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

text:
    Joel Dale WRIGHT, Appellant, v. STATE of Florida, Appellee. Joel Dale Wright, Petitioner, v. James V. Crosby, Jr., etc., et al., Respondents.
    Nos. SC00-1389, SC01-2866.
    Supreme Court of Florida.
    July 3, 2003.
    Rehearing Denied Oct. 10, 2003.

      Martin J. McClain, Special Assistant CCRC-South, Brooklyn, NY, and Neal Andre Dupree, CCRC-South, Office of the Capital Collateral Regional Counsel for the Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Judy Taylor Rush and Douglas T. Squire, Assistant Attorneys General, Day-tona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Joel Dale Wright (Wright) appeals an order entered by the trial court denying his second motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. For the reasons discussed below, we affirm the trial court’s denial of post-conviction relief, and we deny Wright’s petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL HISTORY

The facts at trial have been thoroughly presented by Justice Blackmun in his dissent from the United States Supreme Court’s denial of certiorari. The facts are:

On February 6, 1983, a woman was found murdered in the bedroom of her home. She apparently had died the previous night after being raped and stabbed. All the doors to her home were locked, but a back window was found open. Several weeks later, Charles Westberry told his wife that petitioner Joel Wright had come to Westberry’s trailer shortly after daylight on the morning of February 6 and had confessed to killing the victim. Wright lived with his parents near the victim’s home. Westberry’s wife notified the police, and Wright was arrested and tried for the crime. At trial, West-berry was the State’s principal witness. He testified that Wright had told him on the morning of February 6 that Wright had entered the victim’s house through the back window to steal money, that the victim had discovered him as he was wiping his fingerprints from her purse, and that he had killed her because he did not want to return to prison. According to Westberry, Wright counted out $290 he claimed to have taken from the victim’s home, and he asked West-berry to tell the authorities that Wright had spent the previous night at West-berry’s trailer. Another witness [Paul House] for the State testified that, approximately one month before the murder, he and Wright had stolen money from the victim’s home after entering through the window later found open on February 6. The jury also was told that a fingerprint identified as Wright’s had been found on a portable stove in the victim’s bedroom.
Wright took the stand and denied involvement in the murder. He testified that he had returned home from a party at approximately 1 a.m. on February 6, but had found himself locked out. He claimed that he then had walked along Highway 19 to Westberry’s trailer, where he had spent the night. He also presented a witness who testified that, late on the night of February 5 and early in the morning of February 6, he had seen a group of three men, whom he had not recognized, in the general vicinity of the victim’s home.
After the close of evidence but prior to final arguments, the defense moved to re-open the case in order to introduce the testimony of a newly discovered witness, Kathy Waters. Waters apparently had read newspaper accounts of the trial, had listened to parts of the testimony, and had discussed the trial with friends in attendance. She offered to testify that, shortly after midnight on February 6, she had seen a person who could have been Wright walking along Highway 19, and had also observed three persons she did not recognize near the victim’s home. Waters claimed that she had not realized she possessed relevant information until the morning her testimony was proffered, and that she had come forward of her own volition. The trial judge denied Wright’s motion, noting that Florida’s sequestration rule would be rendered “meaningless” if, after discussing the case with others, a witness were permitted “to testify in support of one side or the other, almost as if that testimony were tailor-made.” [Wright v. State,] 473 So.2d 1277, 1279 ([Fla.] 1985). Although the State acknowledged that the violation of the sequestration rule had been inadvertent, it argued that the prosecution “could very well be substantially prejudiced” if Waters were permitted to testify. Id., at 1280. Wright was convicted and sentenced to die.
On appeal, the Supreme Court of Florida held that the trial judge’s rigid application of the State’s sequestration rule was inconsistent with Wright’s Sixth Amendment right to present witnesses in his behalf. The court affirmed the conviction, however, because it deemed the error harmless.

Wright v. Florida, 474 U.S. 1094, 1094-95, 106 S.Ct. 870, 88 L.Ed.2d 909 (1986) (Blackmun, J., joined by Brennan, J., and Marshall, J., dissenting). Procedurally, the case progressed as follows:

Joel Dale Wright was charged with killing a seventy-five-year-old Palatka school teacher. On September 1, 1983, he was convicted of first-degree murder, sexual battery, burglary of a dwelling, and grand theft. The jury returned an advisory sentence of death and the trial court, in accordance with that recommendation, imposed the death sentence. This Court affirmed the convictions and the sentence of death in Wright v. State, 473 So.2d 1277 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 909 (1986).

Wright v. State, 581 So.2d 882, 882 (Fla.1991). In February 1988 Wright filed his first motion for postconviction relief, and the trial court granted an evidentiary hearing. The trial court issued a detailed order denying relief. After the trial court denied relief, but while the case was still pending on a motion for rehearing, Wright filed a supplement to his 3.850 motion alleging that his public defender’s status as a special deputy sheriff created a conflict of interest. The trial court considered the substance of Wright’s supplemental claim, finding the claim identical to a claim made by a different defendant in the Seventh Judicial Circuit, which had been denied. The trial court ordered Wright to furnish any evidence that had not been considered in the Seventh Circuit case. When Wright failed to respond, the trial judge adopted the Seventh Circuit court’s findings and entered an order denying relief.

Wright appealed. We affirmed the trial court’s denial of relief on most of the claims, but remanded the case for an evi-dentiary hearing on the claim of conflict of interest due to his public defender’s service as a special deputy. See Wright, 581 So.2d at 886 (citing Herring v. State, 580 So.2d 135 (Fla.1991)). We explained:

While it may seem to be a total duplication of effort, it is clear that the trial judge in this case cannot adopt the factual findings of a trial judge in a different case involving a different defendant, even though those findings concern the same issue.

Wright, 581 So.2d at 886. We granted Wright permission to consolidate his claim with the claims of other defendants who also argued that Assistant Public Defender Howard Pearl’s status as a special deputy sheriff affected his ability to provide effective legal assistance. These claims were dubbed the “Pearl” claim, and heard in December 1992 by Judge B.J. Driver.

Prior to the December 1992 hearing, Wright again amended his postconviction motion based on documents provided by the Putnam County Sheriffs Department after a public records request under chapter 119, Florida Statutes. Judge Driver severed Wright’s new claims from the Pearl claim because Judge Driver was appointed to hear only the Pearl claim, and these new claims were outside the scope of his appointment. Judge Driver denied relief on the Pearl claim, finding that Assistant Public Defender Howard Pearl’s status as a special deputy sheriff did not affect his ability to provide effective legal assistance. During the postconviction hearing on the Pearl claim, Judge Robert Perry, who presided over Wright’s trial, testified. Wright alleges he learned that Judge Perry also had special deputy appointments in Duval, Volusia, and Orange Counties, but Judge Perry testified that he did not recall whether he had a special deputy appointment in Putnam County, where Wright was tried.

After Judge Driver denied relief on the Pearl claim, Wright sought a hearing on the claims raised in the supplemental 3.850 motions which had been severed from the Pearl claim. The case was reassigned and an evidentiary hearing was held in March 1997, which was continued and completed in December 1997. In addition to the issues heard, the trial court reconsidered Wright’s Pearl claim based on this Court’s decision in Teffeteller v. Dugger, 676 So.2d 369 (Fla.1996), which held that the December 1992 consolidated hearing violated due process. Wright now appeals the trial court’s order denying relief on his second postconviction motion.

MOTION FOR POSTCONVICTION RELIEF

Wright’s theory at trial was that someone else committed the murder. In both his first and second postconviction motions, Wright asserted that the police failed to adequately investigate other leads which would have shown that someone else committed the murder. In this appeal of his second postconviction motion, Wright argues that (1) in the first postconviction proceeding in 1988, the trial court made false findings of certain facts and this Court erroneously adopted those false facts on appeal, the State failed to disclose exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and there was newly discovered evidence of innocence admissible under Jones v. State, 591 So.2d 911 (Fla.1991); (2) Wright’s appointed trial counsel, Howard Pearl, and Pearl’s investigator, Freddie Williams, were bonded deputy sheriffs, a status which interfered with their ability to provide effective assistance of counsel; (3) the trial judge, Robert Perry, failed to reveal at the time of trial and at the time he presided over Wright’s first postconviction proceeding that he was a special deputy sheriff, which would have warranted disqualification; (4) Judge Perry’s standard practice was to request the State to draft sentencing orders in capital cases which constitutes reversible error; and (5) Judge A.W. Nichols, III, who presided over Wright’s second posteonvietion proceeding, refused to timely rule on his motion for postconviction relief, the State delayed disclosure of exculpatory materials, and both acts amount to a denial of due process. We discuss each claim below.

Claim 1

Reconsideration of Prior Brady Claim; Brady Claim; Newly Discovered Evidence

Wright’s first claim in this appeal involves three separate issues: First, Wright argues that the trial court erred in denying his Brady claim in the first postconviction proceeding. Second, he argues that there exists new Brady material which entitles him to relief. Third, he argues that there is newly discovered evidence in support of his innocence. Wright also argues that this Court should consider the cumulative prejudicial effect of the Brady material from his first postconviction proceeding, the Brady material he presents here, and the newly discovered evidence. We will separately address each of the issues Wright raises under this first claim.

