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

text:
    Robert PATTON, Appellant, v. STATE of Florida, Appellee. Robert Patton, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC02-423, SC02-2158.
    Supreme Court of Florida.
    May 20, 2004.
    Rehearing Denied July 14, 2004.

      Todd G. Scher, Special Assistant CCRC — Southern Region, Miami, FL, and Suzanne Myers, Assistant CCRC, Capital Collateral Regional Counsel — Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee/Respon-dent.
   PER CURIAM.

Robert Patton appeals an order of the trial court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. He also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the trial court’s order denying postconviction relief, and we deny habeas relief.

The Facts

On September 2, 1981, a Miami police officer attempted to stop Patton for driving a car the wrong way on a one-way street. Patton abandoned the car, which had been stolen, and fled the scene on foot. He ran down an alley with the officer in pursuit. Patton hid in the alley and waited for the officer to approach before shooting him twice. One bullet penetrated the officer’s heart, killing him instantly, and another entered the officer’s'foot in a manner which indicated that the officer had been shot after he was dead and lying prostrate.

Immediately after the shooting, Patton took a different car at gunpoint and fled the area. He was arrested later that day and charged with first-degree murder, armed robbery, grand theft, and violation of probation. Two days later, after obtaining a search warrant, the police recovered the murder weapon from beneath a heating grate in Patton’s grandmother’s home. See Patten v. State, 467 So.2d 975, 975-76 (Fla.1985).

Patton was convicted of first-degree murder, armed robbery, and grand theft, and violation of probation for the offense of auto theft. The jury was deadlocked six-to-six on whether Patton should be sentenced to death. Instead of ordering a mistrial, the trial judge instructed the jury to continue deliberating pursuant to Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (upholding the trial judge’s charge to the jury that it was the jury’s duty to decide the case if it could conscientiously do so). A short time later, the jury recommended a sentence of death by a seven-to-five vote. The trial court accepted the recommendation of death and sentenced Patton accordingly. On appeal, this Court vacated the death sentence and remanded for a new sentencing, holding that the Allen charge was erroneously given. See Patten v. State, 467 So.2d 975 (Fla.1985).

Patton then petitioned the United States Supreme Court for a writ of certiorari claiming that a resentencing would put him in double jeopardy. That petition was denied. See Patten v. Florida, 474 U.S. 876, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985). Patton then made the same claim to this Court in a petition for writ of prohibition. He argued that the initial jury deadlock amounted to a recommendation of life; therefore, on remand, the issue should be limited to whether there was a proper jury override. That petition was denied. See Patten v. Morphonios, 492 So.2d 1334 (Fla.1986).

Patton next filed a federal petition for writ of habeas corpus, again alleging that a new sentencing proceeding would violate his double jeopardy rights. In accordance with the magistrate’s report and recommendation, the petition was denied. See Patton v. Dugger, 678 F.Supp. 1567 (S.D.Fla.1988).

After the second sentencing proceeding, by a vote of eleven to one, the jury again recommended death. See Patten v. State, 598 So.2d 60 (Fla.1992). The trial judge found two aggravating factors: that Patton was previously convicted of a felony involving the use or threat of violence, and that the crime was committed to disrupt or hinder lawful arrest and the probation officer’s function since Patton was on probation at the time of this offense. See id. at 61. The trial judge found that no mitigating circumstances existed. See id. Again, Patton was sentenced to death. See id. This Court affirmed that sentence. See id. at 63.

Patton then filed a motion for postcon-viction relief. The trial court summarily denied the motion in its entirety. On appeal, this Court remanded the case for an evidentiary hearing “on the claims relating to whether counsel was ineffective for failing to raise voluntary intoxication or insanity as a defense to first-degree murder” and whether counsel was ineffective for failing to question the jury about mental illness during voir dire. Patton, 784 So.2d at 395. On all the other claims, this Court affirmed the trial court’s summary denial of relief. See id. at 396. The trial court held an evidentiary hearing as directed, and denied relief. This appeal follows.

POSTCONVICTION APPEAL

Patton raises two issues on appeal. First, he argues that he was denied the effective assistance of counsel for three reasons: that his trial counsel failed to utilize evidence of voluntary intoxication at the time of the offense; that the defense of insanity should have been advanced; and that trial counsel failed to conduct adequate voir dire. Second, Patton argues that the trial court erroneously denied his discovery request to interview jurors after the verdict. He wanted to interview them in order to establish that trial counsel’s failure to voir dire the jurors about drug abuse and mental illness was prejudicial. We affirm the denial of relief on both claims.

1. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are mixed questions of fact and law subject to de novo review. See Porter v. State, 788 So.2d 917, 923 (Fla.2001). The trial court’s legal conclusions are subject to independent review by this Court, but the factual findings must be given deference. See id.; see also Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999). In recognizing the trial court’s superior vantage point at the evidentiary hearing, this Court will not substitute its judgment for the trial court’s judgment on questions of fact, credibility of the witnesses, and weight of the evidence. See Porter, 788 So.2d at 923. The factual findings must demonstrate both that counsel was deficient in performance and that the defendant was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Patton first argues that the voluntary intoxication defense was not pursued as vigorously as it should have been and that there was sufficient evidence to support and succeed on this defense. Patton’s trial counsel presented voluntary intoxication as a defense in a limited and narrow manner. As the trial court found, Patton had a history of drug abuse. However, counsel wanted to disassociate Patton from that pervasive drug culture in Miami at the time. Patton’s trial counsel testified that she wanted to portray Patton as a clean-cut, middle-class young man who had a drug problem. This strategy was consistent with counsel’s theory that Patton acted out of panic and fear when he killed the officer and he did not have a specific intent to kill. Certain witnesses testified as to Patton’s drug use, and counsel relied on the limited evidence of intoxication elicited from the State’s witnesses, all of which was enough to support a jury instruction on voluntary intoxication. Cf. Gardner v. State, 480 So.2d 91, 92-93 (Fla.1985) (finding that evidence elicited during cross-examination of prosecution witnesses provided sufficient evidence for a jury instruction on voluntary intoxication). We accept the trial court’s findings of fact as supported by competent, substantial evidence in the record.

Patton disagrees with trial counsel’s strategy to downplay the intoxication defense. However, “[cjlaims expressing mere disagreement with trial counsel’s strategy are insufficient.” Stewart v. State, 801 So.2d 59, 65 (Fla.2001). “Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted).

Trial counsel thoroughly considered her options, weighed the pros and cons of aggressively advancing the intoxication defense, and chose to utilize voluntary intoxication to a limited extent in an effort to disassociate Patton from the culture of drugs and violence that plagued Miami at the time. Her strategy, though criticized by Patton in hindsight, was reasonable at the time and under the circumstances. The trial court determined that counsel’s decision to use voluntary intoxication in a limited manner did not fall below reasonable norms of professional conduct. This determination is thoroughly supported by the factual findings.

Patton next argues that trial counsel had ample evidence to present and succeed on an insanity defense, and was ineffective for not doing so. We considered the substance of this argument in our opinion on direct appeal. See Patten v. State, 467 So.2d 975, 978-79 (Fla.1985). In assessing Patton’s claim that the State bore the burden of affirmatively showing that Patton was sane at the time of trial, we stated:

After all four court-appointed experts found appellant competent to stand trial and competent at the time of the offense under the state’s modified M’Naghten test, counsel did not attempt to affirmatively assert the defense of insanity under that test. In our view, this was not an inadvertent omission by counsel. Facing the obvious improbability of a successful insanity defense under these circumstances, counsel instead sought to have the trial judge reject the modified M’Naghten test....

Id. at 978. We went on further to state:

In this case the defense of insanity was not asserted, nor was the evidence of appellant’s prior adjudication or commitment offered at trial. The reason for this is clear in the record. The appellant had no experts to testify as to his insanity.

Id. at 979.

Trial counsel testified at the evidentiary hearing that she initially vigorously pursued an insanity defense. However, as her investigation progressed, she decided against presenting that defense. The trial court found this to be a sound strategic decision.

The record indicates that in 1978 Patton was adjudicated not guilty by reason of insanity on a charge of receiving stolen property and was involuntarily committed. Despite this history, however, counsel testified that she ultimately decided to forego a defense of insanity because of Patton’s surreptitious attempt to feign insanity in this ease and because there was no favorable expert medical testimony. Patton wrote letters to his sister and girlfriend boasting that he had manipulated the doctors and convinced them that he was mentally ill. Four psychiatrists were appointed to evaluate Patton’s competency and sanity at the time of the crime, none of whom determined that Patton was legally insane at the time of the offense. In addition to the four court-appointed doctors, and at defense counsel’s request, Dr. Jeth-ro Toomer examined Patton. Dr. Toomer was asked to determine: (1) whether Patton had the ability to conform his conduct to the requirements of the law, and (2) whether Patton was under the influence of some type of emotional disturbance at the time of the alleged incident. Dr. Toomer did not prepare a written report, but testified at Patton’s first penalty phase trial that Patton knew it was wrong to kill and knew the consequences of his actions. Based on this information, Patton’s defense counsel testified that she did not believe Patton had a good faith defense of insanity, and that she was therefore ethically prohibited from asserting one.

