text:
    Duane E. OWEN, Petitioner, v. James V. CROSBY, Jr., etc., et al., Respondents. Duane E. Owen, Appellant, v. State of Florida, Appellee.
    Nos. SC01-2146, SC01-2476.
    Supreme Court of Florida.
    July 11, 2003.
    Rehearing Denied Sept. 2, 2003.

      James L. Driscoll, Jr., Assistant CCRC and Eric Pinkard, Assistant CCRC, Tampa, FL, for Petitioner/Appellant.
    Charles J. Crist, Jr., Attorney General, and Celia A. Terenzio, Melanie Dale, and Debra Rescigno, Assistant Attorneys General, West Palm Beach, Florida, for Re-spondenVAppellee.
   PER CURIAM.

Duane Eugene Owen, a prisoner under sentence of death, appeals an order of the trial court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Additionally, Owen petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the decision of the trial court denying postconviction relief and deny habeas corpus relief.

FACTS AND PROCEDURAL HISTORY

Duane Eugene Owen (Owen) was convicted of first-degree murder, sexual battery, and burglary, and sentenced to death. The facts of the case are summarized by this Court in Owen v. State, 596 So.2d 985, 986-87 (Fla.1992):
The body of the victim, Georgianna Worden, was discovered by her children on the morning of May 29, 1984, as they prepared for school. An intruder had forcibly entered the Boca Raton home during the night and bludgeoned Wor-den with a hammer as she slept, and then sexually assaulted her. Owen was arrested the following day on unrelated charges and was interrogated over several weeks. He eventually confessed to committing numerous crimes, including the present murder and a similar murder in Delray Beach in March 1984. See Owen v. State, 560 So.2d 207 (Fla.1990), cert. denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990). At trial on the present murder, sexual battery and burglary, the evidence consisted of Owen’s confession, his fingerprint on a library book at the murder scene, and other corroborating evidence. The jury returned guilty verdicts on the charges and recommended death by a vote of ten to two. The trial judge followed the jury’s recommendation and imposed death, finding the aggravating circumstances outweighed the mitigating.

On July 31, 1986, after Owen was convicted and sentenced, but before this Court ruled on his appeal, he prematurely filed a motion for postconviction relief. The post-conviction proceeding was stayed pending his appeal, and Owen was permitted to amend his motion several times. On November 5, 1997, the trial court held a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), after which the trial court summarily denied a number of claims. However, the trial court found that an evidentiary hearing was required on the following claims:

(1) Trial counsel rendered ineffective assistance in the guilt phase by failing to provide mental health experts with information necessary to conduct an accurate competency exam; (2) trial counsel rendered ineffective assistance in the guilt phase by failing to mount an insanity or any other defense and failing to call any defense witnesses; (3) attorneys Kohl and Krischer failed to disclose to Owen various conflicts of interest; (4) trial counsel was ineffective in the penalty phase by failing to investigate and present statutory and nonstatutory mitigating evidence and by presenting only one (minor) witness; (5) trial counsel was ineffective in failing to raise various issues. The court also deferred ruling on several additional claims.

Owen v. State, 773 So.2d 510, 512-13 n. 4 (Fla.2000). At the evidentiary hearing, after the first witness’s testimony, Owen’s counsel informed the court that Owen had decided not to proceed with the hearing because the attorney-client privilege in the Slattery murder case would be violated. After explaining to Owen the consequences of his decision, the trial court ended the hearing and denied relief on the rule 3.850 motion.

Subsequently, Owen appealed the trial court’s denial to this Court. Owen raised eighteen claims. This Court affirmed the trial court, finding that Owen waived any attorney-client privilege that existed between him and trial counsel when he accused counsel of ineffectiveness and conflict of interest. This Court also found that Owen waived his ineffective assistance of counsel and conflict of interest claims. Next, this. Court held that the principles underlying Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were inapplicable to the instant case. Finally, the Court found that Owen’s remaining claims were procedurally barred. See Owen, 773 So.2d at 515. On June 29, 2001, Owen filed a pro se motion for postconviction relief, which was summarily denied. Owen now appeals the trial court’s denial of his rule 3.850 motion. Additionally, Owen petitions this Court for a writ of habeas corpus, raising eleven claims.

LAW AND ANALYSIS

Rule 3.850 Motion

Owen raises a total of five claims on appeal from the denial of postconviction relief. We find that this successive motion is governed by Florida Rule of Criminal Procedure 3.850(f), which allows a trial court to dismiss a successive petition if it fails to allege new or different grounds and the prior determination was on the merits; or if new and different grounds are alleged, the trial court finds the failure to assert those grounds in a prior motion constituted an abuse of the procedures governed by the rule. A second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion. See Pope v. State, 702 So.2d 221, 223 (Fla.1997). Although claims that could have been raised in a prior postconviction motion are procedurally barred, this Court has held that a defendant may file successive postconviction relief motions that are based on newly discovered evidence. See White v. State, 664 So .2d 242, 244 (Fla.1995). In order to overcome a procedural bar, a defendant must show that the newly discovered facts could not have been discovered with due diligence by collateral counsel and raised in an initial rule 3.850 motion. See id. Based on these principles, we affirm the summary denial of relief on claims 1, 2, and 3, which are ineffective assistance of counsel claims, because these claims were raised in Owen’s prior 3.850 motion. Since Owen does not base these present claims upon newly discovered evidence, that exception does not apply here. Claim 4, Owen’s Brady claim, is insufficiently pled because it is unclear as to when Owen obtained the information he claims that the State withheld. Moreover, Owen fails to allege this material was in the State’s possession as required under Brady. See Brady, 873 U.S. at 87, 83 5.Ct. 1194. Finally, because Owen’s claims are either successive or insufficiently pled, it is unnecessary for this Court to reach the merits of claim 5 concerning the trial court’s failure to attach portions of the record. Therefore, we affirm the trial court’s order summarily denying postcon-viction relief.

Habeas Corpus Petition

Owen raises, inter alia, seven claims of ineffective assistance of appellate counsel as well as issues involving the constitutionality of Florida’s capital punishment statute. After reviewing each claim, we find that Owen has failed to demonstrate that he is entitled to habeas corpus relief.

We have repeatedly held that claims of ineffective assistance of appellate counsel are properly brought in a petition for writ of habeas corpus. See Thompson v. State, 759 So.2d 650, 660 (Fla.2000); Groover v. Singletary, 656 So.2d 424 (Fla. 1995); Knight v. State, 394 So.2d 997, 999 (Fla.1981). To prove ineffective assistance of appellate counsel, a claimant must show that appellate counsel performed deficiently and that the deficiency compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. See Teffeteller v. Dugger, 734 So.2d 1009, 1026 (Fla.1999); Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). Appellate counsel is not ineffective for failing to raise issues not preserved for appeal. See Medina v. Dugger, 586 So.2d 317, 318 (Fla.1991). However, an exception is made when appellate counsel fails to raise a claim which, although not preserved at trial, represents fundamental error. See Roberts v. State, 568 So.2d 1255, 1261 (Fla.1990). A fundamental error is error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1997).

Owen first argues that appellate counsel was ineffective for failing to argue the State violated section 90.410, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.172 by introducing into evidence statements that he made during plea negotiations. In Stevens v. State, 419 So.2d 1058 (Fla.1982), this Court described the two-tiered process for determining whether a discussion should be characterized as a plea negotiation so as to render it inadmissible in evidence.

To determine whether a statement is made in connection with plea negotiations, a court should use
a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.
United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); see also United States v. O’Brien, 618 F.2d 1234 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980); United States v. Pantohan, 602 F.2d 855 (9th Cir.1979). Whether a defendant’s subjective expectation of negotiating a plea is reasonable depends on whether the state has indicated a willingness to plea-bargain and has in fact solicited the statement in question from the defendant. Unsolicited, unilateral utterances are not statements made in connection with plea negotiations.

Id. at 1062. Here, Owen fails to meet either prong of the test.

Owen claims that because he had previously negotiated a plea with Detective Marc Woods in 1982, this led him to believe that he was negotiating a plea with the State in the instant case. Owen also contends that numerous statements made by Officer Kevin McCoy (McCoy) led him to actually and reasonably believe that the officers had the power to negotiate which charges he would face. However, Owen fails to acknowledge that McCoy told him prior to the interview and repeatedly throughout the interview that he could not make any promises. Further, after a dinner break, McCoy read Owen his Miranda rights, which included the statement: “I can make no threats or promises to induce you or force you to make a statement. It must be of your own freewill,” Owen indicated that he understood his rights. Moreover, McCoy told Owen that he was not prepared to “dwindle down” the charges to get him to talk. In fact, McCoy told Owen that he could not even tell him what the charges against him would be: “I have to sit down with the attorney and review it, pal. I can’t — I can’t tell you what it’s going to be.” Owen acknowledged that he knew if he confessed there was a possibility that he could receive a death sentence because McCoy could not “guarantee promises.” Owen also stated that he knew the State Attorney was the only person that could “give guarantees.” Thus, it appears that Owen has misrepresented the record with respect to his actual, subjective expectation; clearly the record shows that Owen knew that the officers could not negotiate a plea in this case.

