, 2003.

      John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; R. Lee Bennett, Chair, Standing Committee on Unlicensed Practice of Law, Tallahassee, FL; Lori S. Holcomb, Unlicensed Practice of Law Director, The Florida Bar, Tallahassee, FL; and Janet Bradford Morgan, Bar Counsel, Fort Lauderdale, FL, for Complainant.
    Ainslee R. Ferdie of the Law Offices of Ainslee R. Ferdie, Coral Gables, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report finding as a matter of law that respondent, Albert A. Rapoport, engaged in the unlicensed practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.

Rapoport is licensed to practice law in Washington, D.C. He is a member in good standing of the bars of the Supreme Court of the United States and the District of Columbia Court of Appeals. He is not a member of The Florida Bar.

The Bar filed its petition for an injunction in January 2001, claiming that Rapoport was engaged in the unlicensed practice of law (UPL) because he (1) represents parties in Florida in securities arbitration proceedings by entities such as the American Arbitration Association, the National Association of Securities Dealers, and the New York Stock Exchange; and (2) advertises his securities arbitration services in the Fort Lauder-dale Sun-Sentinel. The Court issued an order to show cause on January 29, 2001. Rapoport responded to the order to show cause. Although it appeared to the Court at that time that Rapoport admitted the material allegations in The Florida Bar’s petition, the Court referred the matter to a referee for determination of any questions of fact. See R. Regulating Fla. Bar 10 — 7.1(b)(6).

After discovery was propounded by both parties, including the Bar’s request for admissions, the Bar filed a motion for summary judgment, alleging that there were no material facts in dispute. The referee granted summary judgment, making the following findings of undisputed facts: Ra-poport (1) is not a licensed Florida attorney; (2) operates a law practice in Florida and represents persons in securities arbitration matters; (3) advises clients about the legal merits of their securities arbitration claims; (4) prepares, signs, and files securities arbitration claims for his clients; (5) represents his clients in securities arbitration proceedings; (6) offers advice and representation to stockbrokers defending claims in securities arbitration; and (7) has, in the past, advertised in the Sun-Sentinel his availability to represent persons in securities arbitration proceedings.

Based on these findings of fact, the referee concluded that (1) Rapoport is a non-lawyer in Florida and cannot operate a law practice or engage in the general practice of law in Florida; (2) Rapoport has engaged in the practice of law by giving legal advice and consultation to clients, by drafting, signing, and filing securities arbitration claims for clients, and by representing clients in securities arbitration proceedings; (3) no federal or state law authorizes Rapoport as a nonlawyer to provide legal services and advice in securities arbitration matters; (4) Florida maintains its substantial interest and authority to prohibit UPL to protect the public; (5) Rapoport has advertised his availability to represent parties in securities arbitration proceedings; and (6) Rapoport has engaged in UPL and is subject to injunction.

Rapoport does not contend that any of these material facts are in dispute. Rather, Rapoport claims that the Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2000), (FAA) preempts state law and that Florida has no authority to forbid an attorney from acting in Florida for parties in federal securities matters.

In Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), the United States Supreme Court, although acknowledging Florida’s substantial interest in regulating the practice of law within the state, held that Florida could not enjoin a nonlawyer registered to practice before the U.S. Patent Office from preparing and prosecuting patent applications in Florida because a federal statute and Patent Office regulations authorized the practice. Rapoport provides a long list of federal cases concerning securities arbitration that involve preemption of state law by the FAA. None of the cases, however, concerns the authorization of the practice of law in securities arbitration proceedings.