Patton argues that he did have a valid insanity defense and that he could have prevailed at trial. He primarily relies on Dr. Toomer’s testimony at the second sentencing hearing where he testified that Patton was insane at the time of the murder. As the trial court found, this testimony is inconsistent with Dr. Toomer’s testimony at the first sentencing proceeding. Although Dr. Toomer stated at the second sentencing proceeding that Patton was insane at the time of the crime, Dr. Toomer was unable to diagnose Patton with a mental disease or defect, which M’Naghten requires.

The legal test for insanity in Florida in criminal cases has long been the “M’Naghten Rule.” See Cannady v. State, 620 So.2d 165, 168 n. 1 (Fla.1993); Anderson v. State, 276 So.2d 17, 18 (Fla. 1973); Piccott v. State, 116 So.2d 626, 627 (Fla.1959); Davis v. State, 44 Fla. 32, 32 So. 822, 826 (1902). Under M’Naghten, an accused is not criminally responsible if, at the time of the alleged crime, the defendant, by reason of a mental disease or defect, (1) does not know of the nature or consequences of his or her act; or (2) is unable to distinguish right from wrong. See Gurganus v. State, 451 So.2d 817, 820 (Fla.1984); Wheeler v. State, 344 So.2d 244, 245 (Fla.1977). Generally, then, a defendant can be found not guilty by reason of insanity if he or she commits an unlawful act, but by reason of a mental infirmity, disease, or defect is unable to understand the nature and quality of his or her act, or its consequences, or is incapable of distinguishing right from wrong at the time of the incident. See Hall v. State, 568 So.2d 882 (Fla.1990).

Not one expert in this case conclusively diagnosed Patton with a mental infirmity, disease, or defect. Dr. Charles Mutter stated that Patton had a “sociopathic personality disorder with drug abuse.” Dr. Sanford Jacobson reported that “the mental status examination and interview do not in my opinion support a finding of an illness which would have been present at the time of the offense.” Dr. Edward Hererra reported, “I do not find any evidence of mental illness in the defendant at the present time.” And Dr. Albert Jaslow stated, “Although [Patton] presented the picture of general incompetence, and claimed from his discussions to have active psychotic manifestations, there were a number of areas that suggested a contrived and exaggerated, rather than a truly active major mental disorder.”

Even Dr. Toomer, who testified that Patton suffered from an extreme mental or emotional disturbance, could not give a specific diagnosis of a mental disease or defect. At the 1989 resentencing hearing, Dr. Toomer testified that because Patton did not know the difference between right and wrong at the time he shot the officer, he was insane. However, he called Patton’s behavior a result of an “antisocial personality disorder,” and explained that “in the nature of antisocial personality disorder ... behavior tends to break down when the individual is faced with unanticipated or with anticipated stressors.”

Additionally, at the evidentiary hearing, the State relied on a memo defense counsel prepared before Patton’s trial that recapped a conversation she had with Dr. Toomer. That memo states:

Tommer [sic] indicated that he could not find anything in terms of gross mental disturbances based on the test that he had administered. Although [Patton] had some symptoms, and has a socio-pathie personality with manic depressive overtones, he was not able to relate the symptoms to any clear cut disorder.

Because Dr. Toomer called Patton’s condition a “disorder,” and was unable to diagnose Patton with a specific mental disease or defect, the legal definition of insanity was not met. This is true even in light of Dr. Toomer’s expert opinion that Patton was insane at the time of the crime. The difference between a disorder and a disease is not insignificant. See Elledge v. State, 706 So.2d 1340, 1346 (Fla.1997) (affirming death sentence where trial court denied statutory mental health mitigator based on the expert testimony that defendant had antisocial personality disorder and that such disorder is not a mental illness, but a life long history of a person who makes bad choices in life and that these choices are conscious and volitional); Rose v. State, 617 So.2d 291, 294 (Fla.1993) (finding that trial court properly denied relief on claim of ineffective assistance of counsel where counsel conducted a sufficient investigation of mental health mitigation but made a strategic decision not to present such evidence because psychologist determined defendant had an antisocial personality disorder but not an organic brain disorder); see also Long v. State, 610 So.2d 1268, 1272 (Fla.1992) (affirming death sentence, noting that state’s mental health expert testified during guilt phase in regard to defendant’s insanity defense, that although defendant “did suffer from a severe antisocial personality disorder, it was his opinion that Long did not suffer from a mental illness or disease”); Jennings v. State, 453 So.2d 1109, 1112 (Fla.1984) (affirming death sentence, noting that state’s psychiatric expert in penalty phase testified that although appellant “had a character or personality disorder which is not easily cured, appellant did not suffer from any mental disease or defect”), vacated on other grounds, 470 U.S. 1002, 105 S.Ct. 1351, 84 L.Ed.2d 374 (1985).

Counsel’s decision to forego the insanity defense was not unreasonable under Strickland since she had no evidence that Patton suffered from a mental disease or defect. Therefore, we accept the trial court’s findings of fact and conclude that counsel was not ineffective because deficient performance was not demonstrated.

Patton next argues that counsel was ineffective for failing to question the jury about its perceptions of mental illness. Because we affirm the trial court’s order denying relief on the insanity defense claim, we also conclude that counsel’s decision to forego questioning the venire about mental illness was appropriate. At the hearing below, counsel testified that it would not have been beneficial to question the venire about mental illness and that she did not think the judge would allow such questioning in the penalty phase. Counsel’s decision to forego questioning the jury on mental illness is consistent with the lack of evidence to support an insanity defense. Thus, deficient performance on this issue has not been demonstrated.

For these reasons, we affirm the trial court’s denial of relief on Patton’s claims that counsel was ineffective.

2. Request to Interview Jurors

In his second claim on appeal, Patton argues that he should have been permitted to voir dire the jurors prior to the eviden-tiary hearing on this motion for postconviction relief. Patton argues here that he must be permitted to interview the jurors in order to prove he was prejudiced under Strickland by counsel’s failure to voir dire the jurors on mental illness prior to trial. However, as we explained above, counsel’s failure to question the jury about mental illness did not constitute deficient performance. Thus, we need not reach the merits of Patton’s prejudice claim. See Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (finding that because Strickland requires the establishment of both prongs, when a defendant fails to show one, it is not necessary to consider the other). The trial court correctly denied relief on this issue.

WRIT OF HABEAS CORPUS

Patton has also filed a petition for writ of habeas corpus. We have considered the issues raised in Patton’s petition, and for the following reasons, deny relief.

1. Ring v. Arizona Claims

Patton first argues that his sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because (1) the judge overrode the first jury’s recommendation of life as that jury was deadlocked by a six-to-six vote until it was erroneously given an Allen instruction; (2) the indictment failed to include all the elements of the offense; (3) the recommendation of death was merely advisory and the final decision erroneously rested with the judge; (4) Patton wrongfully bore the burden of proving mitigation in the penalty phase; and (5) the State was allowed to argue facts to the jury that amounted to doubling of aggrava-tors, but Patton could only object if the trial court doubled aggravators in the sentencing order.

Patton alleges that the first sentencing proceeding resulted in a recommendation of life because of the six-to-six tie. This Court has already addressed, the issue, and specifically held that “[tjhere was no life recommendation in this case.” See Patten, 467 So.2d at 980. We decline to re-address an issue that has already been considered and resolved on the direct appeal of the first sentencing proceeding. See Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (“[H]abeas corpus petitions are not to be used for additional appeals on questions which could have been ... raised ... in a rule 3.850 motion.... ”); Thomas v. Wainwright, 486 So.2d 574, 575 (Fla.1986) (“Habeas corpus is not available for the purpose of reviewing arguments that could have been raised but were not raised by timely objection at trial and argument on appeal.”). Thus, because this issue was adjudicated on its merits, it is procedurally barred. The Ring decision does not require this Court to revisit the issue.

Next, Patton argues that the indictment failed to include all elements of the offense. The indictment charged Patton with grand theft (of the green Volkswagen he drove just prior to the shooting), first-degree murder, and armed robbery (of the getaway car he stole at gunpoint just after the shooting). “He was found guilty as charged.” Patton v. State, 784 So.2d 380, 385 (Fla.2000). Patton now asserts that his death sentence is unconstitutional under Ring because Florida’s capital sentencing scheme fails to . require that aggravating circumstances be enumerated and charged in the indictment.

In the second sentencing proceeding, the trial-judge found as an aggravating circumstance that Patton was previously convicted of a prior violent felony. This aggravating circumstance was based on a 1975 conviction for armed robbery, as well as the armed robbery of the getaway car Patton took at gunpoint just after the shooting. ' This armed robbery was charged in the indictment, and the jury unanimously found Patton guilty of it. The existence of this prior violent felony aggravator satisfies the mandates of the United States and Florida Constitutions, and therefore imposition of the death penalty was constitutional. See Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”).