Issue 1. Reconsideration of Wright’s First Brady Claim.

Wright alleges that in his first postconviction proceeding the trial court erred in denying his Brady claim because the trial court made factual findings not in the record. He further argues that this Court erroneously affirmed that denial of postconviction relief on appeal. Wright seeks a reconsideration under Brady of three written statements made to police during the investigation of the murder. The statements were made by Wanda Brown, Kimberly Holt, and Charlene Luce. In his first postconviction hearing, Wright argued that defense counsel should have been given copies of the written statements. The trial court in that proceeding denied Wright’s Brady claim, finding that defense counsel knew of the Brown and Luce statements and had actually interviewed Holt during counsel’s own investigation. We affirmed that finding on appeal. See Wright v. State, 581 So.2d 882 (Fla.1991). Now, in his second postconviction motion, Wright argues that the first postconviction trial court, and this Court thereafter, misconstrued the facts in the record so that the Brady claim was erroneously denied.

However, Wright has failed to meet his burden to show the grounds for relief he alleges here were not known and could not have been known at the time of the earlier proceeding. See Foster v. State, 614 So.2d 455 (Fla.1992). His argument that the first postconviction trial court misinterpreted the facts in the record was raised and addressed in his appeal following that proceeding, and in a motion for rehearing as well. Absent a showing that Wright did not know, or could not have known, of the alleged misconstrued facts during the first postconviction proceeding, the trial court, in this proceeding properly denied relief. We will not entertain a second appeal of claims that were raised, or should have been raised, in a prior postconviction proceeding. See Downs v. State, 740 So.2d 506, 518 n. 10 (Fla.1999) (stating that claim raised in earlier post-conviction motion is barred in subsequent postconviction motion even if based on different facts); Atkins v. State, 663 So.2d 624, 626 (Fla.1995) (explaining that issues that were or could have been presented in a postconviction motion cannot be reliti-gated in a subsequent postconviction motion).

Wright also argues that the trial court erred in the first postconviction proceeding by accepting the fact that two potential suspects, Henry Jackson (Jackson) and Clayton Strickland (Strickland) were eliminated from police investigation after they were given polygraph examinations which they purportedly passed. In this second postconviction motion, Wright contends that the evidence the trial court relied upon in making its factual finding in the first postconviction proceeding, i.e., that Jackson and Strickland passed polygraph examinations, did not actually exist, a fact which Wright only realized when the State did not produce the polygraph examination results upon his public records requests made after the first postconviction motion. In order to avoid a procedural bar on this claim, Wright must allege new or different grounds for relief that were not known and could not have been known at the time of his earlier postconviction motion. See Christopher v. State, 489 So.2d 22, 24 (Fla.1986). Polygraph examination results for Jackson and Strickland were available for discovery at the time of trial and at the time of Wright’s first post-conviction proceeding.

Wright admits that he sought production of the polygraph results for the first time in 1997. At that time, Wright deposed Officer Derry Wayne Dedmon, who would have conducted the polygraph examinations in question. Officer Dedmon stated that in 1989 or 1990 he destroyed all of his polygraph records through 1984 by directive of the sheriff. The murder, police investigation, and trial in this case all occurred in 1983. Any polygraph examinations administered to suspects during the investigation of this case would have occurred in 1983 prior to Wright’s trial, and the results would still have been available in 1988 when Wright brought his first postconviction motion. Thus, Wright has failed to demonstrate why he did not raise the absence of polygraph examination results from the record in his first postconviction proceeding and has failed to demonstrate that the absence of these documents was not known and could not have been known to him at the time of the earlier proceeding. See Foster.

Wright’s claim that this Court should now reconsider certain factual issues that had been previously raised and resolved in the the first postconviction proceeding is not well taken. His arguments here are successive since they have been previously litigated on their merits, and he has failed to show why these additional facts could not have been known at the time of the first postconviction proceedings. See Downs; Atkins; Foster.

Issue 2. Brady Claim

After his first postconviction proceeding in 1988, Wright made public records requests from which he received numerous documents. The first set of documents produced in 1991 included police investigation reports regarding criminal activity in the neighborhood of the murder. Wright asserts that these reports demonstrate that the police did not adequately investigate other potential suspects, including Henry Jackson. A second set of documents was produced in 1996 and 1997. These documents, Wright argues, demonstrate failures and inadequacies of the police investigation and demonstrate that the investigating officer was dishonest. Wright also draws an inference from the lack of documents which, he argues, would exist if the police adequately considered other suspects. The documents Wright lists in his claim include Jackson’s criminal history, neighbors’ complaints to police about Jackson, and police reports involving other known criminals in the neighborhood which involve events completely unrelated to those in this case. All of this information, he alleges, is Brady evidence and entitles him to a new trial.

The United States Supreme Court announced in Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the three elements that a defendant must establish in order to successfully assert a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Accord Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000). The burden is on the defendant to demonstrate that the evidence he claims as Brady material satisfies each of these elements. Even where favorable evidence is suppressed, a new trial will not be necessary where it is determined that the favorable evidence did not result in prejudice. See Cardona v. State, 826 So.2d 968 (Fla.2002). The Court in Strickler explained that prejudice is measured by determining “whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

As noted above, the evidence Wright claims as Brady material consists of information contained in police files concerning other possible suspects and other criminal activity in the same neighborhood. This is the same type of evidence that this Court recently addressed in Carroll v. State, 815 So.2d 601 (Fla.2002). In Carroll, the defendant argued that the State withheld favorable evidence that consisted of police investigative notes that linked the defendant with another suspect, that another person was believed by the family to be involved, and that other crimes, including another rape, had occurred in the neighborhood. In denying relief on this issue, we said, “As noted by the State, the prosecution is not required to provide the defendant all information regarding its investigatory work on a particular case regardless of its relevancy or materiality.” Id. at 620. Likewise, investigators in this case were not required to provide all of the notes and information regarding their investigation. Thus, Wright has failed to demonstrate that the evidence should have been disclosed.

However, even if the State should have disclosed the evidence, Wright has not demonstrated prejudice by the failure to do so. In order to be entitled to relief on a Brady claim, the defendant must also show that the evidence “is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Gorham v. State, 521 So.2d 1067, 1069 (Fla.1988). There has been no such showing in the instant case. The mere possibility that undisclosed items of information may have been helpful to the defense in its own investigation does not establish constitutional materiality. See United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Gorham v. State, 521 So.2d 1067, 1069. The fact of other criminal activities and the existence of other criminals in the same neighborhood where this murder occurred does not affect the guilt or punishment of this defendant.

We agree with the trial court’s determination that the exculpatory effect of the documents is merely speculative; therefore, we affirm the trial court’s denial of relief on this issue.

Issue 3. Newly Discovered Evidence

Wright claims that evidence produced as the result of the public records requests made after the first postcon-viction motion constitutes newly discovered evidence of innocence and requires a new trial. In order to qualify as newly discovered evidence, the evidence “must have been 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 them by the use of diligence.” Jones v. State, 591 So.2d 911, 916 (Fla.1991) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). If this test is met, the court must next consider whether the newly discovered evidence is of such a nature as to probably produce an acquittal on retrial. Id. at 915. Additionally, we have said that newly discovered evidence, by its very nature, is evidence that existed but was unknown at the time of the prior proceedings. See Porter v. State, 653 So.2d 374, 380 (Fla.1995).

In this case, none of the evidence Wright claims as newly discovered since the first postconviction proceeding existed at the time of trial. For example, Wright presents a memorandum from 1986 criticizing the veracity of Officer Perkins, the investigator in this case. He presents a police report filed by an elderly resident of the neighborhood where the murder occurred that implies Henry Jackson hit the resident on her head and stole her money. He also presents police reports involving a witness against Wright who was a suspect in a different homicide. None of these documents existed at the time of Wright’s trial in 1983, so they are not “newly discovered” evidence.

The trial court did not err in denying relief on this newly discovered evidence claim.

Issue 4. Cumulative Effect of Evidence

Finally, Wright argues we must consider, in determining whether he is entitled to a new trial, the cumulative effect of the evidence presented at trial, along with any Brady evidence, newly discovered evidence, and evidence that would have been presented at trial but for ineffective assistance of counsel. See State v. Gunsby, 670 So.2d 920, 921 (Fla.1996). We have considered and addressed Wright’s Brady claim and claim of newly discovered evidence, and found them to be without merit. As discussed above, Wright may not relitigate the merits of his first post-conviction claims. Having found that each claim presented in this proceeding lacks merit, we find no cumulative error. See Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999) (finding that claim of cumulative error was without merit where the court considered each individual claim and found them to be without merit).

Claim 2

Counsel’s Alleged Conflict of Interest

Wright argues that a conflict of interest existed because his defense counsel, Howard Pearl, held the status of a special deputy sheriff while defending Wright. Wright contends that he was denied effective representation. The trial court addressed this claim, finding that Pearl’s status as a special deputy did not in any way affect his vigorous defense and posed no conflict of interest. On appeal of a denial of a claim of ineffective assistance of counsel where an evidentiary hearing was held, we afford deference to the trial court’s findings of fact based on competent, substantial evidence, and we independently review deficiency and prejudice as mixed questions of law and fact. See Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999).

