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    Paul Anthony BROWN, Appellant, v. STATE of Florida, Appellee. Paul Anthony Brown, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC01-1275, SC01-2713.
    Supreme Court of Florida.
    April 24, 2003.

      John J. Bonaccorsy, Daytona Beach, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Judy Taylor Rush, Kenneth S. Nun-nelley, and Douglas T. Squire, Assistant Attorneys General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Paul Anthony Brown, an inmate under sentence of death, appeals an order of the circuit court denying a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. These cases have been consolidated. For the reasons that follow, we affirm the denial of Brown’s postconviction motion and deny the petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Brown was found guilty of first-degree murder and sentenced to death based on the following facts:

On November 6, 1992, Roger Hensley (“Hensley”) was found dead on the bedroom floor of an apartment in Ormond Beach, Florida. He had been stabbed multiple times and his throat had been slashed. The police found two steak knives on the floor in the living room, one of which was covered in blood. Investigators documented blood spatter in several areas of the victim’s bedroom and bathroom, as well as fingerprints and bloody shoe prints inside the apartment. Investigators also discovered several empty beer bottles and a bag of a substance presumed to be marijuana. Missing were the victim’s white Nissan pick-up truck and keys thereto.
In October of 1992, Brown traveled from Tennessee to Daytona Beach where he met Scott Jason McGuire (“McGuire”). McGuire moved into Brown’s motel room and the two spent the next two weeks consuming alcoholic beverages and smoking crack cocaine. At some point Brown decided to return to Tennessee. According to McGuire, Brown offered him $1000 to drive Brown to Tennessee but McGuire’s vehicle did not work.
Thereafter, on November 5, Brown and McGuire approached Roger Hensley outside of a bar and, with Hensley driving, accompanied him to his apartment. McGuire testified that during the drive, Brown held a gun behind Hensley’s seat. McGuire also claimed that during before [sic] entering Hensley’s apartment, Brown whispered, “How would you like to do it?,” to which McGuire made no response. Inside, the three men each drank a bottle of beer, shared half of a marijuana cigarette, and talked about various things, including employment possibilities. Hensley invited Brown and McGuire to spend the night. However, before retiring to his bedroom, Hensley dropped a few dollars on the table and stated, “I don’t know what you guys’ game is. If you’ve come here to rob me, this is all the money I have. You can take it.” McGuire assured Hensley that they were not there to rob him and Hensley went to bed.
After Hensley left the room, Brown told McGuire he was going to shoot Hensley and steal his truck. McGuire objected to the use of the gun because of the noise. Appearing angry at McGuire’s response, Brown walked to the kitchen and got two steak knives, handing one to McGuire. McGuire threw the knife to the ground and denounced any intention of taking part in murder. Brown said he would take care of it himself and, in a symbolic gesture, dragged his hand across his throat.
Brown told McGuire to stand by the door to block Hensley’s escape and he entered the bedroom where Hensley was lying on the bed. McGuire then heard what he thought were stabbing sounds and heard the victim say “no.” Upon hearing something hit the floor, McGuire approached the bedroom where he noticed Hensley lying on the floor covered in blood and “making sounds” as if he was “struggling to breathe.” Brown was rummaging through the victim’s bedroom looking for car keys. He found the victim’s wallet and removed a twenty-dollar bill. Brown, who had blood on his hands, arms, and pants, then tried to wash it off. McGuire did not have any blood on him, but attempted to wipe his fingerprints from everything in the apartment that he had touched.
Ten or fifteen minutes later, the two left the victim’s apartment in Hensley’s truck, stopped at their motel room to collect their belongings, and drove to Tennessee. There, Brown burned his bloody pants in a stove and McGuire departed on foot a day or two later. Brown was arrested on November 8 at a farmhouse in Tennessee by agents from the Federal Bureau of Investigation (F.B.I.) on unrelated charges.
While in the custody of the F.B.I., Brown stated, “I’m a murderer, not only a bank robber”, and declared that he and another man named “Scott” killed “a white male” in Daytona Beach and stole his truck. Brown explained how the two met the victim and went back to the victim’s “motel room”, where they smoked “crack” cocaine and then stabbed and killed the victim. Brown claimed that it was McGuire’s suggestion that they find someone who owned a car, steal the car, and kill the owner. He also claimed that he stabbed the victim several times in the chest and once in the back but that McGuire slit the victim’s throat. Brown’s statements to the FBI were admitted in evidence at trial.
Brown also testified at trial and denied any involvement in the homicide, claiming instead that McGuire killed Hensley while Brown was asleep as a result of smoking marijuana. Brown testified that he awoke to find Hensley standing over him with a bloodied knife. He claimed that McGuire had stabbed Hensley once in the back and was attempting to slit his throat. Brown also claimed that after they left the apartment, McGuire threatened to frame him for the murder if Brown told anyone about it.

Brown v. State, 721 So.2d 274, 275-76 (Fla.1998) (footnotes omitted).

Brown was charged with first-degree murder and first-degree felony murder, and was convicted by a jury. Id. at 276. Following the penalty phase proceeding, the jury voted twelve to zero to recommend the death penalty. Id. at 277. On a finding of four aggravating circumstances and two nonstatutory mitigating circumstances, the trial court accepted the jury’s unanimous recommendation and sentenced Brown to death. Id. We affirmed Brown’s conviction and sentence on direct appeal. Id. at 275.

Brown filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on November 3, 2000. He filed an amended 3.850 motion on February 12, 2001, and a second amended motion on April 26, 2001, raising twenty-one claims. The trial court granted an evi-dentiary hearing, which was held on April 26-27, 2001. Subsequent to the hearing, the trial court entered a comprehensive order denying Brown all relief. Brown appeals that denial to this Court and also petitions this Court for a writ of habeas corpus.

3.850 APPEAL

Brown raises three claims in his 3.850 appeal: (1) that trial counsel rendered ineffective assistance of counsel, (2) that he is entitled to a new trial based on newly discovered evidence, and (3) that the cumulative effect of the errors resulted in an unfair proceeding.

Ineffective Assistance of Counsel

Brown raises numerous subclaims, in which he presents conduct that he believes represents ineffective assistance of counsel. We have rearranged the order of the subclaims presented by Brown, and will discuss them in the following order: (1) insufficient impeachment, (2) failure to object, (3) opening the door to damaging testimony by FBI agent Robert Childs, and (4) improper argument.

The framework for analyzing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court said:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been-different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland, test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Therefore, this Court must engage in an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. See id,

Insufficient Impeachment

Brown argues that trial counsel was deficient in his cross-examination of Scott McGuire, and he raises several instances of alleged ineffective performance in that regard. However, these instances satisfy neither the requirement of deficient performance nor the requirement of prejudice under Strickland.

Noting that Brown’s own detailed oral and written confessions convicted Brown, the trial court found that the matters raised as examples of insufficient impeachment were relatively insignificant matters. Furthermore, the judge ruled that if counsel’s performance was indeed deficient, there was not a reasonable probability that the outcome of the trial would have been affected.

We conclude that collateral counsel’s argument that counsel should have cross-examined McGuire on certain issues, or more strenuously examined him on certain issues, is essentially a hindsight analysis. “The standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result.” Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995). We find no error in the trial court’s analysis or conclusion.

Brown also contends that counsel was ineffective for failing to specifically ask each of the witnesses at trial whether Brown confessed to them. The trial court ruled, and we agree, that counsel’s failure to engage in this line of questioning was not deficient performance, especially considering that some of the witnesses were never in contact with Brown.

Failure to Object

Brown also alleges that counsel’s failure to object at several points during his trial constituted ineffective assistance of counsel. First, Brown cites a number of the prosecutor’s closing argument comments, which he alleges invoked improper opinion or belief. Brown asserts that defense counsel’s failure to object to these statements constituted prejudicial error. The trial court found that counsel was not deficient in failing to object to the prosecutor’s statements. Noting counsel’s hearing testimony in which he stated that being judicious with his objections is a part of his style, in order to avoid antagonizing the jury and losing credibility, the court found no demonstration of ineffectiveness or prejudice.

The instant case is similar to Chandler v. State, 702 So.2d 186 (Fla.1997), in which the prosecutor stated that the defendant was a “malevolent ... a brutal rapist and conscienceless murderer,” and Moore v. State, 820 So.2d 199, 208 (Fla.2002), in which the prosecutor made isolated comments referring to the defendant as the “devil.” In Chandler, this Court found that none of the complained-of comments were “so prejudicial as to corrupt the whole trial.” 702 So.2d at 191 n. 5. Having reviewed the challenged prosecutorial comments in the instant case, we find that the prosecutor’s comments were insufficient to undermine confidence in the outcome. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Therefore, we find no error in the trial court’s conclusion that even if counsel’s failure to object to the prosecutor’s remarks amounted to deficient performance, any prejudice suffered by Brown was slight, and does not rise to the level required under Strickland to merit relief.

Brown also argues that counsel was ineffective for failing to object to Scott McGuire’s testimony regarding statements made by the victim, Roger Hensley. The trial judge ruled that counsel’s failures to object to the statements made by McGuire were “trial tactics on his part not to object to what he perceived as very minor hearsay matters.” The judge then added that any prejudice Brown felt as a result of counsel’s performance, if found to be deficient, did not demonstrate prejudice as required by Strickland. Upon review, we agree that counsel’s performance was not deficient, and therefore, Brown’s claim does not merit relief.

Brown also argues that counsel was deficient for failing to object to a number of leading questions asked by the prosecution. This failure, Brown asserts, resulted in assisting the State to prove him guilty. The trial judge noted that many of the leading questions related to minor issues, and that counsel’s decision not to object was trial strategy. He also found that even if there was deficient performance, prejudice was not established. We concur in the trial court’s evaluation that, considering trial counsel’s philosophy, it does not appear to be deficient performance on his part not to object. “Counsel’s strategic decisions will not be second-guessed on collateral attack.” Johnson v. State, 769 So.2d 990, 1001 (Fla.2000) (citing Remeta v. Dugger, 622 So.2d 452 (Fla.1993)).