Patton next asserts that Florida’s capital sentencing scheme is uneonstitu-tional because the jury’s recommendation is merely advisory. This issue was addressed in King v. Moore, 831 So.2d 143, 148 (Fla.) (Shaw, J., concurring) cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and Bottoson v. Moore, 833 So.2d 693, 725 (Fla.) (Lewis, J., concurring in result only), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002). However, these cases did not overrule the authority upholding the constitutionality of the jury’s advisory role. We decline to do so here.

Next, Patton claims that under Florida’s capital sentencing statute, the maximum penalty is life until the state proves an aggravator, that the sentencing statute requires the defendant to prove a mitigator, and that if the defendant fails to do so, the state is relieved of its burden. Patton raised this claim in his motion for postcon-viction relief, and it was summarily denied. See Patton, 784 So.2d at 395. On review of that denial, this Court stated that the “underlying burden-shifting and Caldwell error claims are legally insufficient and conclusively rebutted by the record.” Id. Even though Patton now argues that Ring requires this Court to revisit this claim, we will not do so because the prior violent felony aggravator satisfies constitutional mandates. See Jones v. State, 855 So.2d 611, 619 (Fla.2003); Doorbal, 837 So.2d at 963.

Finally, Patton argues that the jury was instructed to consider aggravators without being instructed to avoid their doubling effect. Patton argues that the State asserted three aggravators: prior violent felony, avoiding arrest, and hindrance of governmental function. In the sentencing order, the court merged the avoiding arrest and hindrance of a governmental function aggravators. On direct appeal, Patton challenged the violent felony and avoiding arrest (which had merged with hindrance) aggravators. The issue was denied on its merits. See Patten v. State, 598 So.2d 60, 63 (Fla.1992). However, Patton now asserts that this Court should reconsider his claim in light of Ring. Because this Court has determined that Ring has not overruled Florida’s capital sentencing scheme, this claim is denied.

2. Ineffective Assistance of Appellate Counsel

In his second issue, Patton alleges ineffective assistance of appellate counsel. Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In order to grant habeas relief based on ineffectiveness of counsel, this Court must determine: “[FJirst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Pope v. Waimvright, 496 So.2d 798, 800 (Fla.1986). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069.

Patton first alleges that appellate counsel was ineffective for failing to object to an erroneous factual finding by this Court that an instruction had not been requested by trial counsel regarding doubling of aggravators. In a footnote in the opinion on Patton’s direct appeal, this Court stated that trial counsel had not requested a limiting instruction advising the jury not to double the weight of multiple aggravating circumstances. See Pat ten, 598 So.2d at 68. Now Patton alleges that an instruction was requested and denied. Patton’s appellate counsel did not raise this issue in the motion for rehearing. This, Patton argues, constitutes ineffective assistance of appellate counsel.

Patton fails to show how he was prejudiced by this erroneous factual determination. We indicated on direct appeal that the trial court “specifically considered the events as one aggravating circumstance and did not give them a doubling effect in imposing the death sentence.” Patten, 598 So.2d at 68. Thus, even if Patton can show that appellate counsel failed to raise the factual issue in a motion for rehearing, he cannot demonstrate how any such error undermined the sentence of death. “If a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Gore v. State, 846 So.2d 461, 471 (Fla.2003) (quoting Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000)). Therefore, relief on this claim is denied.

Patton next argues that the trial court’s denial of his motion to suppress was erroneous and appellate counsel’s failure to raise the issue on direct appeal was prejudicial in both the original appeal and the resentencing appeal. In Jones v. Moore, 794 So.2d 579, 583-84 (Fla.2001), this Court explained the procedure to be followed when a petitioner alleges ineffective assistance of appellate counsel for failing to raise a preserved evidentiary issue:

With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal, this Court evaluates the prejudice or second prong of the Strickland test first. In doing so, we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error. A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner. If we conclude that the trial court’s ruling was not erroneous, then it naturally follows that ha-beas petitioner was not prejudiced on account of appellate counsel’s failure to raise that issue. If we do conclude that ■the trial court’s evidentiary ruling was erroneous, we then consider whether such error is harmful error. If that error was harmless, the petitioner likewise would not have been prejudiced.

The first step is to determine whether the evidentiary issue was preserved for appellate review. See Valle v. Moore, 837 So.2d 905, 910 (Fla.2002) (setting forth the analysis to follow when appellate counsel fails to raise an issue that was “properly preserved by objection at trial”). In this case, both parties agree that trial counsel did not object to the admission of Patton’s statements to police at the time the statements were admitted, either at the original trial or at resentencing. To preserve an evidentiary issue for appellate review, an appropriate objection must be made at trial when the evidence is offered. See Terry v. State, 668 So.2d 954, 959 (Fla.1996). The denial of a pretrial motion to suppress “ ‘is not tantamount to a proper and seasonable objection to the questioned evidence at the trial upon the issue.’ ” Id. (quoting Robertson v. State, 94 Fla. 770, 114 So. 534, 536 (1927)). Because there was no objection to the admission of the evidence at trial, the issue was not preserved for appellate review. In the absence of fundamental error, appellate counsel cannot be deemed ineffective for failing to raise this- unpreserved issue. See Schwab v. State, 814 So.2d 402, 414 (Fla.2002).

Patton argues that if the claim is found to be procedurally barred, it should nonetheless be considered because the error is fundamental. Fundamental error is defined as error that reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). Patton’s fundamental error argument was raised for the first time in his reply to the State’s response to his habeas petition. The entirety of Patton’s reply is:

Should, however, the Court determine that there is such an impediment, Patton submits that the error was fundamental and appellate counsel should nonetheless have raised it.

“A summary or conclusory allegation is insufficient to allow the trial court to examine the specific allegations against the record.” Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998); see also Rumph v. State, 527 So.2d 270 (Fla. 1st DCA 1988) (finding appellant’s 3.850 motion facially insufficient to raise any fundamental error and that the procedural error complained of occurred during trial and should have been raised on appeal from the judgment of conviction). Likewise, such a conclusory allegation is not sufficient for appellate purposes. Thus, to the extent that fundamental error is alleged by Patton, the claim is conclusory and facially insufficient.

3. Proportionality Review

Patton next asserts that this Court failed to conduct a proportionality review of his death sentence. Patton’s allegation that appellate counsel was ineffective for failing to raise proportionality is without merit for two reasons. First, a proportionality review is inherent in this Court’s direct appellate review and the issue is considered regardless of whether it is discussed in the opinion or raised by a party, and second, the death sentence in this case was proportional.

“The mere fact that proportionality is not mentioned in the written opinion does not mean that no proportionality review was conducted.” Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1994) (citing Booker v. State, 441 So.2d 148, 153 (Fla.1983)). In Booker, this Court explained that failure to mention proportionality in its opinion does not mean that the Court did not consider it. See 441 So.2d at 153. This Court stated that a proportionality review “is an inherent aspect of our review of all capital cases. We need not specifically state that we are doing that which we have already determined to be an integral part of our review process.” Id. Thus, the fact that the direct appeal of Patton’s resentencing does not include a discussion of proportionality is not a fact that warrants reversal.

In Patton’s direct appeal, this Court considered the following claims: (1) whether the death penalty procedure was unconstitutional because the sentencing jury did not have to report its findings of aggravation and mitigation in detail; (2) and (3) whether the prosecutor’s arguments in voir dire constituted presentation of non-statutory aggravating factors; (4) whether the jury was erroneously instructed as to the applicability of certain aggravating factors; (5) whether the trial court erred in its finding that no mental mitigators existed; (6) whether an error committed in the first sentencing phase trial should be reconsidered; and (7) whether the death penalty itself is constitutional. Of these seven claims, five involved consideration of aggravating and mitigating factors. Thus, inherent in this Court’s review of these claims was a thorough consideration of the findings of mitigation and aggravation, and the Court expressly affirmed the trial judge’s imposition of death.

The resentencing court found two aggravating factors: (1) a prior violent felony conviction based on a 1975 armed robbery and the contemporaneous conviction for the armed robbery of Máxime Rhodes; and (2) hindering a governmental function and avoiding arrest, which were merged. The trial court gave great weight to each of these aggravators. The trial court found no statutory mitigating circumstances, and rejected Dr. Toomer’s testimony about the mental mitigators on credibility grounds. The trial court found as nonstatutory mitigation that Patton was abused as a child and used drugs. See Patten v. State, 598 So.2d 60, 63 (Fla.1992).

A proportionality review requires this Court to “consider the totality of circumstances in a case, and to compare it with other capital cases.” Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). The death penalty is reserved only for those cases where the most aggravating and least mitigating circumstances exist. See Kramer v. State, 619 So.2d 274, 278 (Fla.1993). Although this Court did not discuss its proportionality analysis in the direct appeal of Patton’s resentencing, a proportionality finding is supported. See Burns v. State, 699 So.2d 646 (Fla.1997) (affirming death sentence for the murder of a law enforcement officer where avoiding arrest and hindering law enforcement aggravating circumstances were found and merged, there was one statutory mitigating circumstance of no significant criminal history, and insignificant nonstatutory mitigation); Reaves v. State, 639 So.2d 1 (Fla.1994) (affirming death sentence for the murder of a deputy sheriff, where the record supported the existence of two aggravating circumstances of prior violent felony and avoiding arrest, no statutory miti-gators, and three nonstatutory mitigators).