Florida Bar re Advisory Opinion on Nonlawyer Representation in Securities Arbitration, 696 So.2d 1178 (Fla.1997), is directly on point. In that case, this Court held that it was unlicensed practice of law for nonlawyers in securities arbitration proceedings to give specific legal advice and perform the traditional tasks of the lawyer at arbitration proceedings. Rapo-port admittedly has engaged in the traditional tasks of the lawyer—giving of legal advice, preparing and submitting claims, representing clients in proceedings, advertising his ability to represent clients—in securities arbitration proceedings in Florida. He is a nonlawyer in Florida under Rule Regulating the Florida Bar 10-2.1(c), which provides in pertinent part:

For purposes of this chapter, a nonlaw-yer or nonattorney is an individual who is not a member of The Florida Bar. This includes, but is not limited to, lawyers admitted in other jurisdictions, law students, law graduates, applicants to The Florida Bar, disbarred lawyers, and lawyers who have resigned from The Florida Bar.

As a nonlawyer, Rapoport is not authorized to practice law in Florida.

Although Rapoport does not point to any material issues that are in dispute, he claims that the referee erred in entering summary judgment without holding a hearing. He points to the language of Florida Rule of Civil Procedure 1.510(c), which provides that a motion for summary judgment “shall be served at least 20 days before the time fixed for hearing.”

We previously have held that a referee in a UPL case has the authority to enter summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Florida Bar v. Miravalle, 761 So.2d 1049, 1051 (Fla.2000). Furthermore, the standard of review on summary judgment orders is de novo. See Florida Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001). Lastly, we are aware that rule 1.510(c) has been interpreted to require hearings on motions for summary judgments. See Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992).

We deem it unnecessary to reach the issue of whether rule 1.510(c) mandates a hearing before summary judgment may be entered in a civil proceeding if there has been adequate notice and an opportunity to be heard, and the party opposing the summary judgment has failed to show that there are any material issues in dispute. Unlike other proceedings, this Court has original jurisdiction over petitions against the unlicensed practice of law. See R. Regulating Fla. Bar 10-1.1. The Court does not automatically refer UPL petitions to referees. Referral to a referee is made only if the respondent raises issues of disputed fact after we have issued an order to show cause. See R. Regulating Fla. Bar 10-7.1(b)(6) (“The court may, upon its motion or upon motion of any party, enter a judgment on the pleadings or refer questions of fact to a referee for determination.”).

In this case, as noted above, referral to a referee was made after a response was filed because it appeared that Rapo-port may have been asserting some disputed issues of fact. However, in the proceedings before the referee, and in the multiple pleadings filed with this Court, including Rapoport’s initial brief and reply brief, Rapoport has failed to demonstrate the existence of even a single disputed fact—much less a material one. Accordingly, Rapoport had no right to even have a referee hear The Florida Bar’s petition against the unlicensed practice of law unless there were disputed issues of material fact. Once Rapoport filed his response to our order to show cause, this Court had the discretion to enter judgment on the pleadings or to refer questions of fact to a referee. See R. Regulating Fla. Bar 10-7.1(b)(6). Because there are no disputed issues of material fact raised by Rapoport, the referee’s decision not to hold a hearing before entering summary judgment in this case was proper.

Rapoport received both notice and an opportunity to be heard before this Court. There are no material issues of disputed fact, and based on Rapoport’s admissions that he is engaged in representing parties in securities arbitration in this state we conclude that, as a matter of law, Rapoport is engaged in the unlicensed practice of law.

Rapoport also objects to the referee’s recommended assessment of costs in the amount of $530.40. Rule Regulating the Florida Bar 10 — 7.1(d)(2) gives the referee discretion to recommend the assessment of costs, including the investigative costs and court reporter’s fees requested in this action. Rapoport has demonstrated no abuse of discretion by the referee. Therefore, we approve the assessment of costs as recommended.

Accordingly, respondent, Albert A. Ra-poport, is hereby enjoined from engaging in the practice of law in Florida, including specifically the representation of parties in securities arbitration proceedings in this state, until he is duly licensed to practice law in Florida. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300, for recovery of costs from Albert A. Rapoport, in the amount of $530.40, for which sum let execution issue.

It is so ordered.