The instant case differs from the situation this Court considered in Richardson v. State, 706 So.2d 1349 (Fla.1998). In Richardson, the defendant’s confession took place during ongoing plea negotiations, where a written plea agreement predicated upon prior plea discussions was fully executed by the State Attorney and presented to the defendant for consideration. See id. at 1354. The officer in Richardson, unlike the officers here, repeatedly told the defendant “that the State would negotiate with him if he would give a statement.” Id. at 1355. Since the facts show that Owen could not have had a reasonable subjective belief that his statement was a part of any plea negotiations, Owen fails to show how appellate counsel’s failure to raise this claim was deficient conduct.

Next, Owen argues appellate counsel was ineffective for failing to argue that the jury venire was unconstitutional because it excluded African Americans. Owen cites Spencer v. State, 545 So.2d 1352 (Fla.1989), as support for his claim. In Spencer, the defendant’s conviction for first-degree murder was reversed because this Court found that an administrative order that created special districts for jury selection caused an unconstitutional exclusion of a large portion of the black population from the jury pool of the district from which the jury for the trial of the defendant, a black man, was drawn. Subsequently, in Moreland v. State, 582 So.2d 618 (Fla.1991), this Court stated that Spencer did not constitute a fundamental change in law. We held that the decision should be applied retroactively because it would be fundamentally unfair to deny the defendant relief where other convicted defendants had obtained relief based upon a systematic exclusion of blacks from a jury pool. See id. at 620. However, we noted that had Moreland failed to raise the issue of the constitutionality of the jury pool, he would not be entitled to relief. See id. at 620 n. 3.

Here, trial counsel failed to raise an issue regarding the constitutionality of the jury pool at trial and the issue was not raised on direct appeal. Similarly, in Nelms v. State, 596 So.2d 441 (Fla.1992), the defendant failed to challenge the constitutionality of the jury pool at trial or on direct appeal. This Court denied relief, stating:

We indicated in Moreland that had the petitioner failed to raise the issue of the constitutionality of the jury pool at trial and on direct appeal, he would not be entitled to relief. 582 So.2d at 620 n. 3. Nelms did not raise at trial or on direct appeal the issue upon which we granted relief in Moreland. His statutory challenge to the grand jury cannot be equated to the constitutional claim regarding petit jury selection upon which relief was granted in Moreland. The fundamental fairness or uniformity concerns present in that case are not present here. Further, Spencer, the first ease recognizing this claim, was decided more than three years after Nelms’ conviction was affirmed. Defense counsel cannot be held ineffective for failing to anticipate the change in the law. Stevens v. State, 552 So.2d 1082, 1085 (Fla.1989).

Nelms, 596 So.2d at 442. Here, because trial counsel did not challenge the Palm Beach County jury selection process, this issue was not preserved for appellate review. Moreover, this Court has never held that the error identified in Spencer may be considered fundamental. Appellate counsel cannot be considered ineffective for failing to raise, issues that were unpre-served and do not constitute fundamental error. See Downs v. Moore, 801 So.2d 906, 910 (Fla.2001). Therefore, we conclude that on this issue, Owen has not met either the deficiency or the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In his third claim of ineffective assistance of appellate counsel, Owen argues that counsel was ineffective for failing to raise on direct appeal the trial court’s improper admission of McCoy’s testimony. Owen argues that the following statements destroyed his chance for a fair trial:

MCCOY: I went one step further and I asked him, I.says, “Well suppose you were found not guilty.” I says, “Who would be the winner then?” Mr. Owen said, “No one would be the winner.” And I said, “Then the hurting will start ■all over again.” And Mr. Owen was nodding his head in the affirmative.

Trial counsel objected to and moved to strike McCoy’s statement because the statement implied a propensity to commit crimes and kill people. Trial counsel then made a motion for a mistrial. The trial court denied both of the motions.

Owen’s specific argument is that counsel was ineffective for failing to argue on appeal that the admission'of the statement was unfairly prejudicial in violation of section 90.403, Florida Statutes (2001). Section 90.403 provides for the. exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” '§ 90.403, Fla. Stat. (2001). Although section 90.403 mandates the exclusion of unfairly prejudicial evidence, a large measure of discretion rests in the trial judge to determine whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See Walker v. State, 707 So.2d 300, 309 (Fla.1997).

Trial counsel preserved this issue by objecting to the admission of the above-mentioned evidence, thus appellate counsel could have raised this issue • on appeal. However, the fact that appellate counsel could have, but did not, challenge the admission of this testimony “does not constitute a deficiency falling below prevailing professional norms.” Davis v. Wain wright, 498 So.2d 857, 859 (Fla.1986). As this Court has noted, appellate counsel need not raise every conceivable claim, see Hardwick v. Hugger; 648 So.2d 100 (Fla.1994); appellate counsel could have reasonably concluded that this issue had no merit. In light of the record, Owen’s appellate counsel could not have effectively and convincingly argued against the admissibility of the above-mentioned testimony. See Ruffin v. Wainwright, 461 So.2d 109 (Fla.1984) (stating that if there is no chance of convincingly arguing a particular issue, appellate counsel’s failure to raise that issue is not a substantial and serious deficiency). Reviewing McCoy’s testimony as a whole and in context, it does not appear that the statement implied guilt or future' dangerousness; in fact, McCoy never referred to Owen hurting or continuing to hurt' • other people: Furthermore* McCoy’s statement is similar to other statements made' by Owen during his videotaped confession, which was admitted into ■ evidence. Accordingly, Owen has failed to satisfy the two-pronged Strickland test by failing to demónstrate (1) how his appellate counsel’s performance was substantially deficient under the circumstances; and (2) how any alleged deficiency was prejudicial to him. See 466 U.S. at 687,104 S.Ct. 2052.

Owen next argues appellate counsel failed to raise and argue on direct appeal that he was denied due process of law because the trial judge was biased toward the State and should have recused himself. Owen contends he was denied due process when the trial judge inquired into what effect granting a motion to suppress would have on the cases against him. Here, trial counsel failed to raise á claim of judicial bias, and thus this claim is procedurally barred. Appellate counsel cannot be deemed deficient for failing to raise a proeedurally barred issue.

Moreover, Owen’s claim is without merit. A review of the transcript of the suppression hearing shows that the trial judge made no statements which would cause Owen to believe that he would not receive a fair trial. The comments made by the judge are insufficient to show that Owen was denied the right to a fair and impartial tribunal. Cf. Porter v. State, 723 So.2d 191, 194 (Fla.1998) (finding comments made by the trial judge indicated that he was not impartial when he sentenced the defendant to death).

Additionally, Owen argues that appellate counsel was ineffective for failing to argue the sufficiency of the State’s evidence used, to prove the cold, calculated, and premeditated (CCP) aggravator. To establish CCP:

[T]he jury must first determine that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.

Jackson v. State, 648 So.2d 85, 89 (Fla. 1994). To prove this aggravator, the State must show a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill. See Rogers v. State, 511 So.2d 526, 533 (Fla.1987). The key to this aggravator is the plan. See Sweet v. State, 624 So.2d 1138 (Fla.1993). On direct appeal, this Court found that the trial court’s finding that the murder was committed in a cold, calculated, and premeditated manner was established. The Court noted:

Owen selected the victim, removed his own outer garments to prevent them from being soiled by blood, placed socks on his hands, broke into the home, closed and blocked the door to the children’s room, selected a hammer and knife from the kitchen, and bludgeoned the sleeping victim before strangling and sexually assaulting her.

Owen, 596 So.2d at 990. Since this claim was addressed and disposed of on direct appeal, appellate counsel cannot have been ineffective for failing to raise a meritless claim. See Happ v. Moore, 784 So.2d 1091, 1095 (Fla.2001).

Owen also claims appellate counsel was ineffective for failing to argue that the trial court did not properly consider all of the mitigation. This argument is merit-less, and we deny relief. We have stated that “[w]hen addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant.” Campbell v. State, 571 So.2d 415, 419 (Fla.1990), receded from on other grounds by Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). Here, the trial court in its sentencing order properly considered each mitigating factor raised by Owen. Owen claims that appellate counsel should have “argued that the trial court abused its discretion in failing to consider the 21 hours of video taped confessions which showed that Mr. Owen had mental health problems and attempted to seek treatment, and Mr. Owen’s cooperation with law enforcement.” It is unlikely that these factors could outweigh the strong aggravators in this case; thus, Owen has failed to meet Strickland’s prejudice prong. See 466 U.S. at 687, 104 S.Ct. 2052.