We therefore deny habeas relief on this issue.

CONCLUSION

Based on the reasons stated as to each specific issue, we hereby affirm the trial court’s denial of postconviction relief. We also deny habeas corpus relief.

It is so ordered.

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

ANSTEAD, C.J., concurs specially with an opinion.

CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J.,

specially concurring.

I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

CANTERO, J.,

specially concurring.

I concur in the majority opinion. Moreover, regarding the petitioner’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, Nos. SC01-2706 & SC02-2142, — So.2d -, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

      . Patton's name was misspelled in the first direct appeal and resentencing appeal. See Patton v. State, 784 So.2d 380, 385 n. 1 (Fla.2000).

      . The rule is so named because it is derived from an early English decision, M'Naghten's Case, 8 Eng. Rep. 718 (1843).

      . Patton also refers to alleged ineffectiveness for failing to question the venire about intoxication. This Court has affirmed the summary denial of that claim. See Patton v. State, 784 So.2d 380, 390 (Fla.2000).

      . Patton filed a motion to interview jurors, and the trial court denied it. An interlocutory appeal was filed, and we dismissed the appeal. Patton v. State, 817 So.2d 849 (Fla.2002) (dismissing Patton's petition for interlocutory review).

      . Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Cedrick GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2875.
    District Court of Appeal of Florida, First District.
    May 20, 2003.
    Order Denying Rehearing March 23, 2004.
    Nancy A. Daniels, Public Defender and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. United States v. Santos-Garda, 313 F.3d 1073, 1079 (8th Cir.2002); United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.1992); United States v. Nash, 910 F.2d 749, 753 (11th Cir.1990); Frazier v. State, 107 So.2d 16, 25 (Fla.1958); Edwards v. State, 793 So.2d 1044, 1047-48 (Fla. 4th DCA 2001); State v. Mallory, 670 So.2d 103, 107 (Fla. 1st DCA 1996).

VAN NORTWICK, LEWIS and HAWKES, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Cedrick Green files a motion for rehearing. In his motion, Green recognizes that the cases cited in our per curiam opinion stand for the legal principles that, in judging whether a confession should be suppressed as involuntary, promises to bring a defendant’s cooperation to the attention of the judge and prosecutor are not per se objectionable, accurately representing the defendant’s situation is not coercive, urging a defendant to tell the truth is not objectionable, and engaging in a discussion with the defendant about the realistic penalties that may be imposed after cooperation or non-cooperation is not coercive. See, e.g., United States v. Nash, 910 F.2d 749, 753 (11th Cir.1990)(quoting United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978))(“‘telling the [defendant] in a non-coereive manner of the realistically expected penalties and encouraging [him] to tell the truth is no more than affording [him] the chance to make an informed decision with respect to [his] cooperation with the government.’ ”). Green, however, argues that this court overlooked the fact that none of the cited cased involved an assurance that cooperation would result in a lighter sentence or the relentless use of coercive statements to overcome the defendant’s obvious intent not to confess. We find Green’s argument without merit and deny the motion for rehearing.

The ruling of the trial court denying appellant’s motion to suppress comes to this court clothed with the presumption of correctness and the reasonable inferences should be interpreted in a manner most favorable to sustaining the ruling. See Escobar v. State, 699 So.2d 988, 993-94 (Fla.1997), cert. denied, 523 U.S. 1072, 118 S.Ct. 1512, 140 L.Ed.2d 666 (1998). The trial court’s ruling should not be disturbed unless it is clearly erroneous. Davis v. State, 594 So.2d 264, 266 (Fla.1992).

The test of voluntariness of a confession is whether, examining the totality of the circumstances, the confession was the product of coercive police conduct. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). In assessing the totality of the circumstances, and the defendant’s ability to overcome pressure brought against him, courts examine such factors as “youth, lack of education, low intelligence, explanation of constitutional rights and length of interrogation ...” State v. Moore, 530 So.2d 349, 351 (Fla. 2d DCA 1988). In addition, the defendant’s prior experience with police may be pertinent, as well as such factors as police brutality, and whether the defendant was deprived of food or water or sleep. See 2 Wayne R. LaFave & Gerold H. Israel, Criminal Procedure § 6.2(c). Of particular significance is whether Miranda [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] warnings were given, and if they were, that is an important factor in the voluntariness finding. Id. In short, courts look at the conduct of the police and the defendant’s ability to resist any pressure which the police may bring to bear. See, generally, David R. Jankowsky and Erie R. Sherman, Custodial Interrogations, 90 Geo. L.J. 1240,1259-60 (May 2002).

In denying the motion to suppress after reviewing appellant’s videotaped confession, the trial court made the following findings: (1) appellant was in custody when he confessed and had received Miranda warnings prior to being questioned; (2) the officers testified they had not promised defendant anything, nor had they threatened or mistreated him or deprived him of food, water or bathroom breaks; (3) while one of the investigators was a friend of appellant, the substance of his comments during the videotaped interrogation amounted to imploring appellant to “do the right thing” and to “look out for Cedrick Green;” (4) while there was a pre-taped conversation between Green and his interrogator, the fact that appellant initially and repeatedly denied his involvement once the taped interrogation began suggested that any prior conversations with the investigator had little effect on him; (5) the officers informed appellant of the serious penalties he was facing; and (6) while the officers made suggestions that Mr. Green’s cooperation would result in their making positive recommendations on his sentence to the prosecutor and judge, they clearly told appellant that he would do prison time for the robberies involved and one officer emphasized that making a recommendation was “all” they could do. The trial court concluded:

Viewing the confession as a whole, the court finds that Mr. Green’s statements to the police were given freely and voluntarily and without coercion. The videotape reveals that the atmosphere in the interrogation room was relaxed and informal. Although the officers made it clear they wanted information from Mr. Green, the banter between Mr. Green and officers was free of hostility, and no heated or aggressive exchanges took place. Mr. Green did not specifically respond to the officers’ offer to speak to prosecutors and the judge on his behalf, and did not ask questions about what exactly they meant, or what exactly he would receive as a sentence. Since the cases noted above have found statements regarding making cooperation known to judge or other authorities not inherently coercive, this court must conclude that the statements involved here did not overcome Mr. Green’s free will, and that those statements are therefore not subject to suppression. The court also finds that having viewed the entire videotape of Mr. Green’s confession, the remaining issues raised in his motion to suppress are without merit ...

As the Florida Supreme Court recognized in Almeida v. State, 737 So.2d 520, 523 (Fla.1999), albeit in another context, “custodial utterances are extraordinarily rich in diversity.” Each case must be judged on its own unique facts, see Jeantilus v. State, 853 So.2d 1099 (Fla. 4th DCA 2003), to determine whether the police were guilty of coercive conduct which overcame the defendant’s free will. After a thorough review of the record and the taped interview with the defendant, in which he confessed after an approximate thirty minute conversation with the officers, we have concluded that the trial court’s ruling was not clearly erroneous.

As noted by the trial court, the mood in the interview was calm and free of hostility. There were no raised voices, no deception, and no aggressive moves. Appellant, though young, had significant experience in dealing with law enforcement. While the transcript of this interview, when read in isolation, contains words employed by law enforcement which are subject to different inferences, we cannot say the inferences drawn by the trial judge are erroneous given the non-coercive manner in which the words were spoken. While appellant complains that, by their comments, the officers gave him an unqualified assurance that cooperation would save him from a long sentence, such statements in themselves do not invalidate the confession. See Milton v. Cochran, 147 So.2d 137, 139-40 (Fla.1962)(“statements [to the effect that the petitioner could avoid the death penalty by confessing] in themselves would not invalidate the confession.”); see, e.g., State v. Roberts, 160 Vt. 385, 388-89, 631 A.2d 835, 837-38 (Vt.1993)(predications regarding the value of cooperation not sufficiently coercive to render confession involuntary). The comments here never rose to the level of an express quid pro quo bargain in return for appellant’s confession, which distinguishes this case from Walker v. State, 771 So.2d 573 (Fla. 1st DCA 2000), upon which appellant principally relies. See Moser v. State, 763 So.2d 1165, 1168 (Fla. 4th DCA 2000). As stated by the Fourth District Court of Appeal in Nelson v. State, 688 So.2d 971, 974 (Fla. 4th DCA 1997):

In addition to weighing credibility and the force of the evidence reflected on the tape, the judge found that when [Nelson] finally did confess to the murder, his voice sounded “calm and deliberate. He also seemed rational and his answers were responsive and consistent with his story.” The judge, considering the totality of the circumstances, determined that [Nelson’s] statements were not coerced.
We cannot say that the trial court abused its discretion in coming to this conclusion. The constitution does not bar the use by investigating officers of any statement that could be construed as a threat or promise, but only those which constitute outrageous behavior and which in fact induce a confession. There must be a causal nexus between the improper police conduct and the confession. Merely informing the suspect of realistic penalties and encouraging him to tell the truth does not render a confession involuntary. Here, there does not appear to be a causal nexus between the comments and question of [Nelson’s] confession when considering the evidence in the light most favorable to the state.