As we stated in Hunter v. State, 817 So.2d 786, 792 (Fla.2002), a conflict of interest claim emanates from the Sixth Amendment guarantees of effective assistance of counsel. For claims of ineffective assistance of counsel based on a conflict of interest, the defendant must demonstrate that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Id.

At the evidentiary hearing, Pearl was examined and cross-examined for several hours. The trial court found that Pearl’s status as a special deputy did not in any way affect his vigorous defense and posed no conflict of interest. In support, the trial court relied on the following: Pearl was characterized as a special deputy from 1970 through 1989 in Volusia and Marion Counties, and the only benefit he received from this status was his ability to carry a firearm. Pearl had no authority to act as a deputy, received no income, maintained no certification, had no training as a deputy, was issued no equipment, responded to no roll calls, was not included on any duty rosters, never held himself out as a law enforcement officer, never used his special deputy status to obtain information and never received any information due to this status. When Pearl could legally obtain a concealed weapons permit, he did so and thereafter resigned his status as a special deputy. Additionally, there was no evidence presented that Pearl enjoyed this same special deputy status in Putnam County, the site of Wright’s trial. The trial judge concluded from these facts, which are supported in the record, that Pearl’s status did not pose a conflict of interest.

We agree with the trial court’s conclusion. Indeed, it appears that Pearl’s status as a special deputy was an honorary one, carrying with it no duties or obligations to the sheriffs office. Furthermore, we have examined Pearl’s status as a special deputy in similar circumstances and held that neither a per se nor actual conflict of interest existed. See Teffeteller v. Dugger, 734 So.2d 1009 (Fla.1999); Quince v. State, 732 So.2d 1059 (Fla.1999); Harich v. State, 573 So.2d 303 (Fla.1990).

Wright also asserts that Pearl’s alleged conflict of interest caused him to render ineffective assistance of counsel. However, Wright has failed to demonstrate ineffective assistance because he has failed to demonstrate a conflict. Moreover, Pearl testified that his loyalty was to his clients and he denied that his efforts, actions, and representations on behalf of Wright were affected by his status as a special deputy. The trial court correctly denied relief on this issue.

Claim 3

Judge Robert Perry’s Alleged Conñict of Interest

Wright next claims he was denied due process because the trial judge, Judge Perry, now deceased, was also a special deputy sheriff at the time of trial and, as such, was biased. On this issue, the trial court found:

There was testimony that the trial [judge] may have been issued a card of some sort by the Putnam County Sheriff. However, there was no proof submitted that his name appeared on a list kept by the Sheriffs Office. Additionally, if one had been issued, it carried with it no privileges and meant nothing. There is not even a suggestion in the record that the trial judge ever used any such card in any manner, even if he had one. There is also nothing to even suggest that having any such card affected his rulings or conduct in any manner. As to the trial judge’s disciplinary problems, there is absolutely nothing to show his work or his status had any bearing on the 3.850 hearing and his ruling herein.

Wright argues that Judge Perry’s status, in and of itself, indicates that Wright was denied a fair and impartial judge during his trial. However, Wright presents no evidence that Judge Perry was not fair and impartial.

Wright also asserts that- Judge Perry’s status, in and of itself, would warrant disqualification. He argues that had he known of this information at the time of trial, he could have successfully moved to disqualify Judge Perry. A motion to disqualify a judge “must be well-founded and contain facts germane to the judge’s undue bias, prejudice, or sympathy.” Jackson v. State, 599 So.2d 103, 107 (Fla.1992). Wright fails to show that Judge Perry’s mere possession of a special deputy card resulted in partiality and bias and would have required the granting of a motion to disqualify.

This record does not demonstrate that Judge Perry labored under a conflict of interest.

Claim 4

Sentencing Order Preparation

Wright argues that Judge Perry’s “standard practice” was to have the State draft his trial orders. There is no evidence in this case to support such a claim. The facts upon which Wright relies for this allegation come from deposition testimony that was filed in another case in which Wright was not involved. Just as a judge “cannot adopt the factual findings of a trial judge in a different case involving a different defendant,” Wright, 581 So.2d at 886, Wright cannot cite facts in another case to support his claim here. See, e.g., Maharaj v. State, 778 So.2d 944, 951 (Fla.2000) (stating that postconviction relief cannot be based on actions in another case or on speculation). This claim is therefore denied.

Claim S

Due Process Claim Under Jones v. State

Wright claims he was denied due process because the trial court failed to timely rule on his motion to depose Judge Perry. In support, Wright cites this Court’s decision in Jones v. State, 740 So.2d 520 (Fla.1999), in which we concluded that the trial court’s twelve-year delay in conducting a hearing on competency to stand trial despite being ordered to do so by this Court required us to vacate the defendant’s judgment and sentence. However, Wright makes no analysis or legal argument based on the facts in his case. The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden. See Atwater v. State, 788 So.2d 223 (Fla.2001); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989) (“A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective .... ”). Wright has failed to demonstrate a due process violation.

Claim 6

Failure to Conduct Harmless Error Analysis

Wright’s final 3.850 claim is also brief and lacks development and legal analysis. Wright argues that on his direct appeal this Court struck an aggravating factor and then failed to conduct any harmless error analysis as required by Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). Rule 3.850 permits a criminal defendant to raise claims involving the trial court’s judgment or sentence. See Fla. R.Crim. P. 3.850. This issue does not relate to the judgment or sentence, but rather, relates to this Court’s opinion on direct appeal. This claim is inappropriate for 3.850 proceedings. As we stated in Hardwick v. Dugger, 648 So.2d 100, 103 (Fla.1995), “the trial court has no authority to review the actions of this Court.” Thus, the trial court properly denied this claim.

PETITION FOR WRIT OF HABEAS CORPUS

Wright also petitions this Court for a writ of habeas corpus. For the reasons discussed below, we deny this petition.

The purpose of a writ of habe-as corpus is to inquire into the legality of a prisoner’s present detention. See McCrae v. Wainwright, 439 So.2d 868 (Fla.1983). Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postconviction proceedings. Id. The ha-beas process is therefore most often used in death penalty cases to challenge the effectiveness of appellate counsel. See Patterson v. State, 664 So.2d 31, 31 (Fla. 4th DCA 1995) (citing a number of cases to illustrate the issues most often raised in habeas proceedings: ineffective assistance of appellate counsel, the denial of reasonable bail, and the legality of detention in extradition proceedings).

Wright raises four issues in his petition for writ of habeas corpus. Wright claims that (1) the State failed to disclose pertinent facts necessary for this Court’s consideration; (2) appellate counsel failed to raise numerous meritorious issues on appeal; (3) the presiding judge unconstitutionally made factual findings in support of Wright’s death sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (4) this Court failed to make an appropriate harmless error analysis after striking an aggravating circumstance on direct appeal, in violation of Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). We deny relief on each issue.

Issue 1

Failure to Disclose Pertinent Facts

Wright first argues that the State intentionally deceived this Court regarding issues he raised in his direct appeal. In his direct appeal, Wright challenged numerous rulings made by the judge at trial. Wright now asserts that the State was in possession of, but did not divulge, pertinent information that would have favorably resolved his challenges on appeal. This is a claim that was or could have been presented in Wright’s direct appeal or his 3.850 proceedings. Issues which were or could have been presented in prior proceedings cannot be reconsidered in a petition for writ of habeas corpus. See Mann v. Moore, 794 So.2d 595, 600-01 (Fla.2001). This procedural bar also acts to prohibit variant claims previously decided. See Jones v. Moore, 794 So.2d 579, 586 (Fla.2001) (finding procedural bar to habeas claim which was variant to claim previously addressed). This claim is therefore procedurally barred.

In a footnote to this claim, Wright also asserts that appellate counsel failed to address the State’s misrepresentation in his reply brief, and thus rendered ineffective assistance of appellate counsel. While claims of ineffective assistance of appellate counsel are appropriate considerations in habeas corpus petitions, see Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000), Wright does not develop this issue beyond the bare assertion. In order to prevail on this issue, Wright would have to show that “[appellate] counsel’s performance fell below an objective standard of reasonableness and, but for counsel’s unprofessional errors, there is a reasonable probability that the result of the proceedings would have been different.” Scott v. Dugger, 604 So.2d 465, 469 (Fla.1992). The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Wright’s conclusory allegation that appellate counsel was ineffective is legally insufficient.

Issue 2

Ineffective Assistance of Appellate Counsel

In his second claim, Wright argues that appellate counsel failed to raise numerous meritorious issues which would have warranted reversal. Claims of ineffective assistance of appellate counsel are reviewed under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must demonstrate that counsel’s performance was below that expected of competent counsel and that counsel’s deficient performance resulted in prejudice to the defendant. However, claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been raised on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Much of Wright’s claim that appellate counsel was ineffective involves issues that were not preserved for appeal by trial counsel and should have been raised in a 3.850 proceeding for ineffective assistance of trial counsel. Appellate counsel has no obligation to raise issues on appeal that were not preserved for review. See Robinson v. Moore, 773 So.2d 1, 4 (Fla.2000).