Brown also argues that counsel was ineffective for failing to object when McGuire testified that he was telling the truth. Brown argues that McGuire’s statement that he was telling the truth constituted improper opinion bolstering. This claim is properly considered first in the context of Strickland’s prejudice prong. This Court has stated that a claim need not be analyzed in the order set forth in Strickland, where it is clear that the prejudice prong cannot be met. See Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001).

Of course, McGuire’s testimony was preceded by the administration of an oath, by which McGuire attested that his testimony was truthful. Further, although McGuire was permitted to indicate that he was telling the truth, his testimony to that effect, as indicated in Brown’s own brief, also stated that he was telling the truth to help himself. Furthermore, this testimony occurred on direct examination, after which trial counsel had the opportunity to cross-examine McGuire, and did so. Therefore, any harm done to Brown by McGuire’s statement that he was telling the truth was countered by the fact that the jury was presented with evidence showing that McGuire had his own motives for testifying. Under Strickland, we find no error in the trial court’s conclusion that this claim merits no relief.

Brown also argues that counsel was deficient for failing to object when a witness identified an autopsy photo of the victim, and responded that the victim appeared in a worse condition than the witness had ever seen him. The trial judge found that although the witness’s comment was not relevant, counsel’s failure to object to the statement did not constitute deficient performance nor was prejudice established.

This claim represents another instance that can be disposed of under Strickland’s prejudice prong. At the point when the witness testified, the jury had already heard testimony about the crime scene from the maid who discovered the body, as well as from a detective who investigated the crime scene and was used to authenticate photos of the crime scene. Some of the photos included a view of the victim. Arguably, this evidence was even more harmful than the witness’s statement, and it highlights the overall insignificance of any prejudice flowing from the statement. Additionally, we conclude counsel’s failure to object to the comment did not constitute deficient performance, as it reflected counsel’s deliberate decision not to bring attention to the comment by objecting to it. Therefore, this claim fails both prongs of the Strickland analysis.

Brown further argues that trial counsel was ineffective for not objecting to certain comments the prosecutor made during opening statement. Again, the trial judge found that counsel’s actions were the result of tactical decisions, noting counsel’s testimony regarding his philosophy of not being an obstructionist and sticking to the major issues. Furthermore, the court ruled that even if the failure to object to the prosecutor’s comments was deficient, no prejudice was demonstrated. In Rhodes v. State, 638 So.2d 920 (Fla.1994), this Court found no error in the State’s opening statement where it detailed the manner in which the victim was killed. The State, this Court said, “clearly is entitled to present its version of the facts.” Id. at 925.

Like Rhodes, we find that counsel’s failure to object to the prosecutor’s comments cannot reasonably be considered deficient performance. Trial counsel’s decision not to object was a strategic decision that should not be second-guessed. See Johnson, 769 So.2d at 1001. Furthermore, we find that counsel’s failure to object did not prejudice Brown to the extent required under Strickland.

Opening the Door: FBI Agent Robert Childs

Brown also claims that counsel was ineffective when he opened the door to damaging testimony by FBI agent Robert Childs, which led to the admission of evidence of an armed standoff between Brown and FBI agents prior to Brown’s arrest in Tennessee. On re-cross, trial counsel asked FBI agent Robert Childs whether Brown had been given anything to drink by the agency on the day that he was arrested. Counsel opened the door to damaging testimony via this inquiry, because the State was then allowed to draw out testimony that Brown was involved in a two-hour armed standoff with FBI agents prior to his arrest, and that the alcohol, in this case whiskey, was used as an incentive to get Brown to surrender.

Brown’s claim is similar to one that this Court rejected in Johnson v. State, 769 So.2d 990 (Fla.2000). In Johnson, the defendant was on trial for multiple murders, as well as other felonies. At trial, counsel opened the door to testimony that the defendant had previously claimed that he would “act crazy.” Id. at 1000. On appeal, Johnson claimed that counsel’s action constituted ineffective assistance of counsel. At his evidentiary hearing, Johnson’s counsel indicated that he had a specific purpose for eliciting the testimony, to get evidence of defendant’s substantial drug use before the jury, even if it meant that the defendant’s potentially damaging statement would also be placed before the jury. In affirming the circuit court’s decision and refusing to grant relief on Johnson’s ineffective assistance of counsel claim, this Court gave great deference to the trial strategy, saying, “Counsel’s strategic decisions will not be second-guessed on collateral attack.” Id. at 1001. As in Johnson, trial counsel had a specific purpose for eliciting the testimony regarding the alcohol given to Mr. Brown. He hoped that this testimony would cast doubt on perhaps the most damaging pieces of evidence — Brown’s own incriminating statements while in FBI custody.

The trial judge did find that it was improper for counsel to open the door to the testimony about the armed standoff with Brown. However, the court also specifically found that the prejudice prong of the Strickland test had not been met, that opening the door to the agent’s testimony did not prejudice the outcome of the trial to the extent that Brown’s guilty verdict was rendered unreliable. In making that determination, the trial court emphasized Brown’s own confession and its harmonization with the physical evidence that linked Brown to the murder.

We find no error in the trial court’s analysis. Even if counsel was deficient in opening the door to Agent Childs’ testimony, we do not find that Strickland’s prejudice requirement is satisfied. Even in the absence of the evidence about the standoff, the jury was still exposed to Brown’s own incriminating statements, overwhelming physical evidence, and witness testimony connecting Brown to the victim’s murder. Therefore, any harm done by Childs’ testimony was neutralized, and the reliability of the proceeding was not compromised.

Brown also asserts that counsel was deficient for failing to depose Agent Childs before trial. This Court has held that when a failure to depose is alleged as a part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, identifying “a specific evidentiary matter to which the failure to depose witnesses would relate.” Magill v. State, 457 So.2d 1367, 1370 (Fla.1984). Here, Brown asserts that the failure to depose Childs ultimately resulted in the testimony about the armed standoff being admitted into evidence. This testimony, Brown claims, led the jury to convict him on the basis that he was a violent person. In his ruling, the trial judge tied this claim in with the other claim regarding Robert Childs, that counsel's performance was deficient where he opened the door to Childs’ damaging testimony about the armed standoff with FBI agents. However, the judge likewise ruled that counsel’s failure to depose Childs, while it may have been deficient performance, did not satisfy Strickland’s prejudice prong.

While we agree that counsel’s performance with respect to his handling of Childs’ testimony may have been deficient, thereby satisfying the first prong in the Strickland analysis, we find no error in the trial court’s conclusion that any deficient performance did not prejudice Brown to the extent that the outcome of the trial was compromised. Again, as the State notes, substantial evidence notwithstanding the testimony about the armed standoff was presented to the jury before it convicted Brown.

Improper Argument

Brown also alleges that counsel was ineffective due to remarks he made in his opening statement. Counsel said:

Mr. McGuire and Mr. Brown, they don’t go play golf together. They don’t do things like that. They do things like consume a lot of alcohol. They do crack cocaine. They hang out on the Boardwalk area, unemployed. It’s not a good life and it’s not a — it’s not something any of us would do, but it’s just a — that’s the way it was.

Based upon his evaluation of the testimony presented, the trial court found that counsel made a tactical decision to make the statements that he did, for the purpose of trying to dilute some of the damaging testimony the jury would later hear. In other words, defense counsel was explaining the real world the defendant lived in. Further, the court concluded again that sufficient prejudice had not been established. We again find no error in the trial court’s conclusions.

Brown also alleges that counsel was ineffective as a result of stating that the victim was “gurgling” on his own blood. Counsel’s comment is consistent with his explanation at the evidentiary hearing that he was trying to point out the overdramatization of the prosecutor’s argument. The trial court found that counsel’s statement did not prejudice Brown. Again, we emphasize that this Court will not second-guess counsel’s strategic decisions on collateral attack. See Johnson, 769 So.2d at 1001. Counsel’s comment, when weighed against the two-part test in Strickland, does not satisfy either prong. Though the word “gurgling” may have shock value, it does not rise to the level required by Strickland, particularly where, as here, trial counsel chose to use the word as a method of rebutting and minimizing the State’s argument.

Brown also asserts that counsel was ineffective as a result of making certain comments, including stating that Brown had “turned bad.” At the evidentiary hearing, counsel testified that his purpose in making such a statement was to be honest with the jury about what type of person they were dealing with. The trial judge found that this statement was a reasonable trial tactic on counsel’s part, that he was just being honest with the jury, and that it was not ineffective or deficient.

We agree with the trial court’s determination. Counsel’s comment was made during the penalty phase, a point at which Brown had already been found guilty of first-degree murder. At that point, counsel sought to lessen negative juror sentiment against Brown, and appealing to the jurors by pointing out Brown’s real life shortcomings was a tactic geared toward Brown’s benefit. Brown’s assertion that this particular statement led the jurors to vote to recommend the death penalty is wholly speculative. Therefore, Brown’s argument merits no relief.

Brown also claims that counsel was ineffective for failing, in closing argument, to make arguments that would have supported the defense theory of the case and that would have impeached the credibility of the State’s star witness, for making a statement of concession not supported by the evidence, and for making a statement prejudicial to Brown’s interests. Here, Brown raises and repeats many of the same issues already raised, only this time based on ineffective assistance of counsel in closing argument. These points can be summarily disposed of, because they can hardly be found to constitute error under this claim if they are not found to be error on other bases. “Although in hindsight one can speculate that a different argument may have been more effective, counsel’s argument does not fall to the level of deficient performance simply because it ultimately failed to persuade the jury.” Ferguson v. State, 593 So.2d 508 (Fla.1992). Thus, we deny Brown relief on his ineffective assistance of counsel claim.