(Citations omitted). Similarly, we cannot say that the trial court abused its discretion in determining appellant’s statements were not coerced or that a causal nexus between the allegedly improper police comments and appellant’s confession is not demonstrated in this case.

Finally, we decline appellant’s request to certify conflict with Edwards v. State, 793 So.2d 1044, 1048 (Fla. 4th DCA 2001), in which the court ruled that a confession made immediately after the defendant was threatened with added and more serious crimes was coerced. There were no similar threats here. The threat of harsher treatment in the event of non-cooperation is significantly different than mentioning that a benefit might flow from cooperation.

For these reasons, we deny appellant’s motion for rehearing.

VAN NORTWICK, LEWIS AND HAWKES, JJ., CONCUR.


author: PER CURIAM.

text:
    Yi Lin ZHANG, and Lan Hua Huang, Appellants, v. D.B.R. ASSET MANAGEMENT, INC., Appellee.
    No. 3D02-2998.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Rehearing Denied Aug. 4, 2004.
    Linfeng Zhou (Fort Lauderdale), for appellants.
    Lance W. Shinder (Boca Raton), for ap-pellee.
    Before COPE, LEVY, and GERSTEN, JJ.
   PER CURIAM.

This case involves a commercial landlord-tenant action for possession and damages. Appellee, D.B.R. Asset Management, Inc. (“landlord”), brought suit for eviction and damages claiming the tenants, appellants Yi Lin Zhang and Lan Hua Huang (“tenants”), violated a restrictive “use clause” in their lease agreement by selling various kinds of Chinese food at their restaurant. The tenants answered and filed a counterclaim alleging the landlord owed them $30,367.36 in construction contributions under a separate provision of the lease, and also owed them an additional $24,540.80 in rent credits.

Both parties moved for summary judgment. At the hearing on the motions, the parties argued their respective positions regarding whether the tenants’ menu offerings at the restaurant violated the restrictive clause. With regard to the counterclaim, the landlord argued the tenants were not entitled to a construction contribution based upon their breach of the restrictive use clause. However, the landlord agreed that if no violation were found, the proper amount due would be $25,459.20, but not the $50,000 construction allowance sought by the tenants. The landlord stated it did not wish to evict the tenant.

Thereafter, the trial court granted summary final judgment against the landlord finding the tenants’ use did not violate the restrictive clause. The tenant was awarded $25,459.20 in construction contribution costs. With regard to attorneys’ fees, the order specified that “[ejach side shall bear their own fees and costs.” The tenant then filed a motion for rehearing seeking prejudgment interest on the construction contribution claim, as well as legal fees and costs.

Rehearing was granted. However, the trial court denied the tenants’ request for prejudgment interest, legal fees, and costs, specifically finding that “although the Court procedurally granted Summary Judgment against the Plaintiff, this disposition was based upon an agreement between the parties. This Court therefore finds that this case was resolved by way of a settlement. There is no prevailing party in a settled case.” In a subsequent order on the tenants’ motion for reconsideration, the trial court again determined “there is no ‘prevailing party’ in this action.”

The “prevailing party” for purposes of awarding attorney’s fees is the party determined by the trial court to have prevailed on significant issues in the litigation. See Moritz v. Hoyt Enter., Inc., 604 So.2d 807 (Fla.1992); Green Cos. v. Kendall Racquetball Inv., Ltd., 658 So.2d 1119 (Fla. 3d DCA 1995). In making the determination as to which party has prevailed, a trial court is to focus on the “result obtained.” See Smith v. Adler, 596 So.2d 696 (Fla. 4th DCA 1992). Simply because a party has obtained some economic benefit as a result of litigation, does not necessarily mean that party has succeeded on the major issue in the case. See Zaremba Florida Co. v. Klinger, 550 So.2d 1131 (Fla. 3d DCA 1989); Thaller v. Waterford Condo. Apartments, Inc., 437 So.2d 248 (Fla. 4th DCA 1983).

Moreover, “an attorney’s fee award is not required each time there is litigation involving a contract providing for prevailing attorney’s fees.” KCIN, Inc. v. Canpro Inv., Ltd., 675 So.2d 222 (Fla. 2d DCA 1996). A trial court may properly determine that neither party has prevailed in a contract action under compelling circumstances. See Miller v. Jacobs & Goodman, P.A., 820 So.2d 488 (Fla. 5th DCA 2002).

Here, the trial court determined the parties had settled, and specifically found there was no prevailing party for purposes of entitlement to fees. The record supports the trial court’s findings that the parties did agree to a resolution of the disputed issues. Significantly, although the tenants’ use was found not to violate the restrictive clause in the lease, the landlord did prevail in defense of the counterclaim that sought an excessive amount for the construction contribution.

Under these circumstances, clearly there was no abuse of discretion in the trial court’s well reasoned decision. See Folta v. Bolton, 493 So.2d 440 (Fla.1986); Miller v. Jacobs & Goodman, P.A., 820 So.2d at 438. Accordingly, we affirm the orders below in all respects.

Affirmed.


author: FARMER, C.J. GROSS, J.,

text:
    RICHMOND HEALTHCARE, INC., a foreign corporation, d/b/a Sunrise Health and Rehabilitation Center, Appellant, v. Philip A. DIGATI, Personal Representative, Estate of Samuel N. Sloane, Appellee.
    No. 4D03-1276.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Rehearing Denied Aug. 19, 2004.
    Alex Finch, Winter Park, for appellant.

      Laura B. Zebersky and Jason Corsover of Zebersky and Associates, P.A., Plantation, for appellee.
   FARMER, C.J.

A nursing home (Sunrise) appeals an order refusing to enforce an agreement to arbitrate plaintiffs action for damages alleging negligent care and violations of chapter 400, part II, Florida Statutes. We reverse.

The nursing home admission contract contained the following provision:

“any action, dispute, claim, or controversy of any kind ... now existing or hereinafter arising between the parties in any way arising out of, pertaining to or in connection with the provision of health care services, any agreement between the parties, the provision of any other goods or services by the Health Care Center or other transactions, contracts or agreements of any kind whatsoever, any past, present or future incidents, omissions, acts, errors, practices, or occurrence causing injury to either party whereby the other party or its agents, employees or representative may be liable in whole or in part, or any other aspect of the past, present, or future relationships between the parties shall be resolved by binding arbitration administered by the National Health Lawyers Association (the ‘NHLA’).”

The contract also contained a clause saying that it is to be “interpreted in accordance with the law of the state where the Health Care Center is located.” In response to Sunrise’s motion to compel arbitration, plaintiff argued that the provision should not be enforced. In particular, he argued that under the contract the arbitration was conducted by NHLA, whose discovery and evidence rules conflict the civil remedies of chapter 400, part II, Florida Statutes. See § 400.23, Fla. Stat. (2003).

•The trial court held two hearings at which argument was made but no evidence adduced. In its order denying arbitration, the trial court held that the contract was “not illusory” and that section 400.023 does not preclude arbitration of chapter 400 claims by “an otherwise valid agreement for arbitration.” The court noted that the Sunrise had not waived the right to assert the arbitration issue. The court took the matter under further advisement and ordered the parties to file memoranda as to whether a part of the arbitration provision could be severed. The court also required Sunrise to file a copy of the applicable arbitration rules of NHLA.

After full briefing by the parties, the trial court entered an order denying the motion to compel arbitration. The trial judge explained:

“By adopting the [NHLA] Rules of Procedure, the Admission Contract binding arbitration clause substantially infringes upon the statutory rights of the resident. First, the resident may only recover damages, actual or punitive, upon a showing of intentional or reckless conduct by clear and convincing evidence. This severely limits the remedies afforded by Fla. Stat. § 400.23, and mandates a higher burden of proof.
“In addition, the [NHLA] Rules provide that, unless the arbitrator finds good cause to award arbitration fees, expenses and compensation to the prevailing party, the expenses shall be equally divided among the parties. This limits the resident’s right to recover prevailing plaintiff attorneys fees and costs pursuant to Fla. Stat. § 400.23.” ,

Noting that the specific issue appears to be one of first impression, the trial judge drew an analogy with arbitration provisions in the context of employment discrimination and truth-in-lending cases, citing several federal decisions. In the end, the court concluded that the provision requiring the parties to resolve their claims “by binding arbitration administered by the National Health Lawyers Association” was unenforceable as a matter of law. The trial judge further held that no portion of the arbitration clause was severable because he “would have to ‘blue pencil’ or rewrite the NHLA Rules to preserve them.” It is from that order that Sunrise appeals.