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

SHAW, Senior Justice, dissents with an opinion, in which QUINCE, J., concurs.

SHAW, Senior Justice,

dissenting.

I respectfully dissent because I believe that there was a violation of Rapoport’s constitutional right to due process. As Florida courts have consistently recognized, due process entitles a litigant to notice and an opportunity to be heard.

While representing himself, Rapoport requested that the referee continue his case since he had undergone three-vessel coronary artery bypass surgery, was still suffering from cardiac arrhythmias, and was under instructions from his doctor to avoid all undue stress. A copy of his doctor’s instructions was attached to the motion. When his request for a continuance was denied, Rapoport asked that the referee reconsider his decision and permit him an opportunity to recover from his surgery so that he could “fully and properly prepare his response” to the Bar’s motion for summary judgment. He asserted that there were material issues of fact in dispute and that he should be available in approximately one month. The referee denied this motion and five days later issued an order granting summary judgment in favor of the Bar.

The decision to grant or deny a motion for continuance is a matter of discretion that will normally not be disturbed. In this instance, however, where it was asserted that there were material issues of fact to be resolved and a continuance was requested because of serious medical problems, I feel that it was an abuse of discretion to deny the continuance and grant summary judgment without giving Rapo-port a meaningful opportunity to respond.

The majority opinion concludes that Ra-poport is not entitled to relief because he received “both notice and an opportunity to heard before this Court.” I do not believe that this constitutes a sufficient remedy. As noted above, Rapoport was not given an opportunity to submit disputed factual issues before the referee, and there are no provisions which permit him to present such disputed factual issues before this Court.

The majority opinion relies heavily on the fact that the referee’s findings of fact were based on Rapoport’s own admissions. A litigant’s right to due process is not forfeited, however, because the most damaging evidence comes from his own confession or admissions. The right to be heard is fundamental, and Rapoport has been denied this right. For the above reasons, I dissent.

QUINCE, J., concurs.

      . The petition also included an allegation that Rapoport formerly advertised as an attorney in Florida on the American Association of Retired Persons website. However, because the Bar did not include that claim in its motion for summary judgment and the referee made no findings as to that claim, we deem it abandoned and have not considered that allegation in our disposition of this case.

      . As "Appendix A” to its motion, the Bar attached this Court’s unpublished order dated April 15, 1999, approving a stipulation for permanent injunction in case no. 94,049, Florida Bar v. Rapoport, 732 So.2d 329 (Fla.1999). According to the stipulation, Rapo-port agreed not to practice law in Florida unless "authorized to do so by state or federal law, statute, rule, regulation, or decision.”

      . The Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2000), was enacted in 1925. See Pub.L. No. 68-401, 43 Stat. 883 (1925). "The Act was designed ‘to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,' and place such agreements 'upon the same footing as other contracts.' ” Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468, 474, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (citations omitted). Securities arbitration agreements are subject to the Federal Arbitration Act. See Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987).

      . See Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Doctor's Associates, Inc. v. Hamilton, 150 F.3d 157 (2d Cir.1998); Ferro Corp. v. Garrison Indus., Inc., 142 F.3d 926 (6th Cir.1998); Olde Discount Corp. v. Tupman, 1 F.3d 202 (3d Cir.1993); Saari v. Smith Barney, Harris Upham & Co., 968 F.2d 877 (9th Cir.1992); David L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London), 923 F.2d 245 (2d Cir.1991); Saturn Distribution Corp. v. Williams, 905 F.2d 719 (4th Cir.1990); Securities Indus. Ass’n v. Connolly, 883 F.2d 1114 (1st Cir.1989); Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282 (9th Cir.1988), overruled by Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931(9th Cir.2001); Cent. Jersey Freightliner, Inc. v. Freightliner Corp., 987 F.Supp. 289 (D.N.J.1997); Morrison v. Colo. Permanente Med. Group, P.C., 983 F.Supp. 937 (D.Colo.1997); Johnson v. Hubbard Broad., Inc., 940 F.Supp. 1447 (D.Minn.1996); Haluska v. RAF Fin. Corp., 875 F.Supp. 825 (N.D.Ga.1994); Medika Int’l, Inc. v. Scanlan Int’l, Inc., 830 F.Supp. 81 (D.P.R.1993); Matter of Management Recruiters Int’l, Inc. and Nebel, 765 F.Supp. 419 (N.D.Ohio 1991); Seymour v. Gloria Jean's Coffee Bean Franchising Corp., 732 F.Supp. 988 (D.Minn.1990); Reed v. Bear, Steams & Co., 698 F.Supp. 835 (D.Kan.1988); Russolillo v. Thomson McKinnon Securities, Inc., 694 F.Supp. 1042 (D.Conn.1988); In re Pate, 198 B.R. 841 (Bankr.S.D.Ga.1996).