Specifically, Wright argues that “appellate counsel failed to raise the prosecutor’s ‘knowing presentation of false argument to the jury.’ ” This claim was raised in Wright’s first postconviction proceeding, see Wright v. State, 581 So.2d 882, 884 (Fla.1991), and will not be reconsidered in this habeas proceeding. See Mann v. Moore, 794 So.2d 595, 600-01 (Fla.2001) (finding that the defendant’s claim was procedurally barred because the merits of the claim had been raised and rejected in two prior proceedings).

Wright next argues appellate counsel failed to raise an issue regarding Wright’s absence from the proceeding concerning the jury’s request for a readback. In Wright’s first motion for postconviction relief, he argued that the trial court committed reversible error by communicating by written note with the jury in his absence. The communications involved the same request for a readback Wright now raises in this habeas petition under the guise of ineffective assistance of appellate counsel. In affirming the denial of Wright’s first postconviction motion, we adopted the trial court’s written order which stated that a claim involving Wright’s absence from the courtroom while the Court communicated with the jurors should have been raised on direct appeal. See Wright v. State, 581 So.2d 882, 885-86 (Fla.1991). However, there was no objection at trial to the procedure that was utilized in answering the jury’s inquiry. Therefore, appellate counsel was not ineffective for failing to raise an unpreserved issue. See Freeman v. State, 761 So.2d 1055 (Fla.2000).

Moreover, the defendant has failed to demonstrate that the procedure employed by the trial court was erroneous. The jury communicated with the trial judge that it wanted some testimony reread. After consultation with both the defense attorney and the prosecutor, the judge sent a note to the jury asking for specificity in regards to what it wanted the court to reread. Once that information was ascertained, the State objected to the reading of the requested testimony, and defense counsel objected, saying all of the witness’s testimony should be read or none. Therefore, the trial court decided no testimony would be read. In the presence of the defendant, the trial judge instructed the jury to rely on its collective memories regarding the testimony in question. This procedure was in substantial compliance with Florida Rule of Criminal Procedure 3.410, which governs jury requests to review evidence or receive additional instructions. Here, the judge’s instruction was given to the jury in person and in the presence of all parties. See Hildwin v. State, 531 So.2d 124, 126 (Fla.1988) (finding that the judge violated the rule by failing to return the jury to the courtroom after receiving a jury request, but instead providing a written instruction for jurors to rely on their memory of the testimony).

Wright next argues that appellate counsel failed to raise the fact that Wright objected to the State’s questioning of the hair expert. The hair expert was asked how many times she had been called upon to match hair strands, and of those occasions, how many times she was able to make a finding. Defense counsel objected, arguing that the testimony sought was not the result of a scientific test and was therefore “irrelevant and in terms of its scientific accuracy and reliability, incompetent.” Defense counsel argued that he stipulated to the expert’s experience, but that this question called for testimony related to statistical matters that was scientifically unreliable. The objection was not on the ground that the testimony was self-vouching, as Wright argues here. In order to preserve an issue for appellate review, the issue must be presented to the lower court and the specific legal argument or ground to be argued on review must be part of that presentation. Otherwise, the error is not considered preserved. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985). As stated above, appellate counsel is not ineffective for failing to raise on appeal an issue that was not preserved. See Freeman, 761 So.2d 1055.

Next, Wright asserts that appellate counsel failed to adequately reply to the State’s answer brief on appeal. Wright fails to make the appropriate showing for consideration of a claim of ineffective assistance of counsel under Strickland, and his conclusory allegations are insufficient to warrant relief. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

Wright also argues that appellate counsel failed to challenge both his and trial counsel’s absence from an off-the-record conference between the trial judge and at least one potential juror, after which the judge excused the juror. The record indicates that defense counsel was present in the courtroom when the trial judge conducted his initial inquiries to the jury panel. In the initial inquiry phase, the trial judge introduced court personnel and invited the potential jurors to approach the bench if they had any hardships that would prevent them from serving. After this invitation, there was an off-the-record discussion, whereupon the judge announced that he would excuse juror number 125 because that juror was the only available paramedic and full-time fire personnel in the community. Defense counsel made no objection to the off-the-record discussions between the judge and persons who approached the bench to discuss a potential hardship.

During the general qualification process under section 40.013(6), Florida Statutes (1997), removal of a potential juror for hardship is within the trial court’s discretion. See Jones v. State, 749 So.2d 561, 562 (Fla. 2d DCA 2000). The Fifth District recently described the juror qualification proceeding stating, “Counsel or a defendant does not ordinarily participate in this type of qualification process, although neither is excluded from doing so. In many instances, counsel and the defendant are not present because this preliminary qualification process occurs days pri- or to the trial.” O’Quendo v. State, 823 So.2d 834, 836 (Fla. 5th DCA 2002). In this case, the record does not indicate whether defense counsel participated in the off-the-record discussions with the potentially disqualified jurors. However, the record clearly indicates no objection was raised by defense counsel to the off-the-record discussions or the disqualification of any juror. Because the issue was not preserved at trial, appellate counsel cannot be deemed ineffective for failing to raise the issue on appeal. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000) (“[I]neffec-tive assistance of counsel cannot be argued where the issue was not preserved for appeal_”).

Finally, Wright argues that appellate counsel failed to raise as error the trial judge’s statement to the venire that the judge is responsible for sentencing decisions. This issue could have been raised on direct appeal if trial counsel had preserved the error. Appellate counsel cannot be considered ineffective for failing to raise issues which were not properly raised at trial or preserved for review. See Freeman.

Issue 3

Apprendi v. New Jersey

Wright’s third claim involves the constitutionality of his sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi holds that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. The Supreme Court has recently extended the holding in Apprendi, making it applicable to capital cases. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We have subsequently considered the effect of Ring on Florida’s capital sentencing scheme in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). In Bottoson and King, we discussed the application of Ring and Apprendi to Florida’s capital sentencing scheme, and rejected the constitutional challenge, as we do here. We also note that Wright was found guilty by the same jury of burglary and sexual battery beyond a reasonable doubt. Therefore, we deny relief on this claim.

Issue 4

Failure to Reweigh Aggravating and Mitigating Circumstances

Finally, Wright argues that this Court struck an aggravating circumstance on direct appeal and failed to reweigh the remaining aggravating and mitigating circumstances as required by Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). Wright also seems to argue that there was mitigating evidence presented that should have been found by the trial court.

On direct appeal, we affirmed the trial court’s order finding there were no mitigating circumstances. See Wright, 473 So.2d at 1282. Wright did not raise this claim in a motion for rehearing following our opinion in his initial appeal. We therefore conclude that he abandoned this claim. See Lightbourne v. State, 841 So.2d 431, 442 (Fla.2003) (finding that a claim which could have been raised in a motion for rehearing but was not was abandoned and procedurally barred from consideration in a postconviction proceeding); see also Garcia v. State, 816 So.2d 554, 569 (Fla.2002). Therefore, to the extent Wright argues this Court erred in failing to find the existence of mitigation, this claim is procedurally barred.

We also deny Wright’s claim made pursuant to Sochor v. Florida. On direct appeal, we struck the cold, calculated, and premeditated (CCP) aggravating factor, finding that the degree of heightened premeditation necessary for CCP was not proved beyond a reasonable doubt. We stated: “Because the court properly found there were no mitigating and three aggravating circumstances, we conclude the imposition of the death penalty was correct and find it unnecessary to remand for a new sentencing hearing. We also find the imposition of the death penalty in this case is proportionately correct.” Wright, 473 So.2d at 1282 (citations omitted). We note that both our decision on direct appeal and our decision in Wright’s appeal of the denial of his first 3.850 motion were issued prior to the Supreme Court’s decision in Sochor. This habeas petition, filed nearly ten years after this claim arose, is the first time Wright has presented this issue for our review.

We conclude that even after removing CCP from consideration of the valid aggravating circumstances, three valid aggravating circumstances remain and no valid mitigating circumstances exist. “Striking one aggravating factor when there are no mitigating circumstances does not necessarily require resentencing because, ‘[i]f there is no likelihood of a different sentence, the error must be deemed harmless.’ ” Sochor v. State, 619 So.2d 285, 298 (Fla.1993) (quoting Rogers v. State, 511 So.2d 526, 535 (Fla.1987)). Under the circumstances of this case, we find that there is no likelihood of a different sentence even if the CCP aggravator had been eliminated from the trial court’s consideration. Thus, the trial court’s reliance on the unsupported aggravator was harmless error. See Bruno v. Moore, 838 So.2d 485 (Fla.2002); Sochor, 619 So.2d at 293. We therefore deny relief on this claim.

CONCLUSION

For all of the reasons stated above, we affirm the trial court’s denial of postconviction relief. We also deny Wright’s petition for a writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, and QUINCE, JJ., and SHAW, Senior Justice, concur.

LEWIS, J., concurs in result only.

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

ANSTEAD, C.J.,

concurring in part and dissenting in part.