Owen also argues that Florida’s death penalty statute is unconstitutional under the United State’s Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury was not required to make specific factual findings as to aggravation and mitigation. Owen’s Appren-di claim must be considered in light of the Supreme Court’s recent decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which made Apprendi applicable to capital cases. See Bottoson v. Moore, 833 So.2d 693 (Fla.), cert denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002). In Bottoson, we rejected the type of constitutional challenge Owen presents in this case. We again reject this claim. Moreover, it should be noted that the trial court found as aggravating factors that Owen has been previously convicted of a violent felony and that the murder was committed during a burglary or sexual battery; both factors involve circumstances that were submitted to a jury and found to exist beyond a reasonable doubt. See § 921.141, Fla. Stat. (2001). Thus, habeas relief based on Apprendi/ Ring is hereby denied.

As his final claim, Owen argues that this Court erred by not appointing conflict-free counsel for his direct appeal. To establish a claim premised on an alleged conflict of interest:

[T]he defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance. A lawyer suffers from an actual conflict of interest when he or she “actively repre-sentes] conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.”

Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002) (citations omitted). Here, as the State points out, Owen fails to identify specific evidence in the record which shows that his interests were compromised. Owen only states “conflict existed because appellate counsel could not raise his own ineffectiveness and could not raise the fact that Owen had filed a bar complaint”; thus, Owen’s claim is insufficiently pled and relief is therefore denied.

CONCLUSION

Based on the foregoing, we affirm the trial court’s denial of postconviction relief and deny Owen s petition for writ of habe-as corpus.

It is so ordered.

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

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

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I concur in the majority opinion in all respects except for the discussion of Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 158 L.Ed.2d 556 (2002).

      . The trial judge found four aggravating circumstances: (1) the defendant had been previously convicted of a violent felony; (2) the murder was committed during a burglary or sexual battery; (3) the murder was especially heinous, atrocious, or cruel; and (4) the murder was cold, calculated, and premeditated. The Court considered the following claims made by the defense in mitigation: (1) Owen's mother died when he was very young; his alcoholic father committed suicide a year later; (2) Owen and his brother were shuffled from one foster home to another until his brother finally ran away and left him; (3) Owen was sexually and otherwise abused in the foster homes; (4) Owen’s mind “snapped” during the murder; and (5) Owen had enlisted twice in the Army and aspired to be a policeman.

      . The facts of the Slattery case are set forth fully in this Court’s opinion on direct appeal in that case. See Owen v. State, 560 So.2d 207 (Fla.1990).

      . Owen’s claims were as follows: (1) the trial court should have stayed the hearing pending completion of the retrial on the Slattery murder; (2) the court should have conducted a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), when Owen opted not to proceed with the evidentiary hearing; (3) trial counsel was ineffective and suffered a conflict of interest; (4) the instruction on the aggravating factor "heinous, atrocious, or cruel” (HAC) was improper under Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992); (5) the felony murder instruction was improper; (6) the "avoiding arrest” instruction was improper; (7) the "prior violent felony” instruction was improper; (8) the instruction on the "cold, calculated, and premeditated" factor (CCP) was improper; (9) details of prior violent felonies were improperly admitted during the penalty phase; (10) attorney Barry Krischer was ineffective during the suppression hearing; (11) the penalty phase instructions improperly shifted the burden of proof to the defendant; (12) the penalty phase jury was improperly instructed concerning its role in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (13) the prosecutor made inflammatory remarks during closing argument; (14) Owen should have been allowed to poll the jurors; (15) the trial court erred in failing to allow a change of venue; (16) Florida’s capital sentencing statute is unconstitutional; (17) the video of the crime scene was unduly prejudicial; and (18) the cumulative weight of errors deprived Owen of a fair trial.

      . Owen asks this Court to consider (1) whether the trial court erred by failing to grant Owen an evidentiary hearing on his claim that prior postconv.iction counsel was ineffective because of a conflict of interest; (2) whether the trial court should have granted Owen an evidentiary hearing on his claim that he received ineffective assistance of counsel during the- litigation of his initial motion for postconviction relief; (3) whether the trial court erred by finding that Owen's claim of actual innocence was procedurally barred; (4) whether the trial court erred in summarily denying Owen’s claim that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (5) whether the trial court's order denying Owen's pro se postconviction motion was inadequate because it did not contain record attachments or specify what information contained in the court file was considered by the trial court in reaching its decision.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Owen raises the following claims: (1) whether appellate counsel was ineffective for failing to raise and argue on direct appeal that Owen was denied a fair trial because of the admission into evidence of statements he made during plea negotiations with the State; (2) whether appellate counsel was ineffective for failing to raise and argue that the venire from which the jury was selected in Owen's trial was unconstitutional because it excluded African Americans; (3) whether appellate counsel was ineffective for failing to raise and argue on direct appeal that the trial court should have declared a mistrial or struck Officer Kevin McCoy's improper statement from the record; (4) whether appellate counsel was ineffective for failing to raise and argue on direct appeal that Owen was denied due process of law because the trial judge was biased toward the State and should have recused himself; (5) whether appellate counsel was ineffective for failing to raise and argue on direct appeal the trial court's denial of Owen’s jury instruction on the difference between sexual battery and vaginal penetration of a deceased individual killed prior to any sexual contact; (6) whether appellate counsel ineffectively raised and argued the sufficiency of the State’s evidence used to prove the ag-gravators and failed to argue that the trial court did not properly consider all of the mitigation in favor of Owen; (7) whether Owen's sentence on the noncapital cases is illegal because his offenses predated the effective date of the sentencing guidelines used by the trial court; (8) whether appellate counsel was ineffective for failing to cite controlling authority on the issue of whether Owen's confession was involuntary; (9) whether the Florida death penalty sentencing statute as applied is unconstitutional under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution; (10) whether Owen’s Eighth Amendment right against cruel and unusual punishment will be violated because he may be incompetent at the time of execution; and (11) whether this Court erred by not appointing conflict-free counsel for Owen's direct appeal.

      . The issue of the appropriate sentencing guidelines for the noncapital offenses is pending in the trial court on a 3.800 motion and will not be addressed here. Additionally, the issue of Owen's competency to be executed is not ripe for review at this time. See Fotopoulos v. State, 838 So.2d 1122 (Fla.2002); see also Fla. R.Crim. P. 3.811(c).

      . Section 90.410, Florida Statutes (2001), reads: "Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.” Florida Rule of Criminal Procedure 3.172 governs the acceptance of guilty or nolo contendere pleas.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .It appears that Owen is also attempting to relitigate the admissibility of his confession under the guise of an ineffective assistance of appellate counsel argument. Owen raised this argument on direct appeal. See Owen, 596 So.2d at 987. An ineffective assistance of appellate counsel argument cannot be used as a means of relitigating an issue previously considered. See Porter v. Dugger, 559 So.2d 201, 203 (Fla.1990). To the extent that Owen is attempting to reargue the admissibility of his confession, his claim is procedurally barred.

      . The Court had previously reversed two other cases on this issue at the time of More-land. See Craig v. State, 583 So.2d 1018 (Fla.1991); Amos v. State, 545 So.2d 1352 (Fla.1989).

      . Owen's trial in this case occurred in 1986 and the direct appeal opinion was issued by this Court in 1992.

      . Furthermore, this Court could not have concluded without the existence of record evidence to substantiate Owen’s Spencer claim that fundamental error occurred in this case. See Spencer, 545 So.2d at 1353-54.

      . In reviewing this claim, it appears that Owen may be challenging the admission of his confession into evidence. To the extent that he is attempting to do so, this Court has already ruled against Owen on this issue on direct appeal. See Owen, 596 So.2d at 988.

      . Owen also argues appellate counsel was ineffective for failing to cite other authority on the issue of the voluntariness of his confession. This Court addressed the voluntariness issue on direct appeal and will not revisit that claim in this habeas petition. We also addressed on direct appeal the sexual battery/live victim issue and will not revisit it in the guise of ineffective assistance of appellate counsel.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Charles R. DORNBACH and Suzanne K. Dornbach, Appellants, v. Louis F. HOLLEY and Janet K. Holley, Appellees.
    No. 2D01-4527.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    Amy S. Farrior and Mark P. Buell, of Sehropp, Buell & Elligett, P.A., Tampa, for Appellant.
    No appearance for Appellee.
    Jack Emory Farley, Lakeland, for Ami-cus Curiae State of Florida, Department of Children and Family Services.
   DAVIS, Judge.

Charles R. and Suzanne K. Dornbach challenge the circuit court’s final judgment entered in favor of Louis F. and Janet K. Holley that permanently enjoined the Dornbachs from allowing their residential real property to be used for the operation of a community residential home. We reverse.

The Dornbachs own residential real property in a subdivision known as Lake Thomas Woods. They leased their property to Res-Care Florida, Inc., for use as a community residential home pursuant to chapter 419 of the Florida Statutes. The group home was intended to house between four and six developmentally disabled adults. The Holleys, who also own residential real property in the same subdivision, objected to this use of the Dorn-bachs’ property. The Holleys filed a petition in the circuit court seeking injunctive relief, alleging that the group home use violated specific provisions of the subdivision’s restrictive covenants. After the Dornbachs filed their answer and affirmative defenses, both parties moved for summary judgment. Following a hearing, the trial court granted the Holleys’ motion for summary judgment, granting them a permanent injunction which prohibited the Dornbachs from using the property as a group home. The Dornbachs appeal the final judgment and permanent injunction.