      . The dissent asserts that Rapoport’s due process rights were violated when the referee refused to continue the proceedings, even though Rapoport recently underwent heart surgery. The dissent further asserts that there were disputed issues of fact that Rapo-port never had an opportunity to present to the referee. However, a review of the record demonstrates that Rapoport had multiple opportunities to raise factual disputes. The Bar's motion for summary judgment was served by mail on August 17, 2001. Rapo-port’s motion to halt proceedings was signed by him on August 30, raising his recent heart surgery as a basis for the request. Despite the fact that the motion for summary judgment had already been served, he did not raise any issues of fact in dispute that would have provided the referee cause to continue the proceedings. Further, after the referee denied this motion, Rapoport filed a motion to reconsider on September 10, 2001, that only made a bare assertion that there were material issues of fact in dispute, without naming a single specific fact that was in dispute to give the referee a basis to reconsider. Perhaps most significantly, in his numerous pleadings before this Court Rapoport still does not assert that there are material issues of fact in dispute that the referee must resolve. Therefore, Rapoport has had ample opportunity to be heard. His challenge to the Bar’s proceedings is one that involves issues of law and not disputed issues of fact. Hence, his due process rights have not been violated.

      . See, e.g., Florida Bar v. Fredericks, 731 So.2d 1249, 1254 (Fla.1999) ("Accordingly, because Fredericks was made aware of the conduct alleged by the Bar to be unethical and had the opportunity to be heard as to this conduct, there was no violation of due process.”); Florida Bar v. Rubin, 709 So.2d 1361, 1363 (Fla.1998) ("Prior to being found guilty of the charges at issue here, Rubin was afforded appropriate notice and a full opportunity to be heard during the final hearing before the referee. This was sufficient to satisfy the demands of due process.”); see also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 655, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (holding that where appellant was put on notice of disciplinary charges against him and was afforded opportunity to respond to board's recommendation, demands of due process were satisfied); In re McKay, 280 Ala. 174, 191 So.2d 1, 5 (1966) ("An attorney must be accorded due process in ... disciplinary proceedings, and the requirements of due process are met when the attorney is served with charges or specifications reasonably informing him of the charges against him and the attorney is thereafter accorded a hearing with an opportunity to defend.”).

      . The majority opinion seems to suggest that Rapoport, who was proceeding pro se at the time, should have spelled out the disputed issues of fact in his request for a continuance. 1 find this reasoning disingenuous for if Rapo-port was able to formulate his research and submit his issues of disputed fact, then he would not need a motion for continuance at all.

      . Interestingly, after the referee denied both of Rapoport’s requests for a continuance, the referee requested an extension from this Court based on Rapoport’s illness. This Court granted the request and extended the time to file the referee’s report until November 28, 2001.

      . Florida Bar v. Lipman, 497 So.2d 1165, 1167-68 (Fla.1986) ("It is within the sound discretion of the referee, assigned by this Court to preside over a disciplinary proceeding such as this, to grant or deny a motion for continuance. Such a ruling will not be disturbed by this Court absent a clear abuse of discretion.”).