For the reasons I expressed in my opinion in Duest v. State, No. SC00-2366, 855 So.2d 33, 2003 WL 21467248 (Fla. June 26, 2003), I cannot agree with the majority’s discussion of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The trial judge in this case found four aggravating circumstances, including that the murder was committed after the defendant committed burglary and sexual battery. The majority is rejecting the Ring claim on the ground that the jury’s guilt phase verdict finding the defendant guilty of burglary and sexual battery may be used to support the judge’s finding of the aggravating circumstance based on the burglary and sexual battery. Of course, this ignores the fact that there is no support in Florida’s statutory death penalty scheme authorizing the Court to do this. Moreover, this holding ignores the fact that the trial judge found three important additional aggravating circumstances and expressly utilized them in imposing the death sentence. These additional findings included an aggravating circumstance that we struck on appeal. See Wright, 473 So.2d at 1282 (holding that the trial court erred in finding that the murder was cold, calculated, and premeditated). Hence, the death sentence in this case was expressly predicated upon factual findings made by the judge alone, a practice directly contrary to the express mandate of Ring forbidding sentences based upon circumstances found by the judge alone.

      . Wright also asserts that when we conduct our analysis of the prejudicial effect of any error, we must consider the evidence that would have been presented but for the ineffectiveness of trial counsel. Wright presented a claim of ineffective trial counsel at the first postconviction proceeding. We held then that Wright failed to meet his burden of showing deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Wright, 581 So.2d at 883. We did not address the prejudice prong of the Strickland test. Because Wright failed to show deficient performance of trial counsel, we will not address the evidence Wright alleges would have been presented at trial but for the ineffectiveness of counsel. See Downs v. State, 740 So.2d 506, 518 n. 19 (Fla.1999).

      . Wright has previously litigated other claims of ineffective assistance of counsel, and this Court affirmed the trial court’s determination that counsel's performance was not deficient. See Wright v. State, 581 So.2d 882, 886 (Fla.1991). Thus the only issue now before this Court is whether defense counsel had an actual conflict of interest that caused him to render ineffective assistance. See Herring v. State, 730 So.2d 1264 (Fla.1998).

      . Wright argues that Pearl’s investigator, Freddie Williams, was a special deputy as well, and that Williams' status also amounts to the denial of effective assistance of counsel. There is no evidence in support of this claim. The mere fact that Williams was a member of Wright’s "defense team,” and was a special deputy, without more, falls short of the demonstration Wright must make in support of this claim as set forth in Quince v. State, 732 So.2d 1059 (Fla.1999). Although Williams testified at the evidentiary hearing, he was not questioned about his status as a special deputy-

      . This issue was not addressed in the trial court's order denying postconviction relief, but was raised by the defendant in the supplemental 3.850 motion.

      . Specifically, Wright argues that appellate counsel (1) failed to raise the prosecutor’s “knowing presentation of false argument” to the jury; (2) failed to raise the issue regarding Wright’s absence from the proceeding during the jury’s request for a readback; (3) failed to raise the fact that Wright objected to the State’s questioning of the hair expert; (4) in the appellate reply brief, failed to contest the State’s assertion that Wright had not objected to the investigator’s testimony at trial; (5) failed to challenge Wright's absence from the initial inquiry of potential jurors regarding their qualifications; and (6) failed to raise as error the trial judge's statement to the venire that the judge is responsible for sentencing decisions.

      . While the Supreme Court extended Appren-di to capital sentencing schemes in Ring, it did not alter the exception for prior convictions. In this case, Wright was also convicted of sexual battery, burglary, and grand theft.

      . We hereby deny Wright’s motion to file supplemental briefing on the Apprendi/Ring issue.

      . Time limitations for raising claims in petitions for writs of habeas corpus were introduced in October 2001. See Fla. R.Crim. P. 3.851.

      .The remaining valid aggravating circumstances are: (1) the murder took place after the defendant committed rape and burglary; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (3) the murder was especially heinous, atrocious, or cruel.

      .In our opinion on direct appeal, we indicated that the trial court found the following aggravating circumstances:
      (1) the murder took place after the defendant committed rape and burglary: (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest; (3) the murder was especially heinous, atrocious, and cruel; (4) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

        Wright v. State, 473 So.2d 1277, 1281 (Fla.1985).

      . In footnote 6, the majority seems to rely in part on Wright’s contemporaneous conviction of second-degree grand theft as a basis for rejecting the claim, although grand theft is not one of the crimes listed as a statutory basis for finding this aggravating circumstance. § 921.141(5)(d), Fla. Stat. (1983).

      . Because we have not yet determined how our Ring analysis would be affected in situations where an aggravating circumstance is struck, I would also grant Wright’s motion to file supplemental briefing on the Apprendi and Ring issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    T.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3321.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2003.
    Rehearing Denied Oct. 1, 2003.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See Moore v. State, 664 So.2d 343 (Fla. 5th DCA 1995).

AFFIRMED.

GRIFFIN, THOMPSON and TORPY, JJ., concur.


author: SHEVIN, Judge.

text:
    MARATHON RESORT AND MARINA, LTD., a Florida limited partnership, by and through its general partner, MARATHON RESORT AND MARINA, INC., a Florida corporation, Appellants, v. DITOCCO KONSTRUCTION, INC., f/k/a Ditocco Construction, Inc., and Decktight Roofing Services, Inc., Appellees.
    No. 3D02-2096.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Graner Root & Heimovics and Thomas U. Graner and Joseph Heimovics, for appellants.
    Oscar E. Soto, and Burger & Traitor, P.A., Andrew T. Traitor, Miami, for appel-lees.
    Before GERSTEN and SHEVIN, JJ., and NESBITT, Senior Judge.
   SHEVIN, Judge.

We reverse the order requiring appellants to deposit funds in the court registry prior to entry of a final judgment. That order is, “in effect, an order granting an injunction and is thus reviewable under Florida Rule of Appellate 9.130(a)(3)(B).” CMR Distrib., Inc. v. Resolution Trust Corp., 593 So.2d 593, 594 (Fla. 3d DCA 1992). Appellees have failed to show the unavailability of an adequate remedy at law and the likelihood of irreparable harm. Those two elements are essential to entry of an injunction. Proctor v. Eason, 651 So.2d 1301 (Fla. 2d DCA 1995).

Reversed.


text:
    TIME INTERNATIONAL, S.A., INC., a Florida corporation, and Rubina de Mexico, S.A., a Mexican corporation, Petitioners, v. SAFILO U.S.A., INC., a foreign corporation d/b/a Safilo Latin America, Respondent.
    No. 3D03-666.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.
    Rehearing Denied Oct. 29, 2003.
    Addicott & Addicott, Hollywood; Robert S. Glazier, Miami, for petitioners.
    Jennifer S. Carroll, West Palm Beach; Randolph W. Adams, Fort Lauderdale, for respondent.
    Before LEVY, SHEVIN, and RAMIREZ, JJ.
   SHEVIN, Judge.

Plaintiff, Time International, S.A., Inc., and Rubina de Mexico, S.A., [collectively “plaintiffs”] petition for a writ of certiorari to quash the portion of an order requiring production of a witness, a former employee, or suffer exclusion of the witness at trial, with an accompanying adverse presumption to plaintiffs’ position at trial from the witness’s testimony. We deny the petition.

In Time International S. A., Inc. v. Safilo U.S.A., Inc., 802 So.2d 382 (Fla. 3d DCA 2001), review denied, 823 So.2d 125 (Fla.2002), we reversed a dismissal order, holding that sanction to be too severe in the face of plaintiffs’ disregard of discovery orders. However, we remanded for the court to “exercise its discretion to impose sanctions other than dismissal.” Time, 802 So.2d at 383. The new sanction we review here is not as severe as the ultimate sanction of dismissal, and is within the court’s discretion.

Although plaintiffs may not have any control over the witness at this time because the witness left their employ in 1999, this litigation had been pending for over seven years by that point. Defendant had requested information intended to locate the sought-after witness since the litigation began in 1992, and plaintiffs have been obstreperous in their refusal to cooperate and produce the witness. See Time Int’l, S.A., Inc.

We recognize that “the exclusion of a witness’s testimony is a drastic remedy which should be utilized only under the most compelling circumstances.” Vega v. CSCS Int’l, N.V., 795 So.2d 164 (Fla. 3d DCA 2001). However, in this case there was a finding of wrongdoing by plaintiffs, who are being sanctioned. Vega, 795 So.2d at 167, and cases cited therein. While exclusion is a drastic remedy, even the plaintiffs will agree that it is not as severe as dismissal, and plaintiffs have failed to demonstrate that they will suffer irreparable harm if the order striking the witness is not quashed. Sardinas v. Lagares, 805 So.2d 1024 (Fla. 3d DCA 2001). This case presents just such a compelling circumstance justifying the exclusion of the witness’s testimony. We therefore conclude that there has been no departure from the essential requirements of law and deny the writ.

Certiorari denied.


text:
    David MRAZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2395.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    Rehearing Denied Sept. 30, 2003.
    David Mraz, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Henriquez v. State, 829 So.2d 355 (Fla. 5th DCA 2002); Coppola v. State, 795 So.2d 258 (Fla. 5th DCA 2001).