The restrictive covenants of the subdivision at issue provide:

1. Each lot shall be used expressly and exclusively for single-family, private residence purposes.
2. No business activity shall be conducted or carried on in connection with the residential usage of any lot or parcel.

The Holleys alleged that the group home use violates both of these restrictions. The Dornbachs responded by denying that the use violated the restrictions and arguing that the enforcement of the restrictions is not only contrary to chapter 419, but such enforcement violates both Florida and federal law by discriminating against the disabled. Moreover, they contend that the restrictions are contrary to public policy as they attempt to do by private restriction what public ordinances and statutes cannot do. The trial court found that the group home use did, in fact, violate the restrictive covenants and enjoined the Dornbachs from allowing any use of the home other than as a single-family residence.

Chapter 419 provides for the establishment of community residential homes. Section 419.001(2), Florida Statutes (2000), specifies that a community residential home with six or fewer residents “shall be deemed a single-family unit and a noncommercial, residential use for the purpose of local laws and ordinances.” The legislature intended to protect such group homes from local zoning ordinances that would exclude them from the traditional single-family neighborhood. However, the Hol-leys argued that section 419.001(2) does not apply to private deed restrictions.

This court addressed this issue in Baldwin v. Nature’s Hideaway, Phase I-B Homeowners Association, Inc., 618 So.2d 1376 (Fla. 2d DCA 1993). In Baldwin, the trial court found that a neighborhood resident who allowed three unrelated elderly adults to live in the home under the adult foster care program violated the deed restriction that prohibited any use that may be or become a nuisance. The trial court found that the use did violate the restrictive covenant and entered an injunction prohibiting such use.

On review, this court reversed, interpreting the language of the covenant to mean that a showing must be made that the use was or might become a nuisance and that based on the record, there were still issues of fact that precluded the granting of summary judgment. However, the majority also opined: “We agree with the appellee that section 419.001(2) by its express terms does not apply to private deed restrictions, nor does it or Chapter 419 express a public policy of the State of Florida which overrides private deed restrictions.” Id. at 1377. In his concurrence, Judge Altenbernd suggested that this conclusion was not necessary to the holding of the court and after discussing the public policy issues, concluded: “I am not prepared to rule that trial courts lack the authority to refuse to honor such dubious restrictions under the public policies expressed in Chapter 419, Florida Statutes.” Id. at 1378. The trial court below relied on the Baldwin majority opinion in entering the injunctive relief. However, in Baldwin, the group home was to house elderly persons. Because the elderly are not included in the list of protected persons under the Federal Fair Housing Act Amendments of 1988 nor the Florida Fair Housing Act, Baldwin does not resolve the issue raised here.

At the summary judgment hearing and in their motion for rehearing, the Dorn-bachs argued that the enforcement of these restrictive covenants is contrary to the United States Fair Housing Amendments Act of 1988 (FHAA). This Act added handicapped persons to those protected from discrimination in buying and renting housing facilities. The Florida Legislature essentially codified the Federal Act when it enacted the Florida Fair Housing Act. See §§ 760.20-37, Fla. Stat. (2000). In language nearly identical to the FHAA, section 760.23(7)(b) provides that it is unlawful to discriminate in the rental of or to “otherwise make unavailable” a dwelling because of the handicap of any person intending to reside in the dwelling after it is rented. Further, discrimination is defined so as to include a “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” § 760.23(9)(b).

In considering the application of the Florida Fair Housing Act to the present situation, we find the application of the FHAA by the federal courts to be instructive and persuasive. In applying the terms of the FHAA, the federal courts have determined that one may be guilty of discrimination in any one of three ways. First, the Act prohibits intentional discriminatory conduct towards a handicapped person. See Martin v. Constance, 843 F.Supp. 1321 (E.D.Mo.1994). Second, the Act prohibits incidental discrimination, that is, an act that results in making property unavailable to a handicapped person. Id. Third, the Act prohibits an act that fails to make a reasonable accommodation that would allow a handicapped person the enjoyment of the chosen residence. See Advocacy Ctr. for Perss. with Disabilities, Inc. v. Woodlands Estates Ass’n, 192 F.Supp.2d 1344 (M.D.Fla.2002). We are persuaded that, given the similarity of language and purpose in the federal and the Florida legislation, this three-pronged approach applies equally to the Florida Fair Housing Act.

Accordingly, based on the record below, we conclude that the Holleys’ action to enforce the deed restriction is imper-missibly discriminatory. Their action was premised on the fact that the residence was to be a group home for developmentally delayed adults. Whether the Holleys’ action was motivated by a desire to prevent these disabled persons from living in the neighborhood or simply by their objection to any group home is not clear from the record. Therefore, it was error to decide the absence of intentional discrimination by summary judgment. However, the record does show that by enforcing the restriction, incidental discrimination results since the residence is made unavailable for the handicapped. See Rhodes v. Palmetto Pathway Homes, Inc., 303 S.C. 308, 400 S.E.2d 484 (1991). Finally, public policy as stated in section 419.001(2) and in section 393.062, Florida Statutes (2000), supports the premise that the group home is the functional equivalent of a single-family residential unit and as such does not pose any threat to the purpose justifying the deed restrictions at issue. Thus, to refuse to waive these restrictions is to refuse to offer a reasonable accommodation, which also amounts to discrimination as defined by statute. See Advocacy Ctr., 192 F.Supp.2d 1344.

Accordingly, the record shows that the enforcement of the restrictive covenants is discriminatory in at least two of the three ways identified in Martin, 843 F.Supp. 1321, and as such, is contrary to state and federal law. Therefore, the trial court erred in entering the final judgment and injunction. The final judgment is reversed, and the matter is remanded with instructions that the trial court should enter judgment in favor of the Dornbachs.

Reversed and remanded.

BLUE, C.J., and FULMER, J., concur.

      . "Handicap” is defined to include a person who has a developmental disability. § 760.22(7)(b).

      . Section 393.062, Florida Statutes (2000), provides, in part:
      The Legislature declares that the goal of this act, to improve the quality of life of all developmentally disabled persons by the development and implementation of community-based residential placements, services and treatment, cannot be met without ensuring the availability of community residential opportunities for developmentally disabled persons in the residential areas of this state.... The Legislature intends that such residences shall be considered and treated as a functional equivalent of a family unit and not as an institution, business, or boarding home....


author: PER CURIAM.

text:
    Jean Robert GAETAN, Appellant, v. GEICO INDEMNITY COMPANY, Appellee.
    No. 3D02-2016.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Rehearing Denied Sept. 17, 2003.
    Diane H. Tutt, and Sharon C. Degnan (Plantation), for appellant.
    Shutts & Bowen, Frank A. Zacherl, and Joey E. Schlosberg, and Colleen A. Hoey, Miami, for appellee.
    Before LEVY, GERSTEN, and • GREEN, JJ.
   PER CURIAM.

Affirmed. See Malu v. Security Nat’l Ins. Co., 848 So.2d 373, 2003 WL 21180173 (Fla. 4th DCA May 21, 2003); Dade County Police Benev. Ass’n, Inc. v. Metropolitan Dade County, 452 So.2d 6 (Fla. 3d DCA 1984).


text:
    GLOBAL TRADING AGENCY, INC., Appellant, v. CITY NATIONAL BANK CORPORATION, Appellee.
    No. 3D02-1369.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Rehearing Denied Sept. 17, 2003.
    Pablo E. Lense, Miami; Phillip D. Parrish, for appellant.
    Richard L. Lapidus, Miami, for appellee.
    Before LEVY, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Global Trading Agency, Inc., appeals a final summary judgment. We reverse because the record demonstrates that this case was not ripe for summary judgment disposition. See Anderson v. Mount Sinai Med. Ctr., 789 So.2d 546 (Fla. 3d DCA 2001). There are unresolved genuine issues of material fact whether the customer and the bank exercised ordinary care and whether the bank acted in a commercially reasonable manner.

Reversed and remanded for further proceedings.


text:
    Michael SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2164.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2003.
    Rehearing Denied Sept. 9, 2003.
    Michael Sutton, Arcadia, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. State, 529 So.2d 1250 (Fla. 5th DCA 1988).

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


text:
    STATE of Florida, Appellant, v. James WILLIAMS, Jr., Appellee.
    No. 1D02-946.
    District Court of Appeal of Florida, First District.
    July 21, 2003.