      . See Greene v. Seigle, 745 So.2d 411 (Fla. 4th DCA 1999) (holding that plaintiff's due process rights were violated when the trial court granted a summary judgment motion eight days after it was filed without providing the plaintiff with a sufficient opportunity to be heard); Mondestin v. Duval Fed. Sav. & Loan Ass’n, 500 So.2d 580 (Fla. 4th DCA 1986) (holding that a party against whom a motion for summary judgment is filed is entitled to notice and a meaningful opportunity to be heard).


author: QUINCE, J.

text:
    Ollie James GOAD, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. SC00-785.
    Supreme Court of Florida.
    Feb. 27, 2003.
    Rehearing Denied May 5, 2003.

      Peter M. Siegel and Randall C. Berg, Jr. of Florida Justice Institute, Inc., Miami, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, FL, for Respondent.
   QUINCE, J.

We have for review the decision of the First District Court of Appeal in State Department of Corrections v. Goad, 754 So.2d 95 (Fla. 1st DCA 2000), which certified conflict with Gary v. State, 669 So.2d 1087 (Fla. 4th DCA 1996), and Alberts v. State, 711 So.2d 635 (Fla. 2d DCA 1998). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the First District’s decision and hold that sections 960.293 and 960.297, Florida Statutes (Supp.1994), do not violate the constitutional prohibition against ex post facto laws, nor do sections 960.293 and 960.297 violate the right to substantive due process.

The relevant facts are set forth in the First District’s opinion:

Ollie James Goad has been an inmate in the custody of the Department of Corrections since February 1991. Mr. Goad initiated a civil action against the Department in 1995, for injuries he sustained when he was attacked by another inmate. In response to this claim, the Department filed a motion for a summary judgment and a counterclaim under sections 960.293 and 960.297, Florida Statutes (Supp.1994) to recover the costs of Mr. Goad’s incarceration. Section 960.293 provides that a defendant who is incarcerated for an offense that is neither a capital offense nor a life felony offense is liable to the state in the amount of $50 per day for the costs of incarceration. By the terms of section 960.297, the state may recover these costs for the portion of the offender’s remaining sentence after July 1, 1994, the effective date of the law.
The trial court granted the Department’s motion for summary judgment on the cause of action asserted in the complaint, and Mr. Goad then filed a motion for judgment on the pleadings as to the counterclaim. He argued that the application of section 960.297 would violate the ex post facto clauses of the state and federal constitutions, because the statute was not in effect at the time he committed the criminal offenses resulting in his incarceration. The trial court agreed and held that section 960.297 could not be applied retroactively.

754 So.2d at 96-97. The First District reversed the trial court’s decision, concluding that sections 960.293 and 960.297 “afford civil remedies that are not the equivalent of criminal punishment,” and therefore do not violate the ex post facto clauses of the state and federal constitutions. Id. at 100.

Goad now raises two issues for review: first, whether sections 960.293 and 960.297 of the Florida Civil Restitution Lien and Crime Victims’ Remedy Act (the Act) violate the constitutional prohibition against ex post facto laws; and second, whether these same sections violate the right to substantive due process.

EX POST FACTO CLAIM

Goad claims the Act violates the constitutional ban on ex post facto laws. A law violates the ex post facto clauses of the United States and Florida Constitutions when it increases the punishment for a criminal offense after the crime has been committed. See U.S. Const, art. 1, § 9, cl. 3; U.S. Const, art. 1, § 10, cl. 1; art. I, § 10, Fla. Const. Goad contends the Act is an ex post facto law in that it increases his punishment for a criminal offense which occurred before the law took effect. Because the constitutional prohibition on ex post facto laws applies only to criminal legislation and proceedings, we initially address the nature of the Act. See Wester-heide v. State, 831 So.2d 93, 99 (Fla.2002).