SHARP, W., PLEUS and MONACO, JJ., concur.


text:
    Lenon L. McARTHUR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2171.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    Rehearing Denied Oct. 2, 2003.

      Lenon L. McArthur, Jr., Moore Haven, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Robinson v. State, 707 So.2d 688, 698 (Fla.1998); Duer v. State, 738 So.2d 1084 (Fla. 5th DCA 1999).

SHARP, W., THOMPSON and PALMER, JJ., concur.


author: SAWAYA, C. J.

text:
    MIVAN (FLORIDA), INC. n/k/a Mivan, Inc., Appellant, v. METRIC CONSTRUCTORS, INC., et al., Appellees.
    No. 5D02-1788.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Lewis J. Conwell and Matthew J. Meyer of Piper Rudnick LLP, Tampa, for Appellant.
    Herman M. Braude of Braude & Margu-lies, P.C., Washington, DC and Stuart H. Sakwa of Leiby Taylor Stearns Linkhorst and Roberts, P.A., Fort Lauderdale, for Appellees Metric Constructors, Inc. and Firemen’s Fund Insurance Company.
    Paul L. SanGiovanni, Daniel H. Coultoff and Richard P. Spence of Gronek & La-tham, LLP, Orlando, for Appellee Universal City Development Partners, LP.
   SAWAYA, C. J.

Mivan (Florida), Inc. (hereinafter Mi-van) appeals the final summary judgment in favor of Metric Constructors, Inc. (hereinafter Metric) and Fireman’s Fund Insurance Company (hereinafter Fireman’s). Because issues of material fact remain unresolved that prevent the entry of summary judgment, we reverse.

Universal City Development Partners (hereinafter Universal), an owner and developer of various theme properties in Florida, entered into a general construction contract with Metric, calling for Metric to act as the general contractor on a certain development project at Universal Studios in Orlando. Almost simultaneously, Universal entered into a contract with Mivan pursuant to which Mivan was to perform specialized work on the facades of several buildings in the project. Universal subsequently assigned the Mivan contract to Metric as the general contractor of the project.

Mivan completed its work and filed a claim of hen for uncompensated work performed. When the lien went unsatisfied, Mivan filed a multi-count complaint alleging, among other things, that Metric breached its assigned contract by failing to pay for a substantial amount of the work Mivan performed and seeking foreclosure of its construction hen against Universal. Metric filed a motion for summary judgment alleging that Mivan failed to properly obtain and maintain a license in accordance with Chapter 489, Florida Statutes, and thus could not enforce the contract pursuant to apphcable statutory law. The trial court granted Metric’s motion and Mivan appealed.

In Krol v. City of Orlando, 778 So.2d 490, 491-92 (Fla. 5th DCA 2001), this court enunciated the appropriate standard of review that we must apply when deciding whether a trial court correctly ruled on a motion for summary judgment:

The proper standard of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In order to determine the propriety of a summary judgment, this court must resolve whether there is any “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, “[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact.” City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, the Appellants, and if the slightest doubt exists, the summary judgment must be reversed. See Sierra.

Whether summary judgment is appropriate in the instant case depends on the proper application of certain provisions contained in Chapter 489, Florida Statutes, to the facts of the instant case. This legislative compilation was enacted based on the Legislature’s recognition “that the construction and home improvement industries may pose a danger of significant harm to the public” and the perceived need “in the interest of the public health, safety, and welfare to regulate the construction industry.” § 489.101, Fla. Stat. (1997). Specifically, the trial court entered summary judgment in reliance on section 489.128, Florida Statutes (1997), which provides:

As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply.

§ 489.128, Fla. Stat. (1997).

If a business organization proposes to engage in contracting in Florida, it must apply for a certificate of authority through a qualifying agent. § 489.119(2), Fla. Stat. (1997). The qualifying agent is “responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job.” § 489.1195(l)(a), Fla. Stat. (1997). The qualifying agent must be certified or registered in order for the business organization to obtain a certificate of authority to conduct the type of contracting business for which the qualifying agent is certified or registered. § 489.119(3)(a), Fla. Stat. (1997). Any person who wishes to engage in the business of contracting in Florida must comply with the certification or registration requirements. § 489.113(2), Fla. Stat. (1997); see also § 489.105(7)-(11), Fla. Stat. (1997). The specific certification or registration criteria are relative to whether a contractor wants to engage in contracting business statewide or in a localized area within the state. § 489.113(1), Fla. Stat. (1997); see also § 489.105(7)-(11), Fla. Stat. (1997); Deep South Sys., Inc. v. Heath, 843 So.2d 378, 379 n. 1 (Fla. 2d DCA 2003). Mivan argues that it complied with these statutory provisions and that it obtained and maintained a license for all relevant periods of the contract. Therefore, according to Mivan, Metric has failed to carry the burden of proof sufficient for summary judgment.

The record reflects that Mivan applied for a qualified business organization license number in January 1997. Mivan asserts that the application was submitted on January 3, 1997, while Metric contends it was not until January 30, 1997. The $50 filing fee was not credited until January 24, 1997, thus the latter date of application appears to be accurate. Don Vinson was named as the qualifying agent on that application. Mivan also provided a letter from the Department of Business and Professional Regulation dated February 27, 1997, which authorized Don Vinson to “practice contracting as the qualifier” for Mivan “pending the processing and receipt of the actual license with an expiration date of August 31, 1998.” The second paragraph of the letter provides that “[ujntil the above expiration date, you are entitled to all the privileges allowed under the Law, Part 1, Chapter 489, of the Florida Statutes.” Mivan also provided a copy of the actual certification for Don Vinson as general contractor mentioned in the above letter. The official certification was dated March 28, 1997. Another letter from the Department authenticates Mi-van’s status as a Florida qualified business organization as of June 3, 1997, through at least December 19, 2001, the date of the letter. Finally, according to Mivan, it had regularly paid all required fees and there were no reports of any disciplinary or other derogatory proceedings on file with the Department of Business and Professional Regulation or its construction arm, the Construction Industry Licensing Board.

Mivan contends that even if it did not have a valid license at the time it contracted with Universal, it obtained a license shortly thereafter. Specifically, Mivan argues that the “cure” provision of section 489.128 cures the delay in licensing from May 16, 1997, when the contract with Universal was actually signed, to June 3, 1997, the date on the business qualifier license. Hence, under the “cure” provisions of section 489.128, summary judgment for Metric was inappropriate. Metric argues that because the Legislature subsequently amended the statute in 2000 to delete the “cure” provision, the Legislature never intended the “cure” provision to apply and the amendment should be applied retroactively in order to give effect to legislative intent. We disagree. The legislative amendment enacted in 2000 effects a substantive change in the statute that should not be retroactively applied. Michnal v. Palm Coast Dev., Inc., 842 So.2d 927, 930 n. 1 (Fla. 4th DCA 2003) (“We find the trial court properly applied the pre-2000 version of this statute, since the amendment constitutes a substantive change of the law, not to be applied retroactively.”); The Palms v. Magil Constr. Fla., Inc., 785 So.2d 597 (Fla. 3d DCA), review denied sub. nom., The Palms, 2100 Ocean Blvd., Ltd. v. Magil Constr. Fla., Inc., 805 So.2d 811 (Fla.2001).

The evidence in the record before us, when taken in the light most favorable to Mivan, the nonmoving party, clearly shows that genuine issues of material fact exist that prohibit summary judgment regarding the issue whether Mivan obtained and maintained a proper license. Moreover, we believe that material issues of fact exist regarding whether the person designated as Mivan’s qualifying agent, Don Vinson, actually performed the duties of a qualifying agent and whether he remained employed in that capacity during the time the contract was being performed by Mivan.

We conclude that the trial court erred in entering summary judgment for Metric. The summary judgment is, therefore, reversed and this case is remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER and MONACO, JJ., concur.

      . Although the Universal-Mivan contract provides that the effective date is April 30, 1997, the parties signed the contract on May 16, 1997.

      . This statute was amended effective July 1, 2000, when the Legislature deleted the "cure” provision in the second sentence. Ch.2000-372, § 35, at 3143, Laws of Fla. The Legislature again amended the statute effective June 25, 2003, but that amendment has not been raised as an issue in these proceedings and we offer no opinion regarding the retroactive application of the 2003 enactment.


author: GERSTEN, J.

text:
    CRESCENT MIAMI CENTER, LLC, Appellant, v. DEPARTMENT OF REVENUE, STATE OF FLORIDA, Appellee.
    No. 3D02-3002.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.

      Berger Singerman, and Fred O. Goldberg, for appellant.
    Fowler White Boggs Banker, and Mitchell I. Horowitz, and Tracy R. Gunn (Tampa), Amicus for National Association of Office and Industrial Parks of Florida, Inc., for appellant.
    Charles J. Crist, Jr., Attorney General, and Charles Catanzaro, Assistant Attorney General (Tallahassee), for appellee.
    Before LEVY, GERSTEN, and GREEN , JJ.

       Judge Green did not participate in oral argument.

   GERSTEN, J.