      Charlie Crist, Attorney General; Barbara J. Yates, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

In March 1997, Appellee James Williams, Jr., was convicted of two counts of sexual battery and one count of false imprisonment. Appellee was sentenced to concurrent sentences of 107.1 months on each of the sexual battery convictions and 60 months for false imprisonment. Appel-lee’s convictions and sentence were affirmed on direct appeal and his convictions became final on February 5, 1998. Williams v. State, 710 So.2d 556 (Fla. 1st DCA 1998). In April 2001, Appellee filed a motion pursuant to Fla. R.Crim. P. 3.800(a), arguing: (i) his sentence violated double jeopardy because there was an insufficient spatial and temporal break between acts of digital and penile penetration to sustain two separate sexual battery convictions, and (ii) it was error to assess 80 victim injury points when the two sexual battery offenses for which he was convicted involved only one victim.

The trial court granted Appellee’s motion. On resentencing, the trial court struck one count of sexual battery from his judgment and sentence and directed the corresponding points removed from the guideline scoresheet because of double jeopardy. The trial court also directed that the scoresheet reflect only 40 victim injury points because only one victim was involved, citing Hudson v. State, 765 So.2d 273 (Fla. 1st DCA 2000). Appellee was resentenced to 69.9 months in prison.

Appellant, the State of Florida, appeals the trial court’s orders granting Appellee’s 3.800 motion. The State argues that Ap-pellee’s double jeopardy claim is a claim against his conviction rather than sentence, and is therefore barred because he faded to bring it in a timely filed motion filed pursuant to Fla. R.Crim. P. 3.850. The State also argues that the trial court improperly subtracted 40 points from Ap-pellee’s scoresheet because Fla. R.Crim. P. 3.702(d)(5), in effect when Appellee committed the two sexual batteries, provides that victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims. We agree with the State on these issues and reverse.

I.

The trial court erred in considering Appellee’s motion pursuant to Rule 3.800 and in granting his motion to set aside one of his convictions for sexual battery. Appellee’s claim constitutes, in reality, a challenge to his convictions rather his sentence. See Robinson v. State, 816 So.2d 146 (Fla. 1st DCA 2002)(holding that appellant’s collateral attacks on double jeopardy grounds were time barred, citing Ferenc v. State, 563 So.2d 707 (Fla. 1st DCA 1990) and Gandy v. State, 560 So.2d 1363 (Fla. 1st DCA 1990)); see also McCraney v. Florida, 830 So.2d 262 (Fla. 5th DCA 2002)(holding that “double jeopardy challenges are not cognizable in a rule 3.800(a) proceeding because they are attacks on the underlying convictions, not the sentences”); Wiley v. State, 604 So.2d 6 (Fla. 1st DCA 1992)(same).

Because Rule 3.800 provides only an avenue for correcting, modifying, or reducing a sentence, appellee’s post-conviction challenge to his conviction should have been raised in a timely filed motion pursuant to Rule 3.850, which allows a defendant to attack either sentence or conviction. Because Appellee’s motion was filed more than two years after his convictions became final, we agree with the State that Appellee’s double jeopardy claim is time barred.

II.

In Jupiter v. State, 833 So.2d 169 (Fla. 1st DCA 2002)(en banc), review denied, 847 So.2d 977 (Fla.2003), this court receded from Hudson and held that victim injury points should be assessed for each injury even though the offenses involve a single victim. In Jupiter, the trial court, relying on Hudson as in this case, refused to assess victim injury points for distinct injuries sustained by a single victim as the result of Jupiter’s convictions for false imprisonment and third degree murder. This court ruled that the trial judge erred in failing to score victim injury points for injuries attributable to both the false imprisonment and the third-degree murder convictions and remanded to the trial court for resentencing. As in Jupiter, although the trial court correctly applied a prior decision of this court, we hold that victim injury points should be assessed for each injury even though the offenses involve a single victim. Accordingly, the trial court erred in striking 40 points from Appéllee’s sentencing guidelines scoresheet.

Therefore, we REVERSE the trial court’s orders and REMAND for resen-tencing with directions.

WEBSTER, PADOVANO and POLSTON, JJ., CONCUR.

      . Because the State's appeal of the trial judge’s initial ruling striking 40 points from Appellee's guideline scoresheet was pending at the time the court revisited William's second claim, the trial court considered Appel-lee's motion pursuant to Rule 3.800(b).

      . The State also argues that the time between the two acts of penetration was sufficient to establish two separate and distinct sexual batteries. Because we reverse on other grounds, we do not reach that issue.


author: COPE, J. GERSTEN, Judge

text:
    Luis M. GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-428.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    Rehearing Denied Sept. 17, 2003.
    Luis M. Gutierrez, for appellant.

      Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GERSTEN, JJ.
   COPE, J.

Luis M. Gutierrez appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, after an evidentiary hearing. We affirm in part and reverse in part.

Defendant-appellant Gutierrez was convicted of burglary which was affirmed on appeal. Gutierrez v. State, 767 So.2d 608 (Fla. 3d DCA 2000). He filed a postcon-viction motion claiming ineffective assistance of trial counsel for failure to present an alibi defense. The defendant supported the motion with his own affidavit and affidavits of the alibi witnesses. The defendant made certain other claims of ineffective assistance of trial counsel.

The trial court ordered an evidentiary hearing on the defendant’s claims. The defendant requested that counsel be appointed to assist him, but the request was denied. After the evidentiary hearing, the trial court denied the Rule 3.850 motion. The court also held the defendant in contempt and sentenced him to six months incarceration, concluding that he had been untruthful in his Rule 3.850 motion.

While reluctant to second guess the trial court, we conclude that counsel should have been appointed for the evidentiary hearing. It is difficult to see how there could be a fair presentation of the defendant’s claims, or how the attendance of the alleged alibi witnesses could be obtained, without the assistance of counsel. See Williams v. State, 472 So.2d 738, 740 (Fla.1985); Rivero v. State, 796 So.2d 633, 634 (Fla. 3d DCA 2001); Johnson v. State, 711 So.2d 112, 115 (Fla. 1st DCA 1998). “Though need for an evidentiary hearing does not automatically mandate the appointment of counsel, any doubt must be resolved in favor of the defendant.” Florence v. State, 754 So.2d 175, 176 (Fla. 1st DCA 2000) (citing Williams, 472 So.2d at 740).

One of the issues the trial court focused on was the defendant’s claim that the trial transcript in his case had been incomplete. Trial counsel testified at the evidentiary hearing that she had no knowledge of any such incompleteness. In reality, as reflected in the appellate briefs in the defendant’s direct appeal, there was a missing segment of the trial transcript owing to the court reporter’s inability to locate her notes regarding the defendant’s motion for judgment of acquittal. Had counsel been appointed, this issue could readily have been straightened out. As it was, it appears that this was one of the matters leading the court to the conclusion that the defendant had been untruthful.

We therefore reverse the Rule 3.850 order in part and remand for an evidentiary hearing with the assistance of counsel on the claims of alibi, ineffective assistance of trial counsel, and the claim of an ex parte contact regarding the motion. We reverse the contempt order and remand for a new hearing with the assistance of counsel. We do not express any view on the ultimate merits.

We concur with the trial court in denying relief on the remainder of the defendant’s claims. Returning to the issue of the incomplete transcript, the defendant is not entitled to any relief on that point. While there are cases in which a new trial must be ordered because an incomplete transcript precludes meaningful appellate review, see, e.g., Delap v. State, 350 So.2d 462 (Fla.1977), this is not such a case.

The court minutes reflected that a motion for judgment of acquittal (“JOA”) had been made. Gutierrez v. State, 767 So.2d 608, Corrected Initial Brief of Appellant at 10. Although a transcript of the JOA argument could not be prepared, id., the defendant’s appellate counsel argued as one of the points on appeal that the evidence was legally insufficient for conviction. Corrected Initial Brief at 22-32. In its answer brief, the State joined issue on the merits and did not make any argument for affirmance based on the absence of the transcript of the oral JOA argument. We therefore entirely agree with the trial court’s ultimate result in denying relief, both because the defendant was not harmed by the absence of the transcript segment, Pepitone v. State, 846 So.2d 640 (Fla. 2d DCA 2003); Velez v. State, 645 So.2d 42, 44 (Fla. 4th DCA 1994), and because the decisionmaking on this aspect of the appeal was made by appellate counsel, not trial counsel.

We also agree with the trial court that the defendant qualifies as a habitual offender and reject his arguments to the contrary. The 5-year time period described in the habitual offender statute applies only to the most recent predicate felony. § 775.084(l)(a)2.b., Fla. Stat. (1997). So long as one of the predicate offenses is within the five-year time frame, the other predicate felony may be outside the five-year period. Middleton v. State, 721 So.2d 792, 793 (Fla. 3d DCA 1998). Further, one of the predicate offenses is allowed to be a felony conviction for “a violation of s.893.13 relating to the purchase or the possession of a controlled substance.” § 775.084(l)(a)3., Fla. Stat. (1997); see Rollins v. State, 707 So.2d 823, 825 (Fla. 3d DCA 1998). Thus, the trial court correctly denied relief on the defendant’s claim that he does not qualify as a habitual offender.