Newly Discovered Evidence

Brown’s second argument on appeal is based on newly discovered evidence. Following trial, Brown became aware of Scott McGuire’s use of an alias, as well as a conviction McGuire received for aggravated burglary in Ohio and his subsequent escape from a correctional institution there. Brown asserts that his newly discovered evidence justifies the granting of a new trial because it would have shown that McGuire, not Brown, killed Roger Hensley to avoid detection, and this information, had it been available at trial, would have sufficiently impeached McGuire’s testimony so as to make him wholly incredible.

In order to obtain a new trial on the basis of newly found evidence, Brown was required to show that the evidence was “unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of the evidence] by the use of due diligence.” Hallman v. State, 371 So.2d 482, 485 (Fla.1979). Additionally, the evidence must be of such a nature that it would probably produce an acquittal on retrial. Jones v. State, 591 So.2d 911, 916 (Fla.1991).

On review, we find that Brown’s claim of newly discovered evidence does not warrant a new trial under the strict test set out in Jones. The probability that this evidence would have resulted in Brown’s acquittal at trial is extremely remote, at best, in light of the other evidence presented to the jury. Therefore, we find no error in the trial court’s determination that Brown is not entitled to relief on the basis of newly found evidence.

Cumulative Evidence

Brown asserts that the cumulative effect of counsel’s errors require that this Court grant him relief. The trial court quickly disposed of Brown’s cumulative error claim based upon its rejection of the individual claims. Each of Brown’s claims is insufficient under Strickland, and because this is the case, the claim for cumulative error fails as well. See Bryan v. State, 748 So.2d 1003, 1008 (Fla.1999) (concluding that defendant’s cumulative effect claim was properly denied where individual allegations of error were found to be without merit). Therefore we also deny Brown relief on the grounds of cumulative error.

HABEAS CORPUS PETITION

Brown’s petition for writ of habeas corpus contains two claims alleging ineffective assistance of appellate counsel. Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. 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:

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

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

Ineffective Assistance of Appellate Counsel: Failure to Object

Brown asserts that appellate counsel was ineffective for failing to raise on direct appeal prosecutorial misconduct which occurred during his guilt phase closing argument even though the alleged misconduct was not objected to at trial. This Court has held that “appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object.” Johnson v. Singletary, 695 So.2d 268, 266 (Fla.1996). “A timely objection allows the trial court an opportunity to give a curative instruction or admonish counsel for making an improper argument.” Card v. State, 803 So.2d 613, 622 (Fla.2001).

Brown asserts, however, that this claim survives the threat of being procedurally barred because the prosecutor’s comments rose to the level of fundamental error. This Court has acknowledged an exception to the contemporaneous objection rule where fundamental error has occurred as a result of unobjected-to comments. Fundamental error is the type of “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.” Id. In determining whether fundamental error has occurred where improper comments are not objected to, this Court examines the totality of the alleged errors. See id.

In Card, the appellant was convicted of first-degree murder and sentenced to death. He contended that objected-to and unobjected-to prosecutorial comments during closing argument deprived him of a fair trial. With respect to both the preserved and the unpreserved comments, this Court ruled that any errors that occurred on closing argument did not compromise the process or deprive Card of a fair trial. Importantly, this Court noted, “[T]he trial court found five aggravating circumstances, including CCP and HAC, two of the ‘most serious aggravators set out in the statutory sentencing scheme,’ no statutory mitigation, and insignificant non-statutory mitigating circumstances.” • Id. (citation omitted).

The factors presented here are much like those in Card, in that Brown was sentenced to death following a finding of four aggravating factors, including CCP and HAC, no statutory mitigation, and two nonstatutory mitigating factors. Additionally, Brown confessed in detail to his crime, significant physical evidence supported the State’s case, and the jury voted unanimously to recommend the death penalty.

We have already concluded under Brown’s 3.850 appeal that the prosecutor’s remarks during closing argument did not contribute in any substantial way to the jury’s recommendation of death for Brown. It is also our conclusion that the prosecutor’s remarks did not rise to the level of fundamental error needed to survive a procedural bar.

Appellate counsel, this Court has said, “cannot be deemed ineffective for failing to raise non-meritorious claims on appeal, or claims that do not amount to fundamental error.” happ v. Moore, 784 So.2d 1091, 1095 (Fla.2001) (citation omitted). Appellate counsel was not ineffective for failing to raise these issues because they are procedurally barred and do not constitute fundamental error.

Ineffective Assistance of Appellate Counsel: Failure to Appeal Trial Court Evidentiary Ruling

After being taken into custody and placed in a vehicle for transport, Brown began to make voluntary, unsolicited comments about his crimes. This continued upon his arrival at the jail, and the following day while being booked. During formal questioning about an unrelated topic, Brown continued to express his willingness to talk. The FBI agents, completely unaware of any link between Brown and a murder in Florida, meticulously informed him of his rights, and validated his waiver of those rights. Brown’s written statement indicated that he voluntarily offered the information that he gave, and he signed the statement. Prior to trial, Brown moved to suppress the oral and written statements. At the suppression hearing, the trial judge found that in each instance, Brown’s statements were voluntary, that Brown knew of his right to remain silent, that he knew of his right to have an attorney present, and that he waived those rights, having stated that he wanted to talk. Having found that each of Brown’s statements was voluntarily rendered, the trial court subsequently admitted the statements against Brown at trial. Brown asserts that appellate counsel’s failure to raise the trial court’s denial of his motion to suppress his oral and written statements constituted ineffective assistance of appellate counsel.

We find that the trial court conducted a sufficiently detailed inquiry into the circumstances surrounding the rendering of the statements, and that the statements were properly admitted into evidence. Appellate counsel is expected to raise those claims which are deemed to have the most merit, and is not ineffective for failing to raise meritless issues. See Downs v. Moore, 801 So.2d 906, 910 (Fla.2001). Therefore, appellate counsel’s performance did not constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance, nor did counsel’s failure to raise the instant issue compromise the appellate process to such a degree as to undermine confidence in the correctness of the result. See Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). As a result, Brown’s petition for habeas relief on this basis merits no relief.

CONCLUSION

For the reasons discussed above, we affirm the lower court’s denial of Brown’s 3.850 motion for postconviction relief and we also deny his petition for writ of habeas corpus.

It is so ordered.

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

      . The court found the following aggravating circumstances: (1) defendant was previously convicted of a felony involving the use or threat of violence to some person (assault with intent to commit armed robbery); (2) the murder was committed while engaged in the commission of a felony (robbery and burglary) and the murder was committed for financial gain, merged; (3) the murder was heinous, atrocious or cruel (HAC); and (4) the murder was cold, calculated and premeditated (CCP).

      . The court found the following nonstatutoiy mitigating circumstances: (1) Brown’s family background and (2) Brown's alcohol and drug use prior to the commission of the crime.

      . The issues presented to the trial court in the second amended motion were: (1) newly discovered evidence; (2) change in the law that would be retroactive under Delgado v. State, 776 So.2d 233 (Fla.2000); (3) ineffective assistance of counsel in cross-examination of Scott McGuire; (4) ineffective assistance of counsel in failing to object and preserve for appellate review improper comments and argument made by the State in opening and closing; (5) ineffective assistance of counsel resulting from prejudicial statements made by trial counsel in opening statement; (6) ineffective assistance of counsel through conflict of interest; (7) ineffective assistance of counsel in failing to object and preserve for appellate review improper comments, statements, and opinion or belief of the prosecutor in closing argument; (8) ineffective assistance of counsel in counsel’s omissions or failures to make argument in closing argument; (9) ineffective assistance of counsel in rebuttal argument; (10) ineffective assistance of counsel in cross-examination of Robert Childs; (11) ineffective assistance of counsel in failing to take the pretrial deposition of Robert Childs; (12) ineffective assistance of counsel in failing to object and preserve for appellate review inadmissible hearsay testimony of Scott Jason McGuire; (13) ineffective assistance of counsel in failing to object and preserve for appellate review admission into evidence of defendant’s confession before the corpus de-licti was proved; (14) ineffective assistance of counsel in failing to object and preserve for appellate review the State's use of leading questions in direct examination; (15) ineffective assistance of counsel in failing to object and preserve for appellate review the State's arguments in closing concerning burglary as an underlying felony; (16) ineffective assistance of counsel in failing to request the appointment of associate counsel; (17) ineffective assistance of counsel in failing to object and preserve for appellate review irrelevant testimony of Edward Schlau-pitz; (18) ineffective assistance of counsel in cross-examination of State’s witnesses; (19) per se ineffective assistance of counsel; (20) ineffective assistance of counsel in making a statement during closing that was highly prejudicial to the defendant; and (21) ineffective assistance of counsel during the direct examination of Scott Jason McGuire by failing to object and preserve for appellate review inadmissible testimony.

      . Brown invites this Court to apply the standard of per se ineffective assistance of counsel as set forth by the U.S. Supreme Court in U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). However, we find that Strickland, not Cronic, is the proper standard for analyzing Brown’s claims.