Crescent Miami Center, LLC (“CMC”), appeals a final order entering summary judgment in favor of the Department of Revenue (“DOR”). We affirm based upon our determination that the transfer of real property from a parent company to a newly created subsidiary limited liability company owned by the general limited partner of the parent company, is subject to Florida’s documentary stamp tax statute, Section 201.02(1), Florida Statutes (2000).

The real property at issue was owned by Crescent Real Estate Equities Limited Partnership (“Crescent”). On February 24, 2000, Crescent formed appellant CMC. Immediately after its formation, Crescent transferred 99.9% of its ownership interest in CMC to Crescent Real Estate Funding IX, L.P. (“Crescent Funding”). Crescent transferred the remaining 0.1% to CRE Management IX, L.L.C. (“CRE”).

Immediately thereafter, and again on February 24th, CRE transferred its 0.1% interest in appellant CMC to Crescent Funding. On February 25, 2000, Crescent transferred the real property to CMC. The deed conveying the property states appellant CMC paid $10.00 and “good and valuable consideration” for the property. According to CMC, the sole purpose for the transfer was to separate the property from Crescent’s other assets in order to facilitate future unsecured financing. CMC recorded the deed and paid $1,212,750 in documentary stamp tax. The tax is comprised of $698,000 in state documentary stamp tax pursuant to Section 201.02(1), and $519,750 in Dade County documentary surtax pursuant to Section 201.031(l).

The chart below shows the relationship of the various parties and the property transfer:

Thereafter, appellant CMC applied for refund of the documentary stamp tax and surtax. The DOR denied the application, and CMC filed suit challenging the refund denial. Both parties moved for summary judgment. Final summary judgment was entered in favor of the DOR. CMC appealed the adverse summary judgment, and an agreed motion to allow the National Association of Office and Industrial Parks of Florida, Inc. (“NAOIP”) to file an amicus brief was subsequently granted by this Court.

The documentary stamp tax applies to instruments conveying an interest in Florida real property to a “purchaser” and provides:

On deeds, instruments, or writings whereby any lands, tenements, or other real property, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or any other person by his or her direction, on each $100 of the consideration therefor the tax shall be 70 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 70 cents for each $100 or fractional part thereof of the consideration therefor. For purposes of this section, consideration includes, but is not limited to, the money paid or agreed to be paid; the discharge of an obligation; and the amount of any mortgage, purchase money mortgage hen, or other encumbrance, whether or not the underlying indebtedness is assumed. If the consideration paid or given in exchange for real property or any interest therein includes property other than money, it is presumed that the consideration is equal to the fair market value of the real property or interest therein.

See § 201.02(1), Fla. Stat. (2000).

CMC contends that the tax cannot be imposed in the present case because CMC was not a “purchaser” of the real property, within the meaning of Section 201.02(1). On the other hand, the DOR asserts that the deed tax applies based upon the plain language of the statute, a subsequent amendment, and existing case law.

In 1956, the Florida Supreme Court held that grantee shareholders who had been transferred unencumbered property from a corporation, were not “purchasers” because the transfer was a “mere book transaction.” State ex rel. Palmer-Florida Corp. v. Green, 88 So.2d 493 (Fla.1956). The grantees were not purchasers because they did not pay a “reasonably determinable, consideration for the conveyance as contemplated by Sec. 201.02.”

Thereafter, in 1976, the Court defined a “purchaser” for purposes of the deed tax as “one who obtains or acquires property by paying an equivalent in money or other exchange in value.” See Florida Dep’t of Revenue v. De Maria, 338 So.2d 838, 840 (Fla.1976). In De Maria, the Court found there was no purchaser and no taxable exchange in the transfer of a corporation’s equity in real property to its sole shareholder. However, the shareholder was considered a “purchaser” of the real property to the extent of the mortgage. Significantly, both Palmer-Florida and De Maria were decided under the prior language of Section 201.02(1). Applying the prior language, there was no reasonably determinable consideration, and thus no purchaser could be found. See also De Vore v. Gay, 39 So.2d 796 (Fla.1949)(consider-ation for deed tax purposes must have a reasonable and determinable value).

In 1990, Section 201.02(1) was amended and a statutory definition for “consideration” was added. The amended statute specifies four types of exchange mediums which constitute consideration: (1) the payment of monies; (2) the discharge of any obligation; (3) a mortgage on property whether discharged or not; and (4) the fair market value of the property exchanged. See Ch. 90-132, § 7, Laws of Fla.

The 1990 amendment also created a statutory presumption that non-monetary consideration for property is presumed to be equivalent to the fair market value for property exchanged. Thus consideration can now be reasonably determined by reference to the value of the property deeded, rather than by referencing the value of the property exchanged. In response to the 1990 statutory amendments, the DOR amended its rules to require the payment of stamp tax on property conveyances between shareholders and their respective corporations, see Fla. Admin. Code Rules 12B-4.013(7)-(8), and between partners and their respective partnerships, see Fla. Admin. Code Rules 12B-4.013(10).

In 1998, the Second District applied the amended statute and found that a transfer from two equal shareholders to a corporation was not subject to the deed tax because there was no purchaser. See Kuro, Inc. v. State, Dep’t of Revenue, 713 So.2d 1021 (Fla. 2d DCA 1998). In Kuro, a father and son purchased condominium units, formed a corporation for the purpose of taking title to the units, and thereafter transferred title to the corporation for the purpose of avoiding exposure to potential personal liability. The Second District held the conveyances were book transactions, not sales to a purchaser, because the father and son “received nothing from the corporation that they did not already have.” Kuro, Inc. v. State, Dep’t of Revenue, 713 So.2d at 1023. A concurring opinion in Kuro concluded “there was no purchaser because there was no consideration” and thus in the absence of either a purchaser or consideration, the deed tax did not apply. Kuro, Inc. v. State, Dep’t of Revenue, 713 So.2d at 1023 n. 1 (Judge Doyel, concurring). Two years later, the First District held that a non-proportionate transfer of unencumbered real property into a partnership was subject to the deed tax. See Muben-Lamar, L.P. v. Dep’t of Revenue, 763 So.2d 1209 (Fla. 1st DCA 2000). Two of three partners controlled 99% of the taxpayer partnership and transferred property as an initial capital contribution. The remaining 1% partner did not possess any interest in the real property prior to the transaction. The First District rejected the taxpayer partnership’s argument that it was not a purchaser, and noted the partnership was an entity separate and distinct from its partners.

The court held: “[Muben, Lamar, LP] bought the real property by issuing valuable partnership interests in consideration for land. This case involved a straightforward exchange of land for personalty.” Muben-Lamar, L.P. v. Dep’t of Revenue, 763 So.2d at 1210. The majority certified express and direct conflict with Kuro. The Florida Supreme Court initially granted certiorari, but later dismissed the appeal stating “jurisdiction was improvidently granted.” Muben-Lamar, L.P. v. Dep’t of Revenue, 789 So.2d 337 (Fla.2001).

This Court has not yet applied the amended Section 201.02(1). Reviewing the decisions from our sister district courts, we recognize the need for consistency in tax consequences and for a clear judicial directive interpreting the statutory language of the deed tax. Keeping these principles in mind, we have carefully reviewed the parties’ positions.

CMC makes a superficially convincing and simple argument that no tax is due under Section 201.02(1), contending the real property transfer was just a “book transaction.” According to CMC, beneficial ownership of the real estate did not change, since Crescent owns Crescent Funding, and Crescent Funding owns CMC. It concludes that because of the structure of the transaction, CMC, as grantee, cannot be considered a “purchaser” within the purview of Section 201.02(1), and thus the trial court erred in denying its tax refund claim. We disagree.

Applying the plain language of Section 201.02(1) to the undisputed facts and the face of the deed, we find the deed conveying the real property from the limited partnership to the limited liability company is subject to the documentary stamp tax. First, as pointed out by the DOR, the documentary stamp tax is an excise tax on documents — not a tax on transactions. See Hialeah, Inc. v. Dep’t of Revenue, 380 So.2d 562 (Fla. 3d DCA 1980); Dep’t of Revenue v. McCoy Motel, Inc., 302 So.2d 440 (Fla. 1st DCA 1974). As an excise tax, the documentary stamp tax is imposed on the document itself, and is measured by the particular instrument and conveyance involved. See Dep’t of Revenue v. Citizens Nat’l Bank, 618 So.2d 252 (Fla. 5th DCA 1993)(“[t]he tax is on the document itself and not on the transaction contemplated by the document”). Liability for the tax “is to be solely determined by the form and face of the instrument and not by proof of extrinsic facts.” State Dep’t of Revenue v. McCoy Motel, Inc., 302 So.2d at 442.

Here, the deed from Crescent to CMC conveyed the real property “in fee simple forever.” A title in fee simple implies absolute dominion over land and is “the highest quality of estate in land known to law.” See State v. Jacksonville Expressway Auth., 139 So.2d 135 (Fla.1962). Crescent owned the real property on February 24th. On February 25th, CMC owned the real property, after Crescent executed a deed in consideration of $10.00 and “other good and valuable consideration.” On February 25th, after the deed was executed, Crescent had no interest in the property to convey.

Second, the face of the deed reflects a substantive change of ownership in exchange for consideration. Consideration follows as a natural consequence of the commercial transaction transferring intangible property with exchangeable value, as evidenced by the “other good and valuable consideration” recitation on the deed. Section 201.02(1) does not limit consideration to money, stock, or debt relief.