We agree with the trial court in denying relief on the claim that trial counsel had a conflict of interest because she was married to a City of Miami police officer. This was a Miami-Dade County police case, not City of Miami case.

For the stated reasons, we affirm in part, reverse in part, and remand for further proceedings consistent herewith.

LEVY, J., concurs.

GERSTEN, Judge

(dissenting).

I respectfully dissent from the part of the majority opinion that reverses in part and remands for an evidentiary hearing with the assistance of counsel. In my view, the majority opinion opens the proverbial “Pandora’s Box” in the area of appointment of counsel in post-conviction proceedings, thus creating dangerous precedent for second-guessing our trial courts.

Although a jury found the defendant guilty of burglary, and although the trial court sentenced the defendant as a habitual felony offender to thirty years imprisonment, and although (as is the case with many convicted defendants) the defendant filed a motion for post-conviction relief raising a plethora of issues, and although each of the eight issues raised were found to be either improperly successive, barred, or conclusively refuted by the record — the majority still substitutes its judgment without foundation in the record.

As recently noted by this Court in Lee v. State, 847 So.2d 1142 (Fla. 3d DCA 2003), there is no automatic right to counsel in post-conviction proceedings, and it is the province of the trial court, not the appellate court, to evaluate whether factors exist which would require the appointment of counsel. See Graham v. State, 372 So.2d 1363 (Fla.1979); Rivero v. State, 796 So.2d 633 (Fla. 3d DCA 2001); Schneelock v. State, 665 So.2d 1063 (Fla. 4th DCA 1995).

This is a garden variety post-trial motion where the defendant raised non-complex issues that were clearly refuted by the record. Further, the trial court specifically found the defendant had lied during the hearing, and the defendant confessed to this crime. There was no evidence the defendant was unable to adequately present his arguments.

Although the majority draws a fact/value distinction in substituting its values for the trial court’s fact findings, clearly under these circumstances appointed counsel is not “essential to accomplish a fair and thorough presentation of the petitioner’s claims.” See Schneelock v. State, 665 So.2d at 1063. I would affirm the denial of the defendant’s motion for post conviction relief in all respects.

      . There had been a confession, but the defendant had three pending cases. The defense contended at trial that the confession actually related to another case, not this case.

      . The missing transcript segment was dealt with by appellate counsel, who was not trial counsel.

      . The defendant's claim regarding the transcript should have been presented here by petition alleging ineffective assistance of appellate counsel, see Fla. R.App. P. 9.141(c), since the applicable decisions regarding the missing transcript segment were made by appellate counsel. In the interest of economy, we reject the defendant's claim on this point on the merits and conclude there was no ineffectiveness of trial or appellate counsel as relates to the transcript. Pepitone; Velez.

      . The current offense date was July 9, 1998.

      . A fact/value distinction contrasts fact statements and value judgments. The former states anything as being true or false; the latter does not state a fact, but rather acquires meaning from emotions or feelings. Basically, this is the underlying principle of emotivist and prescriptivist proponents.


text:
    U.S. FIRE INSURANCE COMPANY, Appellant, v. SOVRAN CONSTRUCTION COMPANY, INC., et al, Appellee. U.S. Fire Insurance Company, Appellant, v. Jade East Towers Developers, et al, Appellee.
    Nos. 1D02-1590, 1D02-2823.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Rehearing Denied Sept. 17, 2003.

      Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando; Kevin F. Master-son and R. Scott Traweek of Janecky Newell, P.C., Mobile, Alabama; and Gary Khutorsky and Robert M. Klein of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, Miami, for Appellant U.S. Fire Insurance Company.
    Leo H. Meirose, Jr. of Meirose & Fris-cia, P.A., Tampa, for Appellee Sovran Construction Company, Inc.
    William G. Edwards of Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, for Appellee Jade East Towers Developers.
   PER CURIAM.

In these consolidated cases, the Jade East Towers Owners Association, Inc. (Association) obtained a judgment against appellees Sovran Construction Company, Inc. (Sovran) and Jade East Towers Developers (Developers) for damages resulting from construction defects and deficiencies in a condominium project in Destín, Florida. Before making the claims, the Association and individual unit owners had taken over control and occupancy of the condominium from Sovran and the Developers. In subsequent third-party actions by Sovran and the Developers against appellant U.S. Fire Insurance Company, the trial court ruled that a builder’s risk insurance policy, purchased from appellant by the Developers and effective during construction of the condominium project, must indemnify the Association for the claimed construction defects and deficiencies. The trial court determined that the builder’s risk policy was in effect a liability policy. In the trial court’s own words, “[TJhis court finds that the policy must cover, and does cover, the losses claimed against Sovran by the plaintiff in this case.” This was error. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161 (Fla.2003); Edward J. Gerrits, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 634 So.2d 712 (Fla. 3d DCA 1994).

Appellees rely on Dyson & Co. v. Flood Engineers, Architects, Planners, Inc., 523 So.2d 756 (Fla. 1st DCA 1988), and argue that the trial court reached the proper result. Appellees’ reliance on Dyson is misplaced, however, because that case involved a completely different situation — an insurer’s right to subrogation against a co-insured. The Florida Supreme Court has very recently said that a builder’s risk policy is not a liability policy: “Builder’s risk insurance is a type of property insurance coverage, not liability insurance or warranty coverage. The purpose of this type of insurance is to provide protection for fortuitous loss sustained during the construction of the building.” Swire, 845 So.2d at 165. Further, as the Third District explained in Gerrits, a builder’s risk policy is a first-party contract and does not indemnify a third party, such as a condominium association, for faulty workmanship. See Gerrits, 634 So.2d at 713. Accordingly, we REVERSE the judgment and REMAND with directions that judgment be entered in favor of appellant.

KAHN, WEBSTER, and DAVIS, JJ., concur.


author: WOLF, C.J.

text:
    Byron L. BELSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1812.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Rehearing Denied Sept. 12, 2003.
    Nancy A. Daniels, Public Defender; G. Kay Witt, Assistant Public Defender, Tallahassee, for appellant.

      Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Appellant, Byron Belser, appeals from a final order adjudicating him guilty of aiding and abetting an act of lewd or lascivious molestation against a person less than sixteen years of age. Appellant has raised two issues on appeal: (1) whether the trial court erred in denying his motion for judgment of acquittal, and (2) whether the trial court erred in denying his request to instruct the jury on the permissive lesser included offense of battery. We find no merit as to the first issue and affirm the trial court’s decision without discussion. As to the second issue, however, we find that the trial court erred in denying Appellant’s request for a battery instruction, and we reverse and remand for a new trial.

The fourteen-year-old victim, Y.Z., testified that under the cover of darkness two high school boys grabbed her by her arm and pushed her into a handicapped stall in the girl’s bathroom, wherein the boys proceeded to touch her breasts and genital area both under and through her clothes. Evidence was presented from which a trier of fact could find that although appellant may not have actually touched the victim, he was a willing participant in the crime.

During the charge conference, the defense requested the standard instruction on the permissive lesser included offense of battery and attempted battery. The trial court denied Belser’s request, stating that its reason for not including the battery instruction was lack of evidence to support that Belser actually touched the victim. The trial court erred in making this determination.

Even if the weight of the evidence is overwhelmingly in favor of the state’s charge, the defendant is entitled to an instruction on a lesser offense where the charging document and the evidence adduced at trial could support a conviction for the lesser offense. See, e.g., Hooper v. State, 476 So.2d 1253, 1256 (Fla.1985); Carruthers v. State, 636 So.2d 853, 856 (Fla. 1st DCA 1994). Dougherty v. State, 813 So.2d 217 (Fla. 2d DCA 2002); see also Wilson v. State, 749 So.2d 516 (Fla. 5th DCA 1999). In this case, the information charged Appellant with “unlawfully and intentionally touching ... a person less than 16 years of age,” or aiding and abetting said actions. The state theorized that Belser was guilty as an aider and abetter, and as such, he was equally culpable for any offenses committed by the principles. The state concedes that simple battery is a permissive lesser included offense, that unlawful touching was alleged in the information, and that evidence of battery was presented at trial to support such a finding. Thus, relevant law requires that the instruction on the permissive lesser included offense of battery should have been given to the jury when requested.

The state argues on appeal that Belser’s theory of defense at trial would have disproved the theory of simple battery. The state relies on the rationale in Keyes v. State, 804 So.2d 373 (Fla. 4th DCA 2001), which reasoned that under most circumstances a defendant cannot use alternative defenses of accident and self-defense because the “admission of avoidance” inherent in a claim of self-defense is inconsistent with a claim that the injuries resulted from an accident. Id. at 375 (citing Williams v. State, 588 So.2d 44, 45 (Fla. 1st DCA 1991)). However, the holding in Keyes lends support to the Appellant’s argument. The court in Keyes held that the defendant was permitted to argue both accidental touching and self-defense on a battery charge and that the state improperly told the jury that defendant’s self-defense theory was a legal admission to the charged battery. Keyes, 804 So.2d at 376. A defendant may argue inconsistent theories to the jury so long as the proof of one does not necessarily disprove the other. Id. at 375; Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998). The theories Belser proffered at trial are not mutually exclusive. There is no inconsistency in arguing that this defendant did not take part in the criminal act and all that occurred during the attack was the lesser offense of simple battery.