      . Brown alleges that trial counsel rendered ineffective assistance of counsel for failing to impeach McGuire on the following alleged inconsistencies:
      (1) At trial, McGuire testified that after arriving, but before entering Hensley's apartment, Brown said to him: “How would you like to do it?” (referring to "ripping off” Hensley); in his FBI interview, McGuire stated that Brown said "What I thought, you know, we should do," (referring to the employment opportunities the three men were discussing).
      (2) In his deposition, McGuire testified that Brown said that he was "dead set against killing him”; in his FBI interview, he stated that Brown said he was “dead set against killing the guy.”
      (3) At trial, McGuire testified that Brown had a gun behind Hensley's seat while Hensley was driving; in his FBI interview, McGuire stated that Brown never did anything with the. gun "but keep it hid."
      (4) At trial, McGuire testified that he threw the knife on the ground; in his FBI interview, McGuire stated that he set the knife on the table. >
      (5) At trial, McGuire testified that he wiped his prints off of the knife; in his deposition, McGuire initially stated that he did not do anything with the knife, but then after being questioned again, stated that he did wipe the prints off of the knife.
      (6) At trial, McGuire testified that he saw Hensley on the floor, bloodied; in his deposition, he stated that he saw Hensley half on the bed, half on the floor.
      (7) At trial, McGuire testified that Hensley said that he was a homosexual; in his deposition, McGuire said that he thought Hensley said he was bisexual, then admitted it was possible that Hensley said that he was homosexual.
      (8) At trial, McGuire testified that he sold Brown the ID card which was recovered by the police in Atlanta; in his deposition, McGuire said that he gave Brown the ID card in exchange for crack.


source: Caselaw Access Project

author: PER CURIAM. WELLS, J., LEWIS, J.,

license: Public Domain

text:
    PHYSICIANS HEALTHCARE PLANS, INC., et al., Petitioners, v. Raymond PFEIFLER, et ux., Respondents. Kurshid Kahn, M.D., et al., Petitioners, v. Raymond Pfeifler, et ux., Respondents.
    Nos. SC01-2062, SC01-2079.
    Supreme Court of Florida.
    May 1, 2003.

      Louise H. McMurray and Douglas M. McIntosh of McIntosh, Sawran, Peltz & Cartaya, Miami, FL, on behalf of Physicians Healthcare Plans, Inc.; F. Bryant Blevins of Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, FL, on behalf of Ronald S. Gup, M.A., etc.; Kevin P. O’Connor of O’Connor, Chimpoulis, Res-tani, Marreo & McAllister, P.A., Coral Gables, FL, on behalf of Ralph Greenwasser, Jr., D.O.; and Nancy W. Gregoire and Michael J. Rotundo of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, FL, on behalf of Khurshid Khan, M.D., et al., Petitioners.
    Gary M. Farmer, Jr. of Gillespie, Goldman, Kronengold & Farmer, P.A., Fort Lauderdale, FL; Charles J. Crist, Jr., Attorney General, and Charles M. Fahl-busch, Assistant Attorney General, Fort Lauderdale, FL; and Michael S. Freed-land of The Law Offices of Freedland & Glassman, Weston, FL, for Respondents.
   PER CURIAM.

Physicians Healthcare Plans, Inc., Dr. Kurshid Kahn, and others petition this Court for a writ of prohibition. We have jurisdiction. See art. V, § 3(b)(7), Fla. Const.

The instant case arose from a 1998 medical malpractice action by Raymond and Cynthia Pfeifler against Physicians Healthcare Plans, Inc. (Physicians), Dr. Kurshid Kahn (Kahn), and others, which was set for trial on the senior judges’ docket in the Seventeenth Judicial Circuit. In July 2000, the codefendants filed a motion in circuit court to return the case to the elected circuit judge, arguing that the assignment to a senior judge violated both this Court’s general guidelines and procedures for the assignment of senior judges and the Florida Constitution. The circuit court heard argument in November 2000, denied the motion, but certified the issue as being of great public importance and invited the codefendants to seek a writ of prohibition to resolve the issues presented.

Petitioners Physicians and Kahn have filed two separate petitions for writs of prohibition with this Court. Both petitions raise a number of challenges to the senior judges’ docket in the Seventeenth Judicial Circuit and ask this Court to prohibit the assignment of senior judges to preside over “long trial” medical malpractice and other “complex litigation” cases. We have consolidated the cases as they present the same issues for the Court’s resolution.

Before considering the challenges raised in the petitions, we find it necessary to explain the background relating to the assignment of senior judges. For the purposes of judicial administration, a “retired judge” is defined as a judge not engaged in the practice of law who has been a judicial officer of this state. See Fla. R. Jud. Admin. 2.030(a)(3)(B). Section 25.073(1), Florida Statutes (2001), also specifies that a retired judge may not have been defeated in seeking reelection or retention to his or her last judicial office. In 1990, Florida Rule of Judicial Administration 2.030(a)(3) was amended to provide that a retired judge serving on assignment to temporary judicial duty may be referred to by the honorary designation “senior judge.” This designation had no effect on the responsibilities or conduct of the retired judge. See In re Amendment to Rules of Judicial Admin., 560 So.2d 786, 787 (Fla.1990).

This Court has exclusive jurisdiction to review judicial assignments based upon article V, section 2(a)-(b) of the Florida Constitution. Article V, section 2(a) gives this Court authority to adopt rules for the administrative supervision of all courts. Article V, section 2(b) gives the chief justice of this Court, as the chief administrative officer of the judicial system, “the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified and to delegate to a chief judge of a judicial circuit the power to assign judges for duty in that circuit.” Florida Rule of Judicial Administration 2.050(b)(4) delegates the chief justice’s assignment power to the chief judges of the judicial circuits to “assign any judge to temporary service for which the judge is qualified in any court in the same circuit.” “When a chief judge exercises this delegated assignment authority, the judge is acting under the Chief Justice’s constitutional power to make temporary judicial assignments to ensure the speedy, efficient, and proper administration of justice within the various circuits.” Wild v. Dozier, 672 So.2d 16, 18 (Fla.1996). Because of the vital role temporary judicial assignments play in the administration of our court system, this Court must have exclusive jurisdiction to review such assignments under its article V, section 2(a) authority to oversee the administrative supervision of all courts. See id.

This Court has long recognized the necessity of assigning retired judges and justices to judicial service in Florida courts. See In re Assignments of Justices & Judges, 222 So.2d 22 (Fla.1969). As we have explained, “unless retired justices and judges are assigned to ... other courts, long delays in the discharge of case loads of some of the trial courts will result.” Id. at 23. Thus, retired judges have provided valuable service to Florida’s judicial system for many years by assisting with increased caseloads and providing relief to active judges when they are ill or disqualified. See In re Rules Governing Assignment to Duty of Retired Justices & Judges, 239 So.2d 254 (Fla.1970). “Were it not for the availability of this resource, the delays in scheduling hearings and trials ... would be much greater.” In re Certification of Judicial Manpower, 592 So.2d 241, 246 (Fla.1992). Furthermore, “[t]he use of retired judges is the most cost effective and flexible program we have to address calendaring problems and emergencies as they arise.” In re Certification of Judicial Manpower, 576 So.2d 1303, 1307 (Fla.1991). We have repeatedly noted that the services of retired judges “are available at much less expense than full-time judges.” In re Certification of Need for Additional Judges, 669 So.2d 1037, 1039 (Fla.1996). Senior judges currently perform the work of approximately thirty-five full-time judges, at a cost of about $2.9 million, a small fraction of the cost of that number of full-time judges. See Comm. On Appointment and Assignment of Senior Judges, Report and Recommendations of the Committee On Appointment and Assignment of Senior Judges, 4 (Feb. 22, 2002) (on file with Clerk, Fla. Sup. Ct.).

It is against this background that we address the petitioners’ challenges to the assignment of senior judges. The petitioners claim that the use of senior judges violates the suffrage rights of voters; the assignment of cases to the senior judges’ docket in the Seventeenth Judicial Circuit constitutes an improper permanent assignment and violates the constitutional prohibition against the creation of special court divisions; the assignment of a retired judge who resides in another judicial circuit violates the constitutional judicial qualifications; the assignment of complex cases to the senior judge docket results in delay which constitutes an unconstitutional restraint on access to courts; judges younger than seventy years of age and those who are not eligible for retirement benefits under the state retirement system do not meet the constitutional definition of a retired judge; and senior judges may not be appointed for matters of convenience.

The petitioners argue that the use of senior judges violates their suffrage rights. See Art. V, § 10(b) Fla. Const, (providing for election of circuit court and county court judges unless a majority of the voters in the jurisdiction approve a local option to select judges by merit selection and retention); id. § 11(b) (providing that when a vacancy occurs on a circuit or county court where the judges are elected by the voters the governor shall appoint a judge to fill the vacancy but an election shall be held to fill the judicial office at the end of the appointed term). The petitioners contend that voters are being deprived of the right to have their cases tried by judges who are accountable to the public because senior judges are not elected to judicial office. However, constitutional provisions must be read in pari materia “to form [a] congruous whole so as not to render any language superfluous.” Department of Envtl. Prot. v. Millender, 666 So.2d 882, 886 (Fla.1996). The Florida Constitution specifically grants the chief justice power to assign retired justices or judges to temporary duty in any court for which they are qualified and the authority to delegate this power to the chief judge of a judicial circuit. See art. V, § 2(b), Fla. Const. Thus, where appointments fall within the parameters outlined in this provision, the Florida Constitution obviously permits appointment of nonelected judges and does not consider this to be a violation of suffrage rights.

Next the petitioners contend that the use of senior judges in the Seventeenth Judicial Circuit constitutes an improper permanent assignment, which violates the chief justice’s constitutional authority to assign retired judges to “temporary duty.” Art. V, § 2(b). Based upon our previous cases, we can glean some basic constitutional parameters relating to the temporal nature of judicial assignments. A county judge cannot be assigned to perform solely circuit court work, and vice versa, unless the assignment is for a relatively short time. See Payret v. Adams, 500 So.2d 136 (Fla.1986); Crusoe v. Rowls, 472 So.2d 1163 (Fla.1985). However, a judge may be assigned to hear other court work on a temporary, regular basis as long as the assignment is directed to a specified class of cases, is used to maximize the efficient administration of justice, and supplements and assists the judges in the other court rather than replaces them. See Holsman v. Cohen, 667 So.2d 769 (Fla.1996); Wild; Crusoe.