The amended Section 201.02(1) provides that “[i]f the consideration paid or given in exchange for real property, or any interest therein includes property other than money, it is presumed that the consideration is equal to the fair market value of the real property.” The consideration in the present case is thus reasonably determined by reference to the property deeded.

The deed effectuated a complete change in both the legal title and the beneficial ownership of the property, whereby Crescent surrendered 100% of its equitable ownership in land in consideration for an increased value in its interest in Crescent Funding. See Dean v. Finder, 312 Md. 154, 538 A.2d 1184 (1988)(consideration for transfer of real property to corporation was found in increase in assets of corporation); see also Carpenter v. White, 80 F.2d 145 (1st Cir.1935)(eonveyanee made by trustees of a business trust to a new trust formed as a part of a consolidation in return for shares issued by the trust was held subject to the federal documentary stamp tax; equitable interests of the new shares in the same property were not the same as those of the old shares).

The value of the consideration is the deeded property’s fair market value, which is the amount Crescent’s equity interest in Crescent Funding increased, as a result of Crescent’s deeding the property to CMC. In short, Crescent exchanged equitable ownership of land in consideration for a more valuable equitable ownership of an interest in another limited partnership. See Mangus v. Present, 135 So.2d 417 (Fla.1961)(consideration exists where there is benefit to the promisor or detriment to the promisee); Dorman v. Publix-Saenger-Sparks Theatres, Inc., 135 Fla. 284, 184 So. 886 (1938)(same).

As noted by the Florida Supreme Court, there is a “purchaser” whenever there is “consideration”; likewise, there is “consideration” whenever there is a “purchaser.” See Florida Dep’t of Revenue v. De Maria, 338 So.2d at 840. We find that CMC does meet the statutory requirements as a “purchaser” and thus cannot escape application of the tax on this basis.

Finally, we decline CMC’s invitation to create a judicial exemption from documentary stamp taxes where real property is conveyed between artificial legal entities under these circumstances. Such is the province of the legislature, not the judiciary.

Exemptions from tax are to be strictly construed against the taxpayer. See Dep’t of Revenue v. Anderson, 403 So.2d 397 (Fla.1981); Regal Kitchens Inc. v. Florida Dep’t of Revenue, 641 So.2d 158 (Fla. 1st DCA 1994). Moreover, under the principle of statutory construction “expres-sio unius est exclusio alteráis,” the express mention of one exemption implies the exclusion of others. See Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000). Thus where a statute expressly references exemptions and specifies the situations where those exemptions apply, “an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded.” See Prewitt Mgmt. Corp. v. Nikolits, 795 So.2d 1001 (Fla. 4th DCA 2001); see also Florida Dep’t of Revenue v. Florida Mun. Power Agency, 789 So.2d 320 (Fla.2001)(language used by legislature determines the meaning of the statute).

Chapter 201 specifies four circumstances where a property transfer will be considered exempt from the tax. There is no exemption for “book transactions” which convey an interest in real property by deed among related entities.

In the absence of a specific legislative directive authorizing an exemption, we believe a straightforward application of Section 201.02(1) requires application of the tax to the current deed, which conveys real property from a limited partnership to a limited liability company.

In sum, applying the plain language of Section 201.02(1) to the undisputed facts and the face of the deed, we find the trial court properly denied CMC’s tax refund claim. The deed conveying real property from the limited partnership to the limited liability company is subject to the documentary stamp tax. Accordingly, the order below is affirmed.

Affirmed.

      . Crescent Funding's general partner was CRE and its limited partner was Crescent.

      . CRE is wholly owned by Crescent.

      . Ordinarily, the state tax rate is $.70 on each $100 of the consideration exchanged for real property or any interest therein. See § 201.02(1), Fla. Stat. (2000). However, Miami-Dade County applies a special state tax rate of $.60 per $100 or portion thereof. See § 201.0205, Fla. Stat. (2000). Miami-Dade County imposes an additional county surtax of $.45 on property other than a single-family residence. See Fla. Admin. Code R. 12B-4.012(3).

      . Florida Administrative Code Rule 12B-4.013(7) specifies: "There is a presumption that the consideration is equal to the fair market value of the real property interest transferred.” We note that agency rules are presumed valid, and that it is not within the province of an appellate court to rewrite those rules under the guise of construction. See State v. Jenkins, 469 So.2d 733 (Fla.1985); White v. Moore, 789 So.2d 1118 (Fla. 1st DCA 2001); St. Johns River Water Mgmt. Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72 (Fla. 1st DCA 1998).

      . Since Florida’s documentary stamp tax statutes are patterned after the former federal documentary stamp tax, see Choctawhatchee Elec. Coop., Inc. v. Green, 132 So.2d 556 (Fla.1961), Florida courts have historically interpreted Florida’s documentary stamp tax by reference to federal documentary stamp tax decisions, see State v. Cook, 108 Fla. 157, 146 So. 223 (1933).

      . CMC acknowledges that the purpose of the transfer was to separate the real property from the rest of Crescent's assets for the purpose of facilitating future unsecured financing. The result effectively transformed CMC into a viable entity owning property. We note that as a limited liability company, CMC insulates its owner, Crescent Funding, from liability. See Kanov v. Bitz, 660 So.2d 1165 (Fla. 3d DCA 1995); Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987 (Fla. 4th DCA 1998). We are also mindful of the fact that in situations where a limited liability company merges with any other business entity, recor-dation of deeds and payment of documentary stamp taxes are not required in order to transfer title to real property pursuant to such a merger. See §§ 607.1101, 608.4383(2), and 620.204(l)(b), Fla. Stat. (2002).

      . Section 201.02(6), Florida Statutes (2000), exempts property transferred to tax exempt entities. Section 201.02(7), Florida Statutes (2000), exempts property transferred in the course of a dissolution of marriage. Section 201.24(1), Florida Statutes (2000), exempts obligations to pay money issued by a Florida municipality, political subdivision, or agency. Finally, Section 201.24(2), Florida Statutes (2000), exempts transactions involving lease or rental of educational facilities and sites.


text:
    Jelani EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1156.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 15, 2003.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Jelani Edwards (“defendant”), appeals bis conviction and sentence as an habitual offender, claiming the trial court erred in denying admission of “reverse Williams rule” evidence. We reverse and remand for a new trial.

On March 12, 1999, about midnight, two female employees of Club Mint left work in their car. One employee noticed a Ford SUV with three male occupants following them. Shortly thereafter, the Ford SUV cut them off. Two of the men exited the Ford SUV and confronted the employees, holding them at gunpoint. The two men then drove off in the employee’s car, followed by the third man who drove the Ford SUV.

One of the employees noted the Ford’s license plate and phoned the police. About one hour later, the police stopped the car and the occupants fled. Ultimately, the police apprehended the defendant and found the employee’s stolen items in the Ford. The police did not find the other occupants of the Ford. A short time later, one of the employee’s identified the defendant as the gunman. The defendant was arrested and charged with two counts of armed robbery, one count of aggravated battery with a firearm, one count of armed carjacking and one count of grand theft auto.

While the defendant was incarcerated pending trial, there were multiple extremely similar late night crimes perpetrated on other Club Mint female employees. One case even involved the same victim from the defendant’s present case. The modus-operandi was the same as the crimes for which the defendant was charged.

Understandably, the defendant sought to introduce evidence of these other similar crimes as part of his defense at trial. After all, if he were in jail and these crimes continued to occur, this evidence would gravitate towards showing the defendant’s innocence. The trial court denied his request determining that these crimes were not relevant to his charges. We disagree.

Evidence of other crimes, wrongs or acts is properly admitted when relevant to prove a material fact in issue, but is inadmissible if its sole relevancy is to establish a bad character on the part of the accused. See Williams v. State, 110 So.2d 654 (Fla.1959). It is also well-established that probative evidence tending to prove a defendant’s innocence should be introduced. See Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000). Furthermore, a defendant may introduce similar fact evidence of other crimes or “reverse Williams rule evidence” for exculpatory purposes. See State v. Savino, 567 So.2d 892 (Fla.1990).

Here, the evidence of similar robberies was relevant and probative to establish the defendant’s innocence. The subsequent robberies were committed on other female employees leaving the same nightclub around the same time of night. The time, location and types of victims were almost identical. The evidence of the other robberies was not proffered to establish the defendant’s bad character, but instead as exculpatory evidence to show that someone else might have committed the crimes. The fact that these robberies occurred while the defendant was incarcerated may raise reasonable doubt about whether or not the defendant committed the crimes for which he was charged.

As the Florida Supreme Court has recognized, reverse Williams rule evidence has a lower potential for prejudice to the State than standard Williams rule evidence has to the defendant, thus, the trial court has somewhat less discretion to exclude reverse Williams rule evidence. See Palazzolo, 754 So.2d at 740.

Applying these principles, we conclude the trial court erred in refusing to admit evidence of similar crimes pursuant to the reverse Williams rule. Accordingly, the case must be reversed and remanded for a new trial.

Reversed and remanded for a new trial.