“The categorization of a particular proceeding as civil or criminal ‘is first of all a question of statutory construction.’ ” Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986)). “We must initially ascertain whether the legislature meant the statute to establish ‘civil’ proceedings. If so, we ordinarily defer to the legislature’s stated intent.” Hendricks, 521 U.S. at 361, 117 S.Ct. 2072. When attempting to discern legislative intent, courts must first look at the actual language used in the statute. See Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Here, the Florida Legislature specifically set out its intent in section 960.29:

The Legislature finds that former approaches to the problem of compensating crime victims through restitution have proven inadequate or have been inconsistently applied in many cases. The Legislature also finds that there is an urgent need to alleviate the increasing financial burdens on the state and its local subdivisions caused by the expenses of incarcerating convicted offenders.
(1)To remedy these problems, consistent with the preservation of all citizens’ constitutional rights, the Legislature intends:
(a) To provide a legal mechanism, in the form of a civil restitution lien, that will enable crime victims, the state, and other aggrieved parties to recover damages and losses arising out of criminal acts. The civil restitution lien shall be imposed against the real and personal property owned by the convicted offender who has committed an offense causing such damages and losses.
(b) To prevent convicted offenders from increasing their assets after conviction, while their crime victims and the state and local subdivisions remain uncompensated for their damages and losses. To further this legislative purpose, the civil restitution lien shall attach not only to the offender’s current assets but also, should these assets fail to satisfy the lien, to any future assets or “windfall” proceeds which may accrue to the defendant, up to the full amount of the lien.
(c) To provide a schedule of liquidated damages, based on the type of crime committed, in order to facilitate swift and uniform determinations of the amounts of civil restitution liens, and to facilitate judicial convenience in entering restitution lien orders. To further these legislative purposes, a schedule of liquidated damages, based on the type of crime committed, shall be employed to assess the amounts of civil restitution liens. The schedule of liquidated damages shall also serve to ensure that the amount of each civil restitution lien bears a rational relation to the amount of actual damages incurred as a result of the crime.
(d)To impose a long-term civil liability for the costs of incarceration, by means of the civil restitution lien, against a convicted offender, regardless of the offender’s financial status at the time of conviction.
(2) The Legislature also finds that crime victims, the state, and its local subdivisions are entitled to rough remedial justice and they may demand compensation for damage and losses.
(3) The Legislature declares that:
(a) The intent of the statute is rationally related to the goal of fully compensating crime victims, the state, and its local subdivisions for damages and losses incurred as a result of criminal conduct.
(b) This act rests upon the principle of remediation and not punishment, which is meted out by criminal sanctions afforded by law.
(4) The Legislature recognizes that, in many individual cases, the liquidated damage amount provided does not fully compensate crime victims for their actual damages and losses. It is the legislative intent that the liquidated damages authorized in this act bear a rational relation to the damages and losses a crime victim incurs as a result of a convicted offender’s conduct, and the state and its local subdivisions incur as a result of implementation of a convicted offender’s sentence.

§ 960.29, Fla. Stat. (Supp.1994). The plain language of this statute clearly sets forth the Legislature’s intent to afford a civil remedy to address the State’s need to recover the incarceration costs of convicted offenders. Nothing on the face of the statute suggests otherwise.

While “the civil label is not always dispositive,” the Legislature’s stated intent should only be rejected where the challenging party presents “ ‘the clearest proof that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil.” Allen, 478 U.S. at 369, 106 S.Ct. 2988 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). See also Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (noting that “ ‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty”). We find that Goad has failed to present the proof necessary to meet this burden, and base our decision on a review of seven factors used by the Supreme Court to decide whether a statute is so punitive as to transform what was intended as a civil remedy into a criminal penalty.