We begin by noting that the issue we are asked to decide today does not involve a claim that the arbitration agreement is unenforceable because of uncon-scionability. See Romano v. Manor Care Inc., 861 So.2d 59 (Fla. 4th DCA 2003) (finding both procedural and substantive unconscionability in nearly identical arbitration provision in nursing home contract). Instead the issue here is whether a court has the power—either generally or specifically under statute—to decline to enforce an arbitration agreement simply because it waives the judicial remedy of access to a court to resolve claims arising under statutory rights.

Generally speaking, there is no common law basis to refuse to enforce valid agreements to arbitrate by competent parties merely because they involve a waiver of statutory rights and remedies. See Pierce v. J.W. Charles-Bush Sec. Inc., 603 So.2d 625 (Fla. 4th DCA), decision approved in Turnberry Assoc. v. Service Station Aid, Inc., 651 So.2d 1173 (Fla. 1995). As we said in Pierce:

“If civil rights, antitrust and securities fraud claims are not inappropriate for arbitration, it is very difficult to imagine a civil claim in which an agreement to arbitrate would not be enforced.”

603 So.2d at 628.'

As we noted in Pierce, at one time courts might have seemed hostile to arbitration—it was seen as an attempt to oust courts of lawful jurisdiction—and the enforcement of such agreements became encrusted with judicial restrictions and procedural impediments. Any such hostility disappeared after a series of United States Supreme Court and Florida Supreme Court decisions emphasizing that arbitration agreements are now favored and will be enforced whenever possible. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (any doubts concerning scope of arbitrable issues should be resolved in favor of arbitration); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (“In creating a substantive rule applicable in state as well as federal courts, Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements.”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (arbitration not inappropriate for antitrust and RICO claims); Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (arbitration not inappropriate for securities fraud and rule 10b 5 claims), Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (no exemption for arbitration of age discrimination claim); see also Roe v. Amica Mut. Ins. Co., 533 So.2d 279 (Fla.1988) (arbitration is favored means of dispute resolution and courts indulge every reasonable presumption to uphold proceedings resulting in award); Miele v. Prudential-Bache Sec., 656 So.2d 470 (Fla.1995) (arbitration favored; statutory limitations and conditions for punitive damages award not applicable in arbitration in absence of plain legislative requirement); Turnberry Assoc. v. Service Station Aid, Inc., 651 So.2d 1173 (Fla.1995) (arbitration agreements favored and parties may waive right to have judge determine entitlement and amount of attorneys fees). Thus the present day rule in Florida is — as the last cited cases indicate — that limitations and conditions on the enforcement of arbitration agreements are appropriate only where the legislature has by statute plainly imposed them.

We are unable to find anything in the nursing home statutes imposing any such limitations or conditions on the enforcement of arbitration agreements in nursing home admission agreements. Nor has either of the parties called our attention to a statute indisputably doing so. We do know from other statutes that when the legislature wants to require specific contractual provisions waiving civil remedies, they know how to do so. See, e.g., § 672.316(2), Fla. Stat. (2003) (“[T]o exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability and in case of a writing must be conspicuous; and, to exclude or modify any implied warranty of fitness, the exclusion must be by a writing and conspicuous.”).

There is a statutory provision regulating contracts between nursing homes and their patients, which we set out in full in the margin. Clearly nothing in this statute purports to regulate how arbitration provisions shall be done in admission contracts. We are therefore unable to find any statutory authority allowing judges to refuse to enforce valid arbitration provisions in nursing home admission contracts of competent parties, for reasons other than un-conscionability.

In reversing the order denying arbitration, we have not expressed any opinion on the pending unconscionability claim. That should be analyzed, after receiving evidence, in accord with our Romano decision. We return the case to the trial court for further proceedings on that and all other remaining issues.

REVERSED.

TAYLOR, JJ., concurs.

GROSS, J., concurs in part and dissents in part with opinion.

GROSS, J.,

concurs in part and dissents in part.

I believe that the arbitration agreement in this case is substantively unconscionable because it does not provide an adequate mechanism for pursuing statutory rights and defeats the remedial purpose of the statute. See Romano v. Manor Care, Inc., 861 So.2d 59, 62-63 (Fla. 4th DCA 2003); Brasington v. EMC Corp., 855 So.2d 1212 (Fla. 1st DCA 2003). Therefore, I would remand for an evidentiary hearing directed at the issue of the procedural unconscionability of the arbitration clause.

      . Plaintiff also argued that enforcement of the arbitration provision should be denied because it was unconscionable, but the court reserved that issue for a later determination after an evidentiary hearing.

        . See § 400.151, Fla. Stat. (2003), which states:
      "(1) The presence of each resident in a facility shall be covered by a contract, executed by the licensee and the resident or his or her designee or legal representative at the time of admission or prior thereto and at the expiration of the term of a previous contract, and modified by the licensee and the resident or his or her designee or legal representative at the time the source of payment for the resident's care changes. Each party to the contract is entitled to a duplicate original thereof, printed in boldfaced type, and the licensee shall keep on file all contracts which it has with residents. The licensee may not destroy or otherwise dispose of any such contract until 5 years after its expiration or such longer period as may be provided in the rules of the agency. Microfilmed records or records reproduced by a similar process of duplication may be kept in lieu of the original records.
      (2) Each contract to which this section applies shall contain express provisions specifically setting forth the services and accommodations to be provided by the licensee, the rates or charges therefor, bed reservation and refund policies, and any other matters which the parties deem appropriate. The licensee shall attach to the contract a list of services and supplies available but not covered by the per diem rate of the facility or by Titles XVIII and XIX of the Social Security Act and the standard charge to the resident for each item. The licensee shall provide written notification to each party to the contract of any changes in any attachment thereto, no fewer than 14 days in advance of the effective date of those changes. The agency shall specify by rule an alternative method for notification of changes in the cost of supplies. If the resident is a party to the contract, the licensee shall provide him or her with a written and oral notification of the changes.”

      . We do not decide whether the contract in this case was made by competent parties, or that any person involved in the making of the contract was authorized to do so, as that issue has not yet been litigated or decided by the trial court.


author: PADOVANO, J.

text:
    Felix AGUILA, as personal representative of the Estate of Marilyn Aguila, Appellant, v. HILTON, INC., a Florida corporation, Charles Hilton, an individual, and Best Western Casa Loma Motel, Appellees.
    No. 1D02-5061.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Rehearing Denied Aug. 2, 2004.

      Clifford C. Higby of Bryant & Higby, Panama City; C. Steven Yerrid and Theresa L. Fiset of The Yerrid Law Firm, Tampa, for Appellant.
    John M. Fite of Barron, Redding, Hughes, Fite, Fensom, Sanborn & Kiehn, P.A., Panama City, for Appellees.
   PADOVANO, J.

This is an appeal from a final order dismissing a wrongful death case against the owners of a motel. The plaintiffs daughter was killed in a car wreck caused by an intoxicated young man who had been at a party at the motel. The theory of the plaintiffs ease is that the defendants are liable for the death because they promoted and sponsored underage drinking. We conclude that the complaint fails to state a cause of action for wrongful death against these defendants, because it does not allege any facts that could support a conclusion that the defendants owed a legal duty of care to the plaintiffs daughter. Therefore, we affirm.

The event that has become the subject of the controversy in this case took place in Panama City Beach on March 13, 2001, at a motel owned and operated by the defendants. At that time, the motel was filled with college students who were in town for spring break. A security guard walked past an open doorway to room 319 of the motel where a large number of young people had gathered and noticed that one of the occupants of the room was injured and lying on the floor. The security guard ordered everyone to leave the room while she called the police and emergency medical personnel. Among those asked to leave the room was Derrick Smith, an unregistered guest. The security guard knew that Smith and some of the others in the room were intoxicated.

Derrick Smith went down to the parking lot, got into his truck, and drove away. A short distance from the motel, Smith drove his truck into the rear end of a car, killing one of its occupants, Marilyn Aguila. Another person in the automobile, Glenn Per-muy, Jr., was seriously injured. He filed a suit against the defendants in this case, as well. Derrick Smith was convicted of manslaughter for the death of Marilyn Aguila and sentenced to ten years in prison.

The case against the defendants was based on a general claim that they created the atmosphere for a serious act of negligence. The plaintiff alleged that the defendants promoted their motel as the ideal place to “party” during spring break and that this term is understood to refer to drinking. According to the complaint, the defendants knew that some of the motel guests and their visitors were underage drinkers and that some of them drove automobiles. Additionally, the plaintiff alleged that the defendants were negligent in that they hired only one security guard, who was unable to adequately monitor the premises or patrol the parking lot. All of these facts, the plaintiff argued, created a risk to the motel guests and to. the general public.

The defendants moved to dismiss the complaint for failure to state a cause of action. They argued that the death was caused by the actions of Derrick Smith and that the facts alleged in the complaint did not bring the case within any exception to the general rule that a defendant cannot be held liable for the negligence of a third party. The trial court agreed and granted the motion.