Further, the fact that preponderance of the evidence may have demonstrated lewd and lascivious molestation rather than simple battery does not vitiate the need of instructing on the lesser offense. In Henderson v. State, 370 So.2d 435, 437 (Fla. 1st DCA 1979), this court stated that the reasons why lesser included offense instruction must be given are the “jury pardon” concept and the long-established prohibition against allowing trial judges to make evidentiary determinations that properly lie within the province of the jury. This concept is equally applicable whether the defendant is the actual perpetrator or an aider and abetter. Here, the jury could have rejected the testimony of the state’s witnesses and decided based upon the evidence that Belser aided and abetted simple battery rather than lewd and lascivious molestation.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

LEWIS and POLSTON, JJ., concur.

      . The essential elements of battery are: (1) actually and intentionally touching or striking another person (2) against the will of the other. See § 784.03(l)(a)l, Fla. Stat. (2002).


text:
    PALAFRUGELL HOLDINGS, INC., a British Virgin Island Corporation, Appellant, v. Marwin S. CASSEL, Esq., individually and as partner in Broad and Cassel, Attorneys at Law, Marwin S. Cassel, P.A., individually and as partner in Broad and Cassel Attorneys at Law, Broad and Cassel Attorneys at Law, a Florida Partnership, and Broad and Cassel, P.A., a Florida Professional Association, Appellees.
    No. 3D99-1596.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Stephen M. Zukoff, Miami; Robert S. Glazier and Sarah Helen Sharp, Miami, for appellant.
    Kluger, Peretz, Kaplan & Berlin, P.A., and Todd A. Levine and Abbey L. Kaplan, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   REPUBLISHED OPINION

PER CURIAM.

On the court’s own motion, the opinion previously published at 825 So.2d 937 is republished in order to correct the scrivener’s error detailed below. See Washington v. State, 92 Fla. 740, 110 So. 259, 261 (1926); Beeman v. Island Breakers, 591 So.2d 1031 (Fla. 3d DCA 1991).

On page 989, in the right-hand column, the opinion reads as follows:

Resolution of PalafrugeU’s claims against B & C arising out of an alleged breach of fiduciary duty does not affect Hernandez’s rights because the rights between Palafrugell and Hernandez are “separate and distinct” from any rights between Palafrugell and Hernandez. See Great Southern Aircraft Corp. v. Kraus, 132 So.2d 608, 610 (Fla. 3d DCA 1961).

825 So.2d at 939.

The sentence is corrected to read as follows:

Resolution of Palafrugell’s claims against B & C arising out of an alleged breach of fiduciary duty does not affect Hernandez’s rights because the rights between Palafrugell and B & C are “separate and distinct” from any rights between Palafrugell and Hernandez. See Great Southern Aircraft Corp. v. Kraus, 132 So.2d 608, 610 (Fla. 3d DCA 1961).

Except for the above-stated correction, the opinion is otherwise unchanged.

It is so ordered.


text:
    MRO SOFTWARE, INC., Appellant, v. MIAMI-DADE COUNTY, etc., et al., Appellees.
    No. 3D03-1594.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing Denied Sept. 17, 2003.
    Greenberg Traurig and Elliot H. Scherker and Paul R. Lipton and Brenda K Supple and Charles M. Auslander, Miami, for appellant.
    Robert A. Ginsburg, Miami-Dade County Attorney and Hugo Benitez, Assistant County Attorney; Steel Hector & Davis and Jack C. Shawde and John D. Eaton, Miami, for appellees.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   PER CURIAM.

The order under review denying temporary injunctive relief is affirmed without prejudice. See Art. V, § 2(a), Fla. Const.; Fla.R.App.P. 9.040(c).


author: FLETCHER, Judge.

text:
    Lindy RESTAINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1701.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing Denied Sept. 17, 2003.

      Lindy Restaino, in proper person.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, for appellee.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   FLETCHER, Judge.

Lindy Restaino appeals the order of the trial court denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

In 1994, Restaino was arrested and charged with second-degree arson and burglary of an occupied structure. Rather than go to trial, Restaino entered an open plea and asked the court to grant probation to allow him to complete a drug treatment program. The court granted probation, but put Restaino on notice that he would serve probation as an habitual offender and would receive an enhanced sentence pursuant to section 775.084, Florida Statutes (1995) if he violated probation. Within the year, Restaino violated probation, and the court sentenced him to twenty years in prison. Restaino now challenges the legality of the enhanced sentence.

In Terry v. State, 808 So.2d 1249 (Fla.2002), the supreme court dealt with the principle that where a trial court determines a defendant to be an habitual offender but the court decides not to sentence the defendant as such, the court cannot, upon revocation of probation, re-sentence the defendant under the habitual offender statute. However, the court articulated an exception that if a defendant agrees to a hybrid split sentence as part of an otherwise valid plea agreement and the negotiated sentence does not exceed the statutory maximum the court may impose incarceration under the guidelines followed by probation as an habitual offender. Upon revocation of probation, the trial court may impose an habitual offender sentence. Such sentences, although not authorized by the habitual offender statute, are not illegal and therefore are permissible.

Here, the plea colloquy reveals a clear intention to sentence the defendant as an habitual offender. After a lengthy colloquy, the court agreed to probation but reserved the right to impose enhanced sentencing if Restaino violated probation, a condition to which Restaino agreed. The option to apply section 775.084, Florida Statutes (1995) upon revocation of probation thus became a condition of the plea agreement. Pursuant to this exception, Restaino’s original plea agreement is entirely proper.

The order of the trial court denying Restaino’s motion to correct illegal sentence is affirmed.


author: STONE, J. WARNER, J.,

text:
    Rufus STANCLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1455.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Rehearing Denied Oct. 7, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Stancle’s conviction for possession of a firearm by a convicted felon and carrying a concealed weapon. Stancle asserts that the court erred in overruling his objection to the prosecutor’s closing argument. He argues that the state implied that he had a burden of persuasion to prove his innocence.

The state’s primary witness, Officer Kelley, testified that he pulled up behind Stancle and another man walking in a residential neighborhood around 3:30 in the morning. The men turned and looked at the officer before Stancle walked around the side of a building. The officer followed Stancle and saw him reach his hand in the area of his waistband, pull out a dark object, drop it on the ground, and walk away. Officer Kelley then asked him to come to the police car and, after a back-up deputy arrived, walked over to the place where he saw Stancle drop the object. Kelley did not have to look around for it; he simply walked directly to where it was dropped and picked up a gun.

Stancle, who admitted to three prior felony convictions, testified to a very different account of the events. He denied he was with another man and said he was not walking away from the officer but toward another friend who had called him. He denied ever walking near the building from where the gun was retrieved. He said that Officer Kelley told him that if anything was found near the building, it belonged to him and that Officer Kelley left Stancle standing at the car, alone, while he searched the area, but the officer returned when the back-up officer arrived. Officer Kelley then searched the area a second time and returned with a gun. A defense witness, Cassandra Johnson, corroborated Stanele’s version of the events. A portion of her testimony, however, was impeached by inconsistent statements in her deposition.

The state’s case, and the closing argument, rested on the credibility of Officer Kelley. In the state’s rebuttal argument, the prosecutor made the following argument, which is the sole basis for the issue on appeal:

Use your common sense. What was that gun doing there if it wasn’t dropped by Rufus Stancle? Just laying out there for [the] next guy to come around, pick it up? What was it doing there? Is there any evidence to tell you anything other than it was there because Rufus Stancle dropped it?

The prosecutor’s comment was in response to Stancle’s testimony and the defense argument that:

The prosecutor will not be able to show you any physical evidence that Rufus Stancle actually handheld this gun, that he possessed it. His fingerprints are not going to be on that gun, ladies and gentlemen.... The only person who prosecutor will be able to put on the stand to say that Rufus Stancle dropped a gun, that Rufus Stancle made the statements, is one police officer, Officer Kelley. You will have the opportunity to judge his credibility. You will have the opportunity to tell if he is telling you the truth. Don’t forget throughout entire trial that burden lies entirely with the prosecutor. Entirely with Mr. Grosz. And he has to prove it to you beyond every reasonable doubt.

Defense counsel also asserted that Officer Kelley’s testimony was unreasonable, laughable, absurd, and directed the jury to use their common sense.

Clearly, it would be error for the state to comment on a defendant’s failure to produce evidence. Whittaker v. State, 770 So.2d 737, 739 (Fla. 4th DCA 2000).