In determining whether a civil statute is in reality punitive in nature, we must consider: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Hudson, 522 U.S. at 99-100, 118 S.Ct. 488 (relying on Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Goad concedes that factors (1), (6), and (7) point to the civil nature of the Act, and we agree. Also, the sanction in this case does not come into play on a finding of scienter, and although the potential imposition of a lien may have some deterrent effect, the Supreme Court has recognized that “all civil penalties have some deterrent effect,” and “deterrence may serve civil as well as criminal goals.” Hudson, 522 U.S. at 102, 105, 118 S.Ct. 488. The sanction applies to a convicted offender’s status as an inmate, not to a particular behavior that is already a crime. Finally, the statute does not seek recovery beyond the government’s actual costs of incarceration. See Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1373 (Fla.1998) (finding the amount of $50 per day to be “reasonably related to the costs of incarceration”).

Our decision in Ilkanic further supports the conclusion that the Act is a civil remedy and thus cannot violate the prohibition against ex post facto laws. In rejecting due process and equal protection challenges to section 960.239, this Court in Ilkanic noted that the “order imposing the incarceration charges [is] enforced in the same manner as a judgment in a civil action” and the “hen created upon the imposition of a per diem charge has the same effect as the hen created by the entry of a civil judgment.” Id. at 1373. Therefore, we hold that imposing a civil restitution lien pursuant to sections 960.293 and 960.297 to recover the incarceration costs of convicted offenders is a civil remedy that is not so punitive in nature as to constitute criminal punishment. Goad has failed to present clear proof that the Act actually operates as a criminal sanction that is capable of violating the prohibition against ex post facto laws.

DUE PROCESS CLAIM

Goad claims that the Act violates his substantive due process rights because sections 960.293 and 960.297 attach new legal consequences to events completed prior to the enactment of the law. “Substantive due process under the Florida Constitution protects the full panoply of individual rights from unwarranted encroachment by the government.” Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991). To determine whether the encroachment can be justified, courts have considered, among other things, the propriety of the State’s purpose, the nexus between the means chosen by the State and the goal it intended to achieve, and whether individuals are ultimately being treated in a fundamentally unfair manner in derogation of their substantive rights. See id.

In Ilkanic, this Court rejected a substantive due process challenge to section 960.293(2)(b):

We conclude that imposing a per diem charge on convicted offenders clearly relates to a permissive legislative objective of reimbursing public bodies for the costs expended in incarcerating these persons. Furthermore, we believe that the flat charge of $50 per day is reasonably related to the costs of incarceration.

705 So.2d at 1372-73. We find that this reasoning applies equally to section 960.297, the mechanism for imposing the $50 per day reimbursement.

For offenders convicted before July 1,1994, section 960.297(2), Florida Statutes (Supp.1994), provides that the State may recover incarceration costs, up to $50 per day, for the portion of the offender’s sentence remaining after July 1, 1994. Goad contends that the statute violates his right to substantive due process because section 960.297 attaches a new penalty to conduct completed before the statute’s enactment. We disagree because in essence, Goad is claiming that at the time he was convicted he had a vested right to free room and board while incarcerated. This is where Goad’s argument fails because there simply is no such vested right. Goad is not being treated in a fundamentally unfair manner in derogation of his substantive rights because there is no substantive right in not having to pay for the costs of one’s incarceration. Moreover, we find that the State’s purpose for the Act — the urgent need to alleviate the increasing financial burdens on the State and its local subdivisions caused by the expenses of incarcerating convicted offenders — is proper. See Ilkanic, 705 So.2d at 1372-73 (concluding “that imposing a per diem charge on convicted offenders clearly relates to a permissive legislative objective of reimbursing public bodies for the costs expended in incarcerating these persons”).

CONCLUSION

Accordingly, we approve the First District’s decision below and disapprove Gary and Alberts to the extent that those cases find that sections 960.293 and 960.297 violate the constitutional prohibition against ex post facto laws.

It is so ordered.

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

      . See §§ 960.29-297, Fla. Stat. (Supp.1994).