In determining whether a judicial assignment is a temporary assignment under Florida Rule of Judicial Administration 2.050(b)(4), this Court considers more than the duration of the individual assignment. The successive nature of the assignment, the type of case covered by the assignment, and the practical effect of the assignment on the court’s jurisdiction over a particular type of case also' must be considered. See Wild. At one end of the spectrum, this Court has concluded that successive assignments totaling more than two years may be considered temporary where the class of cases covered by the assignment is limited and the practical effect is to assist the judges rather than usurp the court’s jurisdiction over a particular type of case. See Crusoe. However, successive and repetitive assignments which might be valid if considered individually are not temporary where the practical effect is to create a de facto permanent circuit judge by administrative order. See Payret.

The petitioners have not challenged specific successive senior judge assignments, but instead make a blanket claim that the senior judge docket in the Seventeenth Judicial Circuit is not a temporary assignment. However, even assuming that some of the senior judge assignments have been successive, this Court has approved other successive judicial assignments. See Wild (approving successive six-month assignments spanning four years of county judge to preside in circuit court over half of all felony cases in a county); Rivkind v. Patterson, 672 So.2d 819, 820-21 (Fla.1996) (approving successive monthly assignments spanning several years as “a logical and lawful means to ensure the expeditious and efficient resolution of domestic violence issues in the Eleventh Circuit”); J.G. v. Holtzendorf 669 So.2d 1043 (Fla.1996)(approving successive six-month assignments of county judge to hear most, though not all, of the juvenile cases in the county and a few other circuit court actions over the course of five years); Hols-man (approving successive monthly assignments spanning several years of circuit court judge to handle a limited number of county court domestic violence misdemeanors in special domestic violence court); but see Payret (disapproving successive one-year assignments of county court judge assigned to hear all circuit court matters in special jury district of Fifteenth Judicial Circuit over five years).

Under Wild, however, the successive nature of the assignment is only one of three factors to be considered in determining whether an assignment is temporary. The type of case covered by the assignment and the practical effect of the assignment on circuit court jurisdiction over a particular type of case must also be considered. See Wild, 672 So.2d at 19. In the instant case, there is a factual dispute over the type of cases handled by the senior judge docket. The petitioners contend that the senior judge docket handles only complex, long-duration cases. The respondents counter that the records of the senior judge docket show that a wide range of circuit court cases and matters are being handled by senior judges. In fact, the circuit court’s assignment records indicate that cases are assigned to senior judges primarily because of overcrowded and backlogged calendars in both the civil and criminal court dockets or because the case is likely to be one of long duration. The docket records of the elected judges also indicate that not all long-duration trials are transferred to the senior judge docket. Senior judge utilization statistics reflect senior judge assignments in each division of the Seventeenth Judicial Circuit, and far more in the criminal division than in any other. Further, as noted in the procedures for assignment of senior judges issued by this Court and the forms for senior judge assignments, we conclude that the senior judge assignments in the Seventeenth Judicial Circuit are compatible with the instructions and the guidance of this Court.

As to the final Wild factor of the practical effect of the assignment on circuit court jurisdiction, the senior judge assignments here are used to maximize the efficient administration of justice and have the practical effect of supplementing and assisting the circuit court judges rather than usurping the judges’ jurisdiction over a particular type of case. Under these criteria, we conclude the senior judge assignments are temporary and thus do not violate the constitutional parameters of article V, section 2(b).

Unlike the judicial assignment cases cited above, the petitioners here challenge more than the temporal nature of the senior judge assignments. The petitioners also contend that the senior judge docket is a de facto complex case division which cannot be established by administrative order, but must be established through a local rule which is approved by this Court. The petitioners note that the administrative judge who handles requests for transfer to the senior judge docket in the Seventeenth Judicial Circuit has described the docket as “our complex litigation division,” handling “cases that take more than three weeks to try.”

Pursuant to Florida Rule of Judicial Administration 2.050(b), chief judges of the circuit courts issue administrative orders to coordinate administrative matters within their jurisdiction. Unlike local rules, administrative orders generally do not have to be approved by this Court. As explained in In re Report of Commission on Family Courts, 646 So.2d 178, 181 (Fla.1994), divisions of Florida courts are to be established through local rules approved by this Court. See also art. V, § 7, Fla. Const.; § 43.30, Fla. Stat. (2001). Under the provisions of rule 2.050, local rules must be approved by a majority of the judges in a circuit, must be noticed and advertised, and must be approved by this Court.

Thus, if the senior judge docket is deemed a “division” it would need to be created by local rule and approved by this Court. However, this Court has approved the creation of a drug “division” of the criminal court created by administrative order in the Thirteenth Judicial Circuit. See Mann v. Chief Judge of the Thirteenth Judicial Circuit, 696 So.2d 1184 (Fla.1997). As this Court explained, despite its characterization as a division, the drug court was “more properly viewed as a specialized section or subdivision of the criminal division of the circuit court.” Id. at 1185. In Mann, we cited our previous opinion in Administrative Order Fourth Judicial Circuit (Division of Courts), 378 So.2d 286, 286 (Fla.1979), for the proposition that the Florida Constitution “only requires the establishment of subject matter divisions, i.e., criminal, civil, juvenile, probate, and traffic.” Accordingly, we concluded that the drug court division at issue in Mann was properly created by administrative order. 696 So.2d at 1185. We further noted that it would place “too great a burden upon the efficient administration of justice ... [t]o require every specialized section of the major subject-matter divisions of a court to be approved by local rule.” Id.

In light of our reasoning in Mann and the senior judge utilization statistics for the circuit, we conclude that the use of senior judges to relieve overcrowding of the civil and criminal dockets in the Seventeenth Judicial Circuit does not constitute a complex case division that requires approval by local rule. Thus, the senior judge assignments are proper via administrative order of the chief judge.

Next the petitioners argue that the assignment of a retired judge who resides in a different judicial circuit violates the constitutional eligibility requirements of article V, section 8 of the Florida Constitution. This section provides in pertinent part that “[n]o person shall be eligi-. ble for office of justice or judge of any-court unless the person is an elector of the state and resides in the territorial jurisdiction of the court.” Despite this seeming constitutional restriction, this Court has ruled that a circuit judge may be assigned temporarily to serve in a circuit other than the one in which he or she was elected. See Card v. State, 497 So.2d 1169 (Fla.1986); see also Judges of Polk County Court v. Ernst, 615 So.2d 276 (Fla. 2d DCA 1998) (concluding that a county judge may be temporarily assigned to serve outside the county where elected). Based upon these cases, we find no impediment to a similar temporary assignment of a senior judge. Further, as we explained in In re Report & Recommendations of the Committee on Appointment & Assignment of Senior Judges, 847 So.2d 415, 2003 WL 1987980 (Fla. May 1, 2003), “the accountability for senior judges rests with the chief justice rather than the voters of a particular circuit or district. Because the chief justice’s authority and responsibility extend throughout the state, the chief justice can assign a senior judge to duty without limitation to the jurisdiction of the senior judge’s prior service.” op. at 423. Thus, we find no merit to this challenge.

The petitioners argue that the assignment of complex cases to the senior judge docket results in delay which constitutes an unconstitutional restraint on access to courts. See art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay.”). However, most of the petitioners’ delay arguments seem to be addressed to the crowded civil docket and the resulting delay of civñ litigation in general. The petitioners have made no convincing arguments that these cases would be resolved any more quickly if they remained on the regular civil docket. Statistics indicate that the Seventeenth Judicial Circuit is very efficient in its management and administration of judges and the conduct of its jury trials. It is counterintuitive to assume judicial efficiency would improve if we reduced the number of judges handling cases in the circuit by eliminating the use of senior judges. As noted above, senior judges currently perform the work of approximately thirty-five full-time judges statewide. Our judicial system would be severely hamstrung without these services. See, e.g., In re Certification of Judicial Manpower, 592 So.2d 241, 246 (Fla.1992) (“Florida trial courts have continued to address workload pressures by relying heavily on the temporary assignment of senior judges.”). We would all like to see cases disposed of expeditiously. However, limited judicial resources and burgeoning court dockets require that the chief judges retain the freedom to manage the resources for “the efficient and proper administration of all courts within [the] circuit.” Fla. R. Jud. Admin. 2.050(b)(3). “[A]s the administrative officer of all courts within a judicial circuit, the chief judge is best equipped to assess the needs of each trial court and to allocate the judicial labor available within the circuit accordingly.” Wild, 672 So.2d at 17-18 (footnote omitted).

The petitioners make two challenges relating to the definition of a “retired judge.” First, they argue that only those judges who have reached the constitutional age of retirement, seventy years of age, meet the definition of a retired judge who may be temporarily appointed to judicial service under article V, section 2(b). The petitioners rely upon the judicial eligibility provision in article V, section 8 of the Florida Constitution, which provides, in pertinent part, that “[n]o justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.” The petitioners contend that when the mandatory retirement provision in article V, section 8 is read in pari materia with the judicial appointment power in article V, section 2(b), we must conclude that only those judges who have reached retirement age are eligible for temporary appointment. Second, the petitioners contend that only those judges who are eligible for retirement benefits under the state retirement system qualify as retired judges who may be temporarily appointed to judicial service under article V, section 2(b). Thus, the petitioners argue, persons who have resigned from judicial office or have chosen not to seek reelection to judicial office are not qualified for appointment as senior judges. The petitioners argue that these eligibility restrictions on the appointment of senior judges diminish the intrusion on the constitutional right to suffrage as the judges who have performed the required years of judicial service have withstood the challenge of election and reelection and have a demonstrated history of support by their electors.