In the order dismissing the case, the court reasoned that the duty element of negligence would have to be “stretched totally out of shape” to impose liability on the defendants for harm caused by someone who was not staying at the motel and had not been served alcohol by. the motel, to someone else who was also not staying at the motel. To hold the defendants liable under these circumstances, the trial court concluded, “would make a motel an insurer for all visitors during spring break.” The complaint was not amended after the entry of the order, and the dismissal became final. The plaintiff then filed the present appeal to seek review of the order.

Whether the allegations of a complaint are sufficient to state a cause of action is a question of law. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002); Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999). It follows that an order dismissing a complaint for failure to state a cause of action must be evaluated on appeal by the de novo standard of review. See Sarkis v. Pafford Oil Co. Inc., 697 So.2d 524, 526 (Fla. 1st DCA 1997). The appellate court must accept the allegations of the complaint as true, but is not required to defer to the trial court’s conclusions regarding the legal sufficiency of the allegations.

The issue in this case is whether the allegations of the complaint are sufficient to show that the defendants owed a duty of care to the plaintiffs daughter. To properly address this issue, we must first consider the general test for determining the existence of a legal duty as an element of negligence. In the leading case of McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla.1992), the Florida Supreme Court held that a legal duty exists if the defendant’s conduct creates a foreseeable zone of risk that poses a general threat of harm to others.

In the McCain case, an employee of the power company had improperly marked the location of an underground power line. The plaintiff, an operator of a mechanical trenching machine, was injured when the machine came in contact with the line located in an area not marked as dangerous. On these facts, the court concluded that the power company owed a duty to prevent the kind of injury that was sustained by the machine operator.

One important attribute of a legal duty that is assumed in many cases but not expressed is that the defendant must have had the ability to avoid the risk. This point is made in the McCain opinion by implication. Quoting its earlier opinion in Kaisner v. Kolb, 543 So.2d 732 (Fla.1989), the court said that a defendant who creates a foreseeable zone of risk has a duty “either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” McCain 593 So.2d' at 503. In this part of the opinion, the court clearly implied that the defendant must be in a position to control the risk. That was certainly the case in the controversy then before the court. The power company had exclusive control of the underground cable, and no one else knew of its exact location. The company could have minimized the risk of electrocution or avoided it altogether simply by marking the correct location of the cable.

In the present case, the plaintiff alleges that the defendants created a zone of risk to others by promoting underage drinking during spring break. However, this conduct connects the defendants with the death of the plaintiffs daughter only in the most general way. The collision leading to the death took place on a public road off the premises of the motel, and the risk that such a collision might have occurred did not arise from any act or omission of the defendants.

Perhaps it crossed the security guard’s mind that Derrick Smith might attempt to leave the motel in a motor vehicle, that he might be driving the vehicle, and that he might injure someone. But that much could be said of anyone who may have taken notice of the fact that Smith and the other young men and women at the party were intoxicated. A passerby in the hallway may have had the same fear, but that would not give rise to a legal duty on his part to take some kind of preventive action.

We acknowledge that the duties of a motel security guard would differ from those of a bystander in some situations, but the example illustrates that a legal duty does not exist merely because the harm in question was foreseeable. To the contrary, it is clear from McCain that the defendant’s conduct must “create” the risk. With this in mind, we can safely conclude that a legal duty is not established by evidence of foreseeability alone. See, e.g., Thompson v. Baniqued, 741 So.2d 629 (Fla. 1st DCA 1999) (holding that a neighbor had no duty to supervise a young child playing in her yard, even though she knew the child could injure himself if he ran into the street). There must also be some evidence that the risk was created by the alleged negligence of the defendant. In the present case, a reasonable person might think that the collision was foreseeable, but the allegations do not show that the risk of the collision was created by any act or omission of the defendant.

To illustrate this point, we need only ask ourselves what the security guard might have done differently. If she had not asked all of the intoxicated students to leave the room, they would have been free to stay. Perhaps no one would have left the room at that time. It does not follow, however, that the act of ordering all of the students out of the room created the risk. They were all free to leave of their own accord, and we cannot say how long they may have remained at the party had they not been asked to leave.

We find it significant that the security guard did not eject the students from the motel grounds. Some of them may have decided to remain at the motel in common areas. Others may have decided to walk to other parties in nearby motels. In this respect, the case is very different from Bardy v. Walt Disney World Co., 643 So.2d 46 (Fla. 5th DCA 1994). There, a Disney security guard ejected a drunken Disney employee from the premises and ordered the employee to remove his car, despite his protestations that he was too intoxicated to drive. We certainly agree that, on those facts, the risk of harm to the driver and others was a risk created by the defendant’s conduct. In the present case, however, the connection is much more attenuated. The security guard did not create the risk. She did not even know that Derrick Smith would be leaving in his own truck.

Nor could the security guard have taken any lawful action that would have prevented the collision. Unlike the risk in McCain, the risk in this case was not one that was within the control of the defendants. The plaintiff has alleged that the security at the motel was inadequate, but it is difficult to imagine how greater security would have prevented the death of his daughter. She died in a motor vehicle collision on a public street near the motel. The best motel security force available would not have been able to protect her from the risk of a car crash.

The plaintiff contends that the accident could have been prevented if the security guard had detained Derrick Smith, but this argument is also problematic. Derrick Smith was only one of many intoxicated students at the party. The security guard could not have known that he was the one who would later cause an accident. To satisfy the duty the plaintiff would impose in this case, the security guard would have had to detain all of the students in a safe place. This argument asks too much. The plaintiff has not shown that the security guard had the ability to care for all of the students, much less a legal right to immobilize them.

The main difference between this case and many others in which the courts have found a duty is that there is no relationship between the defendant and the plaintiff. For example, we found that a duty existed in Hardy v. Pier 99 Motor Inn, 664 So.2d 1095 (Fla. 1st DCA 1995), but that case involved an injury to a hotel patron on the premises of the hotel. We concluded that the hotel had a duty to exercise reasonable care to protect its patrons under the circumstances of the case. See also Hendry v. Zelaya, 841 So.2d 572 (Fla. 3d DCA 2003) (holding that a tavern was liable to a patron injured by another patron on the premises during a rowdy Memorial Day celebration). But these cases do not support the proposition that a motel has a duty to protect members of the general public from acts committed off the motel premises by motel patrons or their guests.

We acknowledge that, in certain well-defined circumstances, the owner of a business may have a duty to members of the general public for acts committed off the premises of the business. For example, a bar or tavern has a legal duty to refrain from serving alcoholic beverages to minors, and a breach of that duty may subject the bar or tavern to liability for injuries caused by an intoxicated minor. See Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984). In this case, however, the motel owned and operated by the defendants did not serve alcoholic beverages. Derrick Smith was served elsewhere, and that presents an entirely different issue.

Florida law does not impose a general duty on the owner of a business to ensure the safety of an intoxicated person who is about to leave the premises of the business. See Preferred Nat’l Ins. v. Fat Investors, Inc., 842 So.2d 1068 (Fla. 4th DCA 2003). By this principle, a motel that does not serve alcoholic beverages has no duty to ensure that an intoxicated person leaving the premises does not injure a member of the general public.

Based on all of the facts alleged in this case, we think that the trial court was correct in concluding that the defendants did not create a foreseeable zone of risk. This leaves us to determine whether there is any circumstance presented here that would expose the defendants to vicarious liability for the actions of Derrick Smith.

As a general principle, a party has no legal duty to control the conduct of a third person to prevent that person from causing harm to another. See Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985); Gross v. Family Servs. Agency, Lie., 716 So.2d 337, 338 (Fla. 4th DCA 1998). This principle is well accepted in the law. As the court noted in Boynton v. Burglass, 590 So.2d 446, 448 (Fla. 3d DCA 1991), “Florida courts have long been loathe to impose liability based on a defendant’s failure to control the conduct of a third party.”

There are exceptions to this rule, but they do not apply here. A duty to protect an unknown plaintiff from the conduct of a third party may arise if the defendant is in actual or constructive control of: (1) the instrumentality of the harm; (2) the premises upon which the tort is committed; or (3) the person who committed the tort. See Vic Potamkin Chevrolet, Inc. v. Home, 505 So.2d 560, 562 (Fla. 3d DCA 1987); Daly v. Denny’s, Inc., 694 So.2d 775, 777 (Fla. 4th DCA 1997). We can easily eliminate these exceptions. The injury did not occur on the premises, and the defendants did not control the instrumentality (the truck) that caused the injury. They did not own the truck, nor did they have the right to prevent the owner from using it. Likewise, the defendants did not have control over the tortfeasor, Derrick Smith. They had a right to ask him to leave the party in room 319, but no right to tell him what he could do once he had departed.

The defendants could not be held responsible for the actions of Derrick Smith on the theory they had the power to control him, because the complaint fails to allege the existence of a special relationship giving them a right of control. Florida has adopted the “special relationship” test set forth in the Restatement (Second) of Torts (1965). Section 315 of the Restatement provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

See Michael & Philip, Inc. v. Sierra, 776 So.2d 294, 298 (Fla. 4th DCA 2000).