      . The Act was implemented to address two concerns: the problem of compensating crime victims through restitution and the urgent need to alleviate the increasing financial burdens on the State and its local subdivisions caused by the expenses of incarcerating convicted offenders. See § 960.29, Fla. Stat. (Supp.1994). Goad challenges only those portions of the Act that relate to the recovery of incarceration costs by the State.

      . Hudson describes the seven, factors as "guideposts” for determining whether a civil statute actually imposes a remedy that is in the nature of criminal punishment. 522 U.S. at 99, 118 S.Ct. 488.

      . Section 960.297 provides in full:
      (1) The state and its local subdivisions, in a separate civil action or as counterclaim in any civil action, may seek recovery of the damages and losses set forth in s. 960.293.
      (2) For those convicted offenders convicted prior to July 1, 1994, the state and its local subdivisions, in a separate civil action or as a counterclaim in any civil action, may seek recovery of the damages and losses set forth in s. 960.293, for the convicted offender’s remaining sentence after July 1, 1994.


author: GODERICH, Judge.

text:
    Deron Delarease GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3082.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing and Rehearing En Banc Denied May 28, 2003.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   GODERICH, Judge.

The defendant, Devon Delarease Green, appeals from his convictions and sentences for armed burglary with a firearm and armed robbery with a firearm. We affirm, in part, and reverse, in part.

In the instant case, the trial court sentenced the defendant to twenty-five years imprisonment with a concurrent fifteen year minimum mandatory sentence as a habitual violent felony offender. In addition, for possession of a firearm, the trial court imposed a ten year minimum mandatory term for each offense in accordance with the 10-20-life statute. § 775.087(2), Fla. Stat. (2000). The ten year minimum mandatory terms were to run concurrent to the other sentences, but consecutive to one another. The defendant contends that the imposition of consecutive ten year minimum mandatory terms was error because the convictions arose out of the same criminal episode. We agree.

In Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), this Court rejected the State’s argument that the trial court was required to impose consecutive sentences as to each of the four 10-20-life offenses. In support thereof, this Court quoted the Final Analysis of CS/CS/HB 113 (SB 194) of the House of Representative’s Committee on Crime and Punishment. This bill later became Chapter 99-12, Laws of Florida, and subsection 775.087(2). It states:

The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count, and the court is required to impose the minimum mandatory sentences required by the bill consecutive to any other term of imprisonment imposed for any other felony offense. This provision does not explicitly prohibit a judge from imposing the minimum mandatory sentences concurrent to each other. (e.s.)

Mondesir, 814 So.2d at 1173. See Roberts v. State, 834 So.2d 899 (Fla. 3d DCA 2002); Williams v. State, 820 So.2d 1000 (Fla. 3d DCA 2002); Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002).

Furthermore, the Florida Supreme Court has held that, absent specific legislative authorization, minimum mandatory enhancement sentences arising from a single criminal episode must run concurrently. See Hale v. State, 630 So.2d 521 (Fla.1993) (habitual felony offender statute), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994); Daniels v. State, 595 So.2d 952 (Fla.1992)(habitual violent felony offender statute). The Second and Fourth Districts have followed Hale and held that consecutive prison releasee reof-fender sentences that arose from a single criminal episode were illegal. Smith v. State, 824 So.2d 263 (Fla. 2d DCA 2002); Spivey v. State, 789 So.2d 1087 (Fla. 2d DCA 2002); Philmore v. State, 760 So.2d 1063 (Fla. 4th DCA 2000).

In the instant case, the defendant’s convictions arose out of the same criminal episode. For the reasons discussed above, we find that the trial court was not authorized to impose the enhanced consecutive minimum mandatory sentences. We, therefore, reverse and remand for the imposition of concurrent minimum mandatory sentences consistent with this opinion.

The defendant’s remaining points lack merit.

Affirmed, in part; reversed, in part, and remanded.