We are not persuaded by either argument. The Florida Constitution gives the chief justice authority to assign “retired justices or judges” to temporary duty. Art. V, § 2(b), Fla. Const. For the purpose of judicial administration, a retired judge is defined as “a judge not engaged in the practice of law who has been a judicial officer of this state.” Fla. R. Jud. Admin. 2.080(a)(3)(B). Florida Statutes also define a retired judge as “any former justice or judge” who has not been defeated in seeking reelection or retention in his or her last judicial office and is not engaged in the practice of law. See § 25.073(1), Fla. Stat. (2001) (emphasis added). Thus, under both the Rules of Judicial Administration and the Florida Statutes there are only two restrictions on the eligibility of retired judges who may be assigned to temporary judicial duty: they may not be engaged in the practice of law; and they may not have been defeated for reelection or retention in their last judicial office.

In our recent review of the Report and Recommendations of the Committee on the Appointment and Assignment of Senior Judges, we concluded that “deference to the constitutional electoral process dictate[s]” that “judges or justices who fail to win reelection or retention in their last judicial position are not eligible for senior judge service.” In re Report & Recommendations of the Committee on Appointment & Assignment of Senior Judges, op. at 6, 847 So.2d 415, 418, 2003 WL 1987980 (Fla. May 1, 2003). However, the same concerns do not attend the temporary assignment of qualified and competent judges who have chosen to resign from judicial office before reaching the constitutional age of retirement or who are not yet eligible for retirement benefits under the state retirement system. Thus, we find no merit to the definition challenges raised by the petitioners.

Finally, the petitioners argue that senior judges may not be appointed for matters of convenience and instead all senior judge appointments must be measured by an “emergency of public business” standard. The petitioners cite our opinion in Spector v. Glisson, 305 So.2d 777 (Fla.1974), to support the “emergency of public business” standard. Spector involved the question of whether a Supreme Court justice’s resignation tendered for a future date created a current vacancy that should be filled during an upcoming general election. In concluding that a present vacancy had been created and that the vacancy could be filled in the upcoming election, this Court stated:

It has been said that the only excuse for the appointment of any officer made elective under the law is founded on the emergency of the public business and that when an elective office is made vacant the policy of the law is to give the people a chance to fill it as soon as possible.

Id. at 781 (quoting 63 Am.Jur.2d, Public Officers and Employees § 128). When considered in its proper context, this opinion neither addressed the chief justice’s constitutional power to assign judges to temporary duty nor created an “emergency of public business” before that power could be exercised.

The express language of the constitutional provision which gives the chief justice the power to appoint judges does not restrict the power to “emergencies.” Indeed, this Court has consistently measured the power to make temporary assignments by a standard of flexibility and efficiency. See, e.g., Rivkind, 672 So.2d at 820-21 (“We find that the judicial assignments at issue constitute a logical and lawful means to ensure the. expeditious and efficient resolution of domestic violence issues in the Eleventh Circuit.”) (emphasis added); Wild, 672 So.2d at 18 (“When a chief judge exercises this delegated assignment authority, the judge is acting under the Chief Justice’s constitutional power to make temporary judicial assignments to ensure the speedy, efficient, and proper administration of justice within the various circuits.”) (emphasis added); Holsman, 667 So.2d at 772 (“The assignment ... is used to maximize the efficient administration of justice.... ”); Crusoe, 472 So.2d at 1165 (“Flexibility must be given the chief judge to utilize effectively judicial manpower in the mutual assistance of each trial court.”). Thus, we conclude that an assignment which meets the constitutional requirement of “temporary duty” need not be based on an emergency of public business.

For the reasons discussed above, we conclude that the assignment of cases to the senior judge docket in the Seventeenth Judicial Circuit is constitutional and in accord with applicable law. Thus, we deny the petitions for writ of prohibition, lift the stay on further proceedings below, and remand this cause to the Seventeenth Judicial Circuit.

It is so ordered.

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

WELLS, J., concurs with an opinion.

LEWIS, J., concurs in part and dissents in part with an opinion.

PARIENTE and QUINCE, JJ., concur in result only.

WELLS, J.,

concurring.

I concur with the majority’s decision.

I write to express my view, however, that it is clearly necessary to the proper administration of justice in our trial courts for the chief judge and trial counsel in each circuit to have an ongoing meaningful discussion about the type of problems which have been raised in these proceedings and before our Committee on the Appointment and Assignment of Senior Judges. We on this Court are very dependent on the chief judges of the circuits to exercise their discretion in the administration of the circuits because each circuit has different problems which can only be effectively worked upon by those who have daily experience at the local level. The chief judges and their administrative judges benefit from regular and substantive meetings with trial counsel. Many of our chief judges presently do this. However, I believe that there needs to be a regularly working committee in each circuit for this purpose. I urge that in each circuit a bench-bar committee be established and that there be a meeting of this committee at least once every three months. This committee should consist of the chief judge of the circuit, all administrative judges in the circuit, and selected counsel participants who are active trial lawyers in the circuit. I suggest that the counsel participants be either some or all of the circuit’s representatives on the Board of Governors of The Florida Bar or their nominees.

LEWIS, J.,

concurring in part and dissenting in part.

While I agree with the rejection of several challenges presented here, I write to express my disagreement with the majority’s determination that the assignments of senior judges in the Seventeenth Judicial Circuit are indeed “temporary,” and that the circuit has not effectively created a special senior division for the purpose of trying complex civil cases. I believe that the pattern of assigning such cases in that circuit exceeds the constitutional parameters permitting the assignment of senior judges for temporary service. In approving this de facto division, I believe this Court has permitted the concept of temporary assignment — conceived to serve important public interests — to evolve into a constitutionally impermissible broad rule of convenience. Moreover, I believe a separate “complex case” or “senior judges’ ” docket has been created in violation of this State’s constitutionally mandated court structure. Thus, for the reasons articulated herein, I must dissent from the majority’s determination that the assignment process in the Seventeenth Judicial Circuit is constitutionally proper.

The ability of the Chief Justice of this Court to make temporary judicial assignments is grounded in the need to ensure the speedy, efficient, and proper administration of justice. See Wild v. Dozier, 672 So.2d 16, 18 (Fla.1996). Senior judges are a vital part of achieving this important goal. By appointing senior judges, judicial circuits can increase case disposition, address court emergencies, and solve calendar conflicts in a cost-effective manner. However, neither the need for efficiency nor the corresponding ability of senior judges to meet that objective justifies exceeding the constitutional requirement that nonelected judges receive assignment on a temporary basis, only. See art. V, § 2(b), Fla. Const. We cannot allow the goal of judicial efficiency, however laudable it may be, to trammel clear and direct constitutional directives. See Wild, 672 So.2d at 21 (Kogan, J., concurring in part and dissenting in part).

In reaching its decision, the majority must engage in a “judicial wink” as it considers the true definition of “temporary.” As recognized by this Court, “[t]em-porary is an antonym for permanent.” Crusoe v. Rowls, 472 So.2d 1168, 1165 (Fla.1985) (internal quotation marks omitted). A temporary assignment, by definition, cannot “usurp, supplant, or effectively deprive circuit court jurisdiction of a particular type of case on a permanent basis.” Id. Our decision in Payret v. Adams, 500 So.2d 136 (Fla.1986), compels us to be wary against circumstances rendering de facto permanency to allegedly temporary assignments. See id. at 138 (invalidating an assignment that was successive and repetitive, having been renewed annually for a period of five years). Thus, we must examine the judicial assignment’s duration as well as its nature, the type of cases covered, and the practical effect of the assignment on circuit court jurisdiction over a particular type of case. See Wild, 672 So.2d at 19.

The regularized process of assigning complex civil cases to senior judges in the Seventeenth Circuit effectively supplants the jurisdiction of active judges over those matters. The invalidity of this process is not mitigated by the fact that not every complex civil litigation matter is assigned to the senior judges’ docket. A substantial percentage are, with consequent impact on the rights of the parties involved. There is no corresponding, emergency, such as a violation of the speedy trial rules, to justify consistent reassignment of these cases. Indeed, the only justification offered is the mantra of judicial efficiency, which, however noble, cannot create its own constitutional foundation that so clearly violates constitutional strictures.

In determining that no special division has been created in the Seventeenth Judicial Circuit, the majority, in my opinion, glosses over the practical de facto effect of the process in operation there. By giving notice that the trial of a case will likely exceed two-and-a-half weeks, attorneys can almost ensure placement on the docket slated for hearing by a senior judge. The process effectively allocates cases to a distinct group of judges — not by subject matter — but by the complexity of the case and projected length of trial. Cf. Mann v. Chief Judge of the Thirteenth Judicial Circuit, 696 So.2d 1184, 1185 (Fla.1997). Thus, a distinct de facto “complex case” division has been created in the Seventeenth Judicial Circuit without issuance of a local rule in accordance with proper procedure.

In Broward County, senior judges have become a de facto permanent circuit division for the trial of complex civil cases not by the method authorized by the Florida Constitution, but by judicial direction. While I understand the demands placed upon those responsible for the administration of the local system and the current status of resources, a de facto system such as this exists beyond constitutional parameters, and I must respectfully dissent from the majority opinion as outlined herein.