The defining feature of the cases finding a special relationship under section 315(a) is that they all involve situations in which the defendant has a duty to care for the third party who caused the harm. The duty can be one that is established by law, as would be the case between a parent and child, but it may also arise from other kinds of relationships. For example, in Rupp v. Bryant, 417 So.2d 658 (Fla.1982), the court held that a school could be liable for a tort committed by a student on the school grounds. And in Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257 (Fla. 4th DCA 1985), the court held that a retirement home could be liable for a tort committed by a mentally impaired resident on the premises. Cf. Palmer v. Shearson Lehman Hutton, Inc., 622 So.2d 1085 (Fla. 1st DCA 1993) (holding that a securities dealer had no common law duty to prevent the fraud by a securities broker who was no longer within its employ and control when the misconduct occurred). It is clear from these decisions that a duty can be based on a special relationship only if the defendant has the right to exercise some control over the person who has committed the tort.

Here, the relationship between Derrick Smith and the motel was remote at best and it does not qualify as a special relationship that would allow the imputation of a duty under section 315(a) of the Restatement. Smith was not a registered guest nor otherwise a patron of the motel. Although he had been drinking, he was not served alcohol by anyone employed at the motel. Nor is there any allegation that the security guard voluntarily undertook the task of caring for Derrick Smith. She merely asked him, along with everyone else in the room, to leave the party.

In the absence of a special relationship, the fact that a defendant realizes or should realize that an action on his or her part is required to ensure the safety of another person does not alone create a duty to take that action. See Restatement (Second) of Torts § 314 (1965). The defendant must also have a right to take the action in question. As the court said in Garrison, implicit in the special relationship exception is the proposition that the special relationship “must include the right or the ability to control another’s conduct.” 484 So.2d at 1261. So, it does not make the plaintiffs case to argue that the motel security guard may have realized that Derrick Smith could harm someone. She was simply not in a position to do anything to lessen that risk. Short of committing false imprisonment, she had no authority to order that he be detained on the motel grounds.

The exception in section 315(b) of the Restatement is plainly inapplicable. It might be appropriate to find a legal duty under this subsection if the injured party was a business invitee and if the injury occurred on or near the defendant’s premises. See, e.g., Hall v. Billy Jack’s, Inc., 458 So.2d 760 (Fla.1984); Stevens v. Jefferson, 436 So.2d 33 (Fla.1983); Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA 1991). In that event, the duty would flow from the nature of the relationship. This principle cannot be applied here, however, because there was no relationship of any kind between the defendants and the plaintiffs daughter. To hold that the defendants had a duty to her would, as the trial court observed, be the equivalent of concluding that they are strictly liable for all injuries caused by those who come to Panama City Beach for spring break.

For these reasons, we conclude that the complaint fails to state a cause of action for wrongful death against the defendants in this case. The plaintiff made a number of other arguments on appeal and we recognize that we have not addressed all of them in this opinion. However, we have considered all of the arguments presented in the briefs and we find no reversible error.

Affirmed.

VAN NORTWICK and HAWKES, JJ., concur.

      . Although a legal duty may arise in other ways, the kind of legal duties the court was referring to in McCain are those that arise "from the general facts of the case.” A legal duty may arise from (1) legislative enactments, (2) judicial interpretations of legislation, (3) other judicial precedents, and (4) the general facts of the case. See McCain, 593 So.2d at 503 n. 2 (citing Restatement (Second) of Torts § 285 (1965)). In McCain, the Court noted that it was dealing with the last category—a duty arising from the foreseeable zone of risk created by the defendant. Id. See also Clay Elec. Coop., Inc. v. Johnson, 28 Fla. L. Weekly S866 (Fla. Dec. 18, 2003) (applying the test of duty based on the general facts of the case).

      . The court used a form of the word "create” several times to make the point that the foreseeable risk must be one that comes into being as a result of the defendant's act or omission. McCain, 593 So.2d at 502-503.


text:
    Glenn PERMUY, Jr., Appellant, v. HILTON, INC., a Florida corporation, d/b/a Casa Loma Motel, and Charles Hilton, an individual, Appellees.
    No. 1D02-5095.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Rehearing Denied Aug. 2, 2004.
    Valeria Hendricks, Kevin Britt Woods and Andrew P. Speranzini of Davis & Harmon, P.A., Tampa, for Appellant.
    John M. Fite of Barron, Redding, Hughes, Fite, Fensom, Sanborn & Kiehn, P.A., Panama City, for Appellees.
   PER CURIAM.

AFFIRMED. See Aguila v. Hilton, Inc., 878 So.2d 392, 2004 WL 1207660 (Fla. 1st DCA June 3, 2004).

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    Andre ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-859.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Rehearing Denied July 28, 2004.
    Bennett H. Brummer, Public Defender, and Mark Graham Hanson, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.

      Before RAMIREZ, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002), further explained on denial of rehearing, 837 So.2d 1177 (Fla. 3d DCA 2003); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002); and Woody v. State, 847 So.2d 566 (Fla. 3d DCA 2003); Bynes v. State, 854 So.2d 289 (Fla. 4th DCA 2003).


text:
    Johnny HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4805.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Rehearing Denied Aug. 17, 2004.
    Johnny Hodges, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Johnny Hodges (Defendant) filed a petition alleging ineffective assistance of appellate counsel. We grant the petition in part and order a new trial on the kidnapping count.

Evidence was presented at Defendant’s jury trial that the victim opened the door to allow Defendant, her great-grandson, to enter her home around 3:00 a.m. When they entered the living room, he hit her on the back of the head and she fell. Then he pulled up her nightgown, touched her bare buttocks, and choked her until she lost consciousness. When she awoke, she was tied to the bed, had a strange feeling in her buttocks as if she had been raped, and she saw her ear backing out; later, Defendant would plead guilty to leaving the scene of a one-vehicle accident in the victim’s car a few days later. The victim had a tear along her anus. Vaginal and rectal swabs revealed semen, but a DNA profile could not be detected. However, Defendant’s DNA matched a semen stain found on the victim’s bed sheet.

Defendant was charged with sexual battery, kidnapping, grand theft of a motor vehicle, and battery on a person sixty-five years of age or older. In the instant petition, he alleges that his appellate counsel was ineffective for failing to raise two issues of fundamental error in the jury instructions, one in connection with the kidnapping conviction and one in connection with the sexual battery conviction.

In count II, the kidnapping charge, the information alleged that the acts of confinement, abduction or imprisonment of the victim were done with the intent to commit or facilitate the commission of a sexual battery or battery on a person over sixty-five, contrary to Florida Statutes section 787.01(l)(a). The statute provides four alternative ways of committing kidnapping. The one with which Defendant was charged was section 787.01(l)(a)2: when the confinement is with the intent to “commit or facilitate commission of any felony.” Another means of kidnapping is when the confinement is done with the intent to “[ijnflict bodily harm upon or to terrorize the victim or another person.” § 787.01(l)(a)3. This type of kidnapping was not charged in the information.

Nevertheless, the jury was instructed that in order to find Defendant guilty of kidnapping, the state had to prove, beyond a reasonable doubt, either of two alternate intents:

JOHNNY JAMESON HODGES acted with intent to:
(a) commit or facilitate commission of a Sexual Battery or a Grand Theft (Motor Vehicle).
or
(b) inflict bodily harm upon or to terrorize the victim or another person.

In other words, the instruction allowed the jury to find Petitioner guilty of kidnapping if it found he committed an act which was not charged in the information.

Although the state has demonstrated that defense counsel did not object to the reading of this instruction, such error is fundamental. See Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001) (reversing kidnapping conviction because, although the defendant was charged with kidnapping with intent to commit or facilitate the commission of any felony, jury was also instructed to decide whether he committed a kidnapping with the intent to inflict great bodily harm upon or to terrorize the victim; even though there was no objection, convicting a defendant of a crime not charged was fundamental error and the verdict in such a case was a nullity); Taylor v. State, 760 So.2d 298, 299 (Fla. 4th DCA 2000) (reversing aggravated battery conviction, where the defendant had been charged with aggravated battery by using a deadly weapon, but the trial court instructed on aggravated battery causing permanent disfigurement, noting it is fundamental error to convict a defendant of a crime not charged, or to instruct the jury on an alternative theory which was not charged in the information).

Appellate counsel may be deemed to have rendered ineffective assistance in failing to raise an unpreserved issue on appeal if the issue is meritorious and rises to the level of a due process violation, constitutional violation, or another matter of fundamental error. Meyer v. Singletary, 610 So.2d 1329, 1331 (Fla. 4th DCA 1992) (citing Hargrave v. State, 427 So.2d 713 (Fla.1983)). We determine that this issue was meritorious and rose to the level of fundamental error; had appellate counsel argued the issue on appeal, this court would have reversed and remanded for a new trial on this count. Therefore, we order a new trial on the kidnapping charge.

We do not believe the alleged error in connection with the sexual battery count rises to the same level.

Accordingly, the petition is granted in part and denied in part.

GUNTHER, POLEN and TAYLOR, JJ., concur.