      . In our recent review of the Report and Recommendations of the Committee On Appointment and Assignment of Senior Judges, "we acknowledge^] the reality of problems in isolated cases with senior judges presiding over complex and lengthy trials” and urged chief judges "to respond directly to concerns expressed when such problems are presented to them.” In re Report & Recommendations of the Comm. on Appointment & Assignment of Senior Judges, op. at 15, 847 So.2d 415, 422, 2003 WL 1987980 (Fla. May 1, 2003). Despite such problems, we declined to adopt "either a per se prohibition on the assignment of senior judges to complex cases or a requirement that chief judges be required to show a good cause for such assignments,” recognizing that "[c]hief judges must be afforded deference and latitude in the management of judicial assignments and dockets.” Id. at 15-16, at 422. Finally, we reminded the chief judges of their duty to "select senior judges with the proper skills and experience to preside over complex cases when such assignments are necessary” and their responsibility to "periodically review! ] the progress of all cases assigned to senior judges to ensure expeditious and proper handling." Id. at 16, at 422.

      . The Kahn petition makes two challenges that were not raised below: the time standards for civil litigation are violated by the use of senior judges and the intent of the Medical Malpractice Reform Act is similarly violated. This Court should not address issues relating to judicial assignments that have not been raised to the trial court. See Wild. Accordingly, we decline to address these challenges.

      . Article V, section 7 of the Florida Constitution provides that "[a]ll courts except the supreme court may sit in divisions as may be established by general law.” Section 43.30, Florida Statutes (2001), provides that divisions may be created by a local rule which is approved by this Court. Thus, a special division may not be created by means of the temporary appointment power of the chief justice which is delegated to the chief judges of the circuit courts.

      . At the time of our decision in Spector, appellate judges and Supreme Court justices were subject to election by the voters. In November 1976, Florida voters approved an amendment whereby appellate judges and justices are subject to merit selection and retention. See art. V, § 10(a), Fla. Const.

      . While the problem presented here may be unique to the Seventeenth Judicial Circuit, that fact, standing alone, does not relieve this Court of its responsibility to ensure that the circuit adhere to constitutional constructs governing judicial assignments.


author: PER CURIAM.

text:
    James GANDY, Jr., Petitioner, v. STATE of Florida, Respondent. Kimberly D. Goodwin, Petitioner, v. State of Florida, Respondent. Edward Dane Jeffus, Petitioner, v. State of Florida, Respondent.
    Nos. SC02-2049, SC02-2214, SC02-2221.
    Supreme Court of Florida.
    May 15, 2003.

      James Gandy, Jr., pro se, Avon Park, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, Tampa, for Respondent.
    Kimberly D. Goodwin, pro se, Pensacola, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Respondent.
    Edward Dan Jeffus, pro se, Talladega, Alabama, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kellie A. Nielan and Anthony J. Golden, Assistant Attorneys General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioners James Gandy, Kimberly D. Goodwin, and Edward Dane Jeffus have filed notices to invoke our discretionary jurisdiction, pursuant to article V, section 3(b)(3) of the Florida Constitution, seeking review of decisions of the Second, First, and Fifth District Courts of Appeal, respectively. We consolidate these cases for purposes of this opinion and, for the reasons expressed below, dismiss these cases for lack of jurisdiction.

FACTS

The order from the Second District in Gandy’s case reads in its entirety: “Petitioner’s petition for writ of habeas corpus is treated as a petition alleging ineffective assistance of appellate counsel and is denied. See § 921.002(g), Fla. Stat. (Supp. 1998).” Gandy v. State, 827 So.2d 989 (Fla. 2d DCA July 17, 2002); see also Gandy v. State, 827 So.2d 989 (Fla. 2d DCA 2002) (table report). Gandy asserts in his notice to invoke that the Second District’s decision in his case expressly and directly conflicts with a decision of another district court of appeal on the same question of law.

The decision from the First District in Goodwin’s case reads in its entirety: “PER CURIAM. DENIED. See Fla. R.App. P. 9.141(c)(4)(B).” Goodwin v. State, 825 So.2d 476 (Fla. 1st DCA 2002). Goodwin asserts in her notice to invoke that the First District’s decision in her case expressly declares valid a state statute. Goodwin asserts in her notice that the “state statute” declared valid in the First District’s decision in her case is the rule of appellate procedure cited in the opinion.

The decision from the Fifth District in Jeffus’s case reads in its entirety:

ORDERED that the Petition Alleging Ineffective Assistance of Appellate Counsel, filed May 6, 2002, is denied. See Fla. R.App. P. 9.140(j)(3)(B); Waives v. State, 771 So.2d 1209 (Fla. 5th DCA 2000). Upon consideration hereof, it is
ORDERED that Petitioner’s MOTION FOR ENLARGEMENT OF TIME, filed May 30, 2002, is moot.

Jeffus v. State, No. 5D02-1323 (Fla. 5th DCA June 5, 2002). Jeffus asserts in his notice to invoke that the decision from the Fifth District in his case expressly and directly conflicts with several decisions of both this Court and other district courts of appeal. The parties in Wattles v. State, 771 So.2d 1209 (Fla. 5th DCA 2000), cited by the Fifth District in Jeffus, never sought discretionary review of that decision in this Court.

ANALYSIS

“The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution.” Mystan Marine, Inc. v. Harrington, 339 So.2d 200, 201 (Fla.1976). As we recently explained in Persaud v. State, 838 So.2d 529, 531-32 (Fla.2003), our decisions in Dodi Publishing Co. v. Editorial America, S.A, 385 So.2d 1369 (Fla.1980), and Jollie v. State, 405 So.2d 418 (Fla.1981), “when read together, stand for the proposition that this Court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this Court.” We further explained that, while the holding in Dodi Publishing expressly applied only to per curiam decisions from the district courts citing to cases not pending on review in this Court, we had historically applied the decision in Dodi Publishing to district court decisions merely citing to a statute, a rule, or a decision of the United States Supreme Court or this Court. See id. at 532. We noted that this application of Dodi Publishing was entirely consistent with “the parameters of this Court’s limited discretionary review jurisdiction” as discussed in Florida Star v. B.J.F., 530 So.2d 286 (Fla.1988). Persaud, 838 So.2d at 532.

This Court in Florida Star, in express recognition of its decision in Jollie, and in implicit recognition of its decision in Dodi Publishing, cautioned that we do not “have subject-matter jurisdiction over a district court opinion that fails to expressly address a question of law, such as [decisions] issued without opinion or citation.” 530 So.2d at 288 n. 3. This Court explained that, for this Court to have subject-matter jurisdiction over a district court decision containing only a citation to other authority, the citation would have to be to a case that was “pending before this Court, or has been reversed on appeal or review, or receded from by this Court, or ... the citation [would have to] explicitly note[ ] a contrary holding of another district court or of this Court.” Id. (citing Jollie).

In other words, absent a citation falling into one of the limited categories identified in Jollie and reaffirmed in Florida Star, a district court decision must contain “some statement,” indicating that it has “expressly addresse[d] a question of law within the four corners of the opinion itself,” which could “hypothetically ... create conflict if there were another opinion reaching a contrary result,” for this Court to have subject-matter jurisdiction to review the case pursuant to article V, section 3(b)(3) of the Florida Constitution. Id. at 288; see also Beaty v. State, 701 So.2d 856, 857 (Fla.1997) (reaffirming, in light of this Court’s decision in Florida Star, that this Court does not have subject-matter jurisdiction over district court per curiam decisions issued without opinion). “[I]n those cases where the district court has not explicitly identified a conflicting decision, it is necessary for the district court to have included some facts in its decision so that the question of law addressed by the district court in its decision can be discerned by the Court.” Persaud, 838 So.2d at 532 (emphasis added) (citing Reaves v. State, 485 So.2d 829, 830 (Fla.1986), and Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981)).

In Stallworth v. Moore, 827 So.2d 974 (Fla.2002), this Court discussed our jurisdictional jurisprudence relative to per cu-riam affirmances without written opinion (PCAs), and held that “this Court does not have discretionary review jurisdiction or extraordinary writ jurisdiction to review per curiam denials of relief, issued without opinion or explanation, whether they be in opinion form or by way of unpublished order.” Id. at 978. While the district court decisions at issue in Stallworth were mere denials of relief without any elaboration beyond the word “denied,” this Court’s reasoning and holding in Stall-worth, when applied in a manner consistent with our decisions in Dodi Publishing, Jollie, and. Florida Star, dictate a similar result here. We therefore hold that we do not have jurisdiction to review per curiam unelaborated denials of relief from the district courts of appeal that, like the decisions in Gandy’s, Goodwin’s, and Jeffus’s cases, merely cite to a case not pending on review in this Court, or to a statute or rule of procedure, and do not contain any discussion of the facts in the case such that it could be said that the district court “expressly addresse[d] a question of law within the four corners of the opinion itself.” Florida Star, 530 So.2d at 288. Therefore, we also take this opportunity to explain that in the future we will apply the reasoning in Stallworth, through the lens of Dodi Publishing, Jollie, and Florida Star to these and similar cases.

Accordingly, we hereby dismiss the review proceedings in these cases. No motions for rehearing or clarification will be entertained in these cases or in cases which are dismissed in the future based on the reasoning set forth in this opinion. See Fla. R.App. P. 9.330(d).

It is so ordered.

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

      . We note that it is already this Court's practice to dismiss cases in which review is sought from an unelaborated per curiam denial of relief, like the ones at issue in the subject cases, which merely cites to a case not pending on review in this Court, or to a statute or rule of procedure. See, e.g., Frierson v. State, 810 So.2d 988 (Fla. 1st DCA) (denying relief per curiam with only a citation to Florida Rule of Appellate Procedure 9.141(c)(4)(B)), review dismissed, 817 So.2d 846 (Fla.2002); Galloway v. Moore, 790 So.2d 1193 (Fla. 1st DCA) (denying relief per curiam with only a citation to State v. Hudson, 698 So.2d 831 (Fla.1997)), review dismissed, 794 So.2d 604 (Fla.2001); Barro v. Florida Parole Comm'n, 786 So.2d 1235 (Fla. 1st DCA) (denying relief per curiam with only citations to Gaines v. Florida Parole Comm'n, 743 So.2d 118 (Fla. 4th DCA 1999), and Gattis v. Florida Parole Comm’n, 535 So.2d 640 (Fla. 1st DCA 1988)), review dismissed, 791 So.2d 1094 (Fla.2001). Although the orders dismissing review in these cases were unpublished, the records of this Court indicate that each of the orders stated as grounds for the dismissal that this Court lacked jurisdiction to review the district court decision at issue. This opinion is written merely to clarify, for the benefit of the public and the Bar, this Court’s conclusion that it does not have jurisdiction in such cases.


author: PER CURIAM. CANTERO, J.,

text:
    STATE of Florida, Petitioner, v. Tony A. CARWISE, Respondent.
    No. SC02-1670.
    Supreme Court of Florida.
    May 15, 2003.
    Charles J. Crist, Jr., Attorney General, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, FL, for Petitioner.
    James B. Gibson, Public Defender, and Leonard R. Ross and George D.E. Burden, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent. •
   PER CURIAM.

We originally accepted jurisdiction to review Carwise v. State, 821 So.2d 308 (Fla. 5th DCA 2002), pursuant to article V, section 3(b)(4), of the Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted.

Accordingly, this case is hereby dismissed.

It is so ordered.

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

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

CANTERO, J.,

dissenting.

I dissent to the discharge of jurisdiction because I feel this case presents a question of great public importance that we should resolve.

Tony Carwise confessed to the crime of conspiracy to commit armed robbery. Before the court admitted the confession into evidence,

the State presented evidence Carwise and Turner were hiding in a car parked in a hotel parking lot, (not a marked parking place) along a wall, in an effort to hide the car as well. It was December and 7 a.m. in the morning (dark). One police officer approached the vehicle on foot to see its VIN number, since the temporary tag was worn and hard to read. He saw Carwise peek up from the front seat, and then open the door to discard a handgun under the car. He also saw Turner lying down in the back seat holding a jacket. A search of the car revealed Turner had been hiding a loaded handgun and ski mask under the jacket, and that Carwise had a piece of fabric with a hole in it, like a mask, in his pocket.

Carwise v. State, 821 So.2d 308, 310 (Fla. 5th DCA 2002) (Sharp, W., J., dissenting).

After being found guilty of conspiracy to commit armed robbery, Carwise moved for a judgment of acquittal, arguing that the State faded to present sufficient evidence to establish the corpus delicti of the crime. The corpus delicti doctrine requires that before a confession can be introduced into evidence, the State must show: (1) that the injury or harm constituting the crime occurred; and (2) that the injury or harm was occasioned by criminal conduct. State v. Allen, 335 So.2d 823, 825 (Fla.1976). The trial court denied Carwise’s motion, but the Fifth District reversed, holding that the State failed to present substantial corroborating evidence that Carwise and his co-conspirator agreed to commit armed robbery. Carwise, 821 So.2d at 308. In a dissenting opinion, Judge Sharp argued that the State’s evidence was sufficient because “two individuals do not hide out in a car in a hotel parking lot, with loaded handguns and masks, in the dark, without a common plan.” Id. at 310 (Sharp, W., J., dissenting). Judge Sharp also noted that “handguns and masks [are] common tools of the trade for armed robberies.” Id.

On rehearing, the Fifth District certified the following question of great public importance:

Should Florida replace the corpus delicti rule with the trustworthiness approach promulgated by the United States Supreme Court in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954)?

Id. at 311.

Although we apparently answered this question in Burks v. State, 613 So.2d 441 (Fla.1993), this Court has not specifically addressed whether the doctrine, or some form of it, should apply to inchoate crimes such as conspiracy. Unlike other states, Florida still requires that the State, in proving the first element of the doctrine (that the injury or harm constituting the crime occurred), “show the existence of each element of the crime.” Burks, 613 So.2d at 443. Under the facts of this case, the State must show that Carwise agreed to commit armed robbery and that he or one of his co-conspirators engaged in an overt act in furtherance of the agreement. In this context at least, the State should not have to prove every element of the crime. The purpose of the rule is to prevent a person from “be[ing] convicted out of derangement, mistake or official fabrication.” Burks, 613 So.2d at 443 (quoting Allen, 335 So.2d at 825). This purpose can be served — as it is in other states — by requiring proof that the injury or harm constituting the crime occurred, without further requiring independent proof of every element of the crime. See McCormick on Evidence, § 146 (John W. Strong gen. ed. 1999) (“A growing number of courts ... are abandoning the strict requirement that the corroborating evidence tend to prove all elements of the corpus delicti”). Such an application of the doctrine is especially important for inchoate crimes because these crimes do not have a tangible corpus delicti. See Carwise, 821 So.2d at 309 (Harris, J., concurring specially). Therefore, this Court should decide the case on the merits and apply the seventeenth century corpus delicti rule in a way that remains relevant to twenty-first century crimes.

WELLS and BELL, JJ., concur.


author: CASANUEVA, Judge.

text:
    Thomas James SIRMONS, Petitioner, v. Jerry REGIER, Secretary, Department of Children and Family Services, Respondent.
    No. 2D02-4856.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    Rehearing Denied April 10, and May 30, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Jennifer R. Haymes, Assistant Attorney General, Tampa, for Petitioner.
    Robert R. Jacobs II, Public Defender, and Richard R. Donnelly, Assistant Public Defender, Cape Coral, for Respondent.
   CASANUEVA, Judge.

Thomas Sirmons petitions this court for a writ of certiorari or, in the alternative, a writ of prohibition. We treat the petition as one for a writ of prohibition. See Gordon v. Regier, 889 So.2d 715 (Fla. 2d DCA 2003).

In his petition, Mr. Sirmons requests that this court issue a writ of prohibition directing the trial court to enter an order dismissing the State’s petition for involuntary civil commitment filed pursuant to the Jimmy Ryce Involuntary Civil Commitment of Sexually Violent Predators’ Treatment and Care Act (the Act), sections 394.910-.931, Florida Statutes (2001). In his petition, Mr. Sirmons claims that the trial court does not have jurisdiction to proceed with his civil commitment since he was not in custody as defined by the Act when the trial court issued its order of detention. Because Mr. Sirmons was in custody at the time the State filed the petition for involuntary civil commitment, we hold that the trial court does have jurisdiction to proceed, and we deny this portion of the petition with prejudice.

The facts of the case are as follows. On May 24, 2001, the Department of Corrections (DOC), pursuant to section 394.913(1), gave written notice to the multidisciplinary team of the Department of Children and Family Services (DCF) that Mr. Sirmons had been convicted of a sexually violent offense and was due to be released on June 12, 2001. On June 11, 2001, the multidisciplinary team gave written notice pursuant to section 394.913(3)(e) that Mr. Sirmons met the definition of a sexually violent predator and reeom-mended that the state attorney file a petition for his involuntary civil commitment. On June 12 at 4:12 p.m., the office of the state attorney filed a petition for involuntary civil commitment in the circuit court. Sometime after 6 p.m. on June 12, Mr. Sirmons was released from the custody of the DOC. On June 13, the circuit court, pursuant to section 394.915(1), issued an order finding probable cause that Mr. Sir-mons was a sexually violent predator and issued a warrant directing that he be held in the custody of the DCF for further proceedings. On June 14, Mr. Sirmons was picked up on the warrant and transferred to DCF custody.

In December 2001, Mr. Sirmons filed a motion to dismiss the petition for involuntary civil commitment on the ground that the trial court had no jurisdiction over him because he was released from DOC custody prior to the filing of the petition. In actuality, Mr. Sirmons was still in custody at the time of the filing of the petition. However, Mr. Sirmons also asserted in his motion to dismiss that the Act may not be applied to those who have been released from DOC custody upon the lawful expiration of their sentence. Mr. Sirmons amplified this argument in the hearing on the motion to dismiss.

In Gordon, we held that “[tjhere is no provision in the Act for commencing proceedings against a person under the Act where he or she is not in custody and is, in fact, living in society.” 839 So.2d at 719. In the present case, the commitment proceedings against Mr. Sirmons were clearly commenced while he was still in custody since the petition was filed prior to his release from prison. We further stated in Gordon that “the Act is not applicable to a person who has been released into society but thereafter has been recaptured.” Id. This sentence must be read in the context of that case’s facts. Once a person has been released from custody upon expiration of his sentence, he is no longer subject to the Act, and the DCF cannot then commence commitment proceedings against him and have him pulled off the street as was the case in Gordon. In the present case, Mr. Sirmons, due to an administrative error, was released from prison after the filing of the petition. Otherwise, he would have been immediately subject to the procedure outlined in section 394.9135. The purpose of the Act is to protect society from “repeat acts of predatory sexual violence” and to provide “long-term care and treatment of sexually violent predators.” § 394.910. Bearing this in mind, we hold that the fact that a person is released from custody upon the expiration of his sentence — but after commitment proceedings have been commenced — does not deprive the state attorney, the DCF, or the trial court of jurisdiction to proceed against him under the Act. We therefore deny the petition.

Petition for writ of prohibition denied.

NORTHCUTT and SALCINES, JJ., Concur.

      . Mr. Sirmons also raised a claim regarding the constitutionality of the trial court’s probable cause determination. Because this issue was not raised below, we deny this claim without prejudice to Mr. Sirmons’ raising it in the trial court.

      . The Act states that written notice must be given to the multidisciplinary team and the state attorney at least 365 days prior to the person’s release. § 394.913(1). However, this provision is not jurisdictional. § 394.913(3)(e).

      .For purposes of the Act, Gordon v. Regier, 839 So.2d 715, 719 (Fla. 2d DCA 2003), determined "that the word 'custody' is synonymous with 'total confinement’ and means that the person in question is being held at a secure facility.”