We have considered Shelton v. State, 654 So.2d 1295 (Fla. 4th DCA 1995), and deem it distinguishable. There, the defendant was convicted of selling cocaine. An undercover police officer testified that he bought a rock of cocaine from the defendant with a marked $20 bill. A search of the appellant only a minute after the sale did not turn up any drugs or the $20 bill. See id. at 1296. The defendant did not present any evidence at trial. See id. During closing argument, the prosecutor stated, “is there anything showing that [the defendant] didn’t make that sale?” Id. This court reversed the defendant’s conviction, agreeing with the defendant that the prosecutor’s statement was improper because “it could have misled the jury on the burden <3f proof.” Id. at 1297.

Here, we deem the prosecutor’s response as a permissible comment on the evidence and a fair reply to the defense implication that Officer Kelley planted the gun. See Mitchell v. State, 771 So.2d 596, 597 (Fla. 3d DCA 2000).

A prosecutor’s argument should be examined in the context in which it is made. McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001); Nelson v. State, 416 So.2d 899, 900 (Fla. 2d DCA 1982). This is particularly so where invited by the nature of the defense. See State v. Shepevd, 479 So.2d 106, 107 (Fla.1985); Austin v. State, 700 So.2d 1233, 1234 (Fla. 4th DCA 1997); Whitfield v. State, 479 So.2d 208, 216 (Fla. 4th DCA 1985).

The trial court did not abuse its discretion in recognizing the prosecutor’s statement as a “common sense” argument in response to Stancle’s and his witness’ testimony challenging the testimony of the officer. The state fairly interpreted the defense as implying that the officer had planted the gun and, in response, the prosecutor was asking the jury to look at the facts, arguing that the evidence did not support such a conclusion. In the context of the entirety of the arguments, we do not read into the comment the suggestion that Stancle had a burden to prove his innocence. Rather, the prosecutor’s argument was simply pointing out that it was not reasonable to believe that a gun just happened to be lying on the ground in the same place that the officer saw Stancle drop the object.

Therefore, the judgment and sentence are affirmed.

MAY, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I dissent, as I do not think the comment was a “fair comment on the testimony” or a “fair response to the defense position.” Mitchell, 771 So.2d at 597. The defense never suggested directly or by implication that someone else left the gun by the building. Officer Kelley’s power of observation was challenged, but the defense did not ever allege that he had planted the gun. By asking what evidence existed as to how the gun got there, the state’s comment could mislead the jury as to which party had the burden of proof to produce such evidence. In Whittaker, we held “[i]t is error for the state to comment on the defendant’s failure to produce evidence to refute an element of the crime.” 770 So.2d at 739 (citing Jackson v. State, 575 So.2d 181 (Fla.1991)). Doing so “misleads the jury into thinking that the defendant bears the burden of proving his innocence.” Id. I think the state’s comment constituted a similar error.

This was a close case with diametrically opposing testimony. During deliberations the jury asked many questions and deadlocked on the charge of carrying a concealed weapon. Thus, suggesting to the jury that there was some duty to bring forth evidence that someone else put the gun behind the building could have influenced it to decide against appellant because he did not produce such evidence. I cannot conclude that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).


text:
    Genevieve HARDWICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-936.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Rehearing Denied Oct. 1, 2003.
    Genevieve Hardwick, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a legally sufficient motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), to address any alleged entitlement to additional jail credit. See Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998) (citing State v. Mancino, 714 So.2d 429, 433 (Fla.1998)).

GROSS, HAZOURI and MAY, JJ., concur.


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. Josias PIERRE, Jr., Appellee.
    No. 5D03-1184.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
    Robert Wesley, Public Defender, and Jennifer MeLander Davis, Assistant Public Defender, Orlando, for Appellee.
   TORPY, J.

In this driving under .the influence (DUI) case, the county court has certified to us a question of statutory interpretation involving the “Implied Consent Law,” section 316.1932(l)(a) 1., Florida Statutes (2002). Relying upon the opinion of our sister court in State v. Bodden, 2002 WL 31421575, — So.2d — (Fla. 2d DCA 2002), the county court suppressed the results of Appellee’s urine test, which revealed the presence of controlled substances in his urine. Because we disagree with Bodden’s determination that the statute is ambiguous, we reverse the order suppressing the test results and remand this action for further proceedings.

Appellee was arrested for DUI. After he was informed that he must submit to testing of his breath and urine or his driving privilege would be suspended, Appellee complied. The breath test revealed a blood alcohol level below the legal limit, but the urine test showed the presence of cocaine, marijuana metabolites and other controlled substances. Determining that it was bound by Bodden, even though disagreeing with its holding, the county court granted a pretrial motion in limine that suppressed the urine test results, but it certified to us the following question as one involving great public importance:

Can the state introduce a defendant’s urine test results of a urine sample obtained by law enforcement pursuant to Florida statute section 316.1932(l)(a), Florida’s implied consent law, by establishing the traditional Bender and Robertson predicates, where the Florida Department of Law Enforcement has not promulgated rules governing the urine testing?

We have jurisdiction. Art. Y, § 4(b)(1), Fla. Const. § 35.065, Fla. Stat. (2002), Fla. R.App. P. 9.160. We restate the question as follows:

Does section 316.1932, Florida Statutes (2002), require that urine testing procedures first be “approved” by the Florida Department of Law Enforcement before they may be administered to persons who are suspected of DUI?

We answer the question in the negative. In so doing, we certify that our decision directly conflicts with Bodden.

Our decision today turns on whether an ambiguity exists in the following portion of section 316.1932(l)(a) 1., Florida Statutes (2002), commonly referred to as the “Implied Consent Law:”

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances ....

(emphasis supplied). Appellee urges that this statute is unclear as to whether the urine testing procedures must be “approved” by the appropriate administrative agency, the Florida Department of Law Enforcement (“FDLE”), just as the procedures for breath and blood tests are approved. The state admits that the FDLE has not promulgated procedures for urine testing but contends that “approval” is not required by the unambiguous language of the statute. We agree.

We are urged to take either of two paths leading to the conclusion that the statute is ambiguous. The first involves the fact that “chemical test” is not defined and could arguably include urine tests. If so, the phrase “approved chemical test” would include urine tests and require that they too be approved. The language of the statute, however, clearly negates this possibility because it makes a distinction between the two tests in numerous places throughout the statute, evincing that urine tests are not merely subsets of “chemical tests.” For example, the statute states: “The refusal to submit to a chemical or physical breath test or to a urine test ... is admissible into evidence ... § 316.1932(l)(a)l., Fla. Stat. (2002). (emphasis added). If urine tests were intended to fall within the definition of chemical tests, the emphasized language would be superfluous. See Pinellas County v. Woolley, 189 So.2d 217 (Fla. 2d DCA 1966) (words in statute not to be construed as superfluous if reasonable construction exists that gives effect to all words). We conclude, therefore, that no ambiguity exists by the failure to define “chemical tests.”

The second possible ambiguity is illustrated by Appellee’s purported quote to section 316.1932(l)(a) 1., contained within his brief, which states: “approved ... urine test[s] for the purpose of detecting the presence of chemical substances.... ” Appellee suggests by this quote that the adjective “approved” is intended to modify “urine test,” despite the fact that the three dots represent the omission of over thirty words and three commas that separate the word “approved” from the words “urine test.” To accept Appellee’s strained construction we would have to ignore the statute’s plain language' and improperly attribute to the legislature a gross grammatical faux pas. See State v. Dugan, 686 So.2d 1210 (Fla.1996) (meaning of statute determined from plain meaning of words used). Moreover, to construe the statute in this manner would require that we ignore the remainder of the statute, which, taken in its entirety, clearly conveys a contrary intent. See St. Mary’s Hospital v. Phillipe, 769 So.2d 961 (Fla.2000) (statute must be construed in its entirety and as a whole). Nowhere else within the statute is any reference made to the “approval” of urine tests. Further, the specific grant of authority given to the FDLE to implement rules for blood and breath testing is devoid of any reference to urine testing. § 316.1932(l)(a) 2., Fla. Stat. (2002). Unlike blood and breath testing, where the legislature’s only mention of procedures is the grant of authority to FDLE to implement them, the procedures for urine testing are specifically set forth in the statute:

The urine test shall be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved.

§ 316.1932(l)(a) 1., Fla. Stat. (2002). Taken as a whole, therefore, the statute evinces an unambiguous intent that urine tests need not be approved. The legislature apparently concluded that its own basic guidelines were sufficient for this rather simple test, but that more comprehensive procedures should be developed for blood testing, which is more intrusive, and breath testing, which is more complex, than urine testing. We conclude, therefore, that no ambiguity exists and that principles of construction need not be utilized. State v. Bradford, 787 So.2d 811 (Fla.2001).

REVERSED and REMANDED, conflict CERTIFIED.

SHARP, W., and GRIFFIN, JJ„ concur.

      . Nothing herein, of course, indicates any intent by the legislature to supersede the requirements for admission of “scientific evidence” set forth in the evidence code.

      . Even if an ambiguity does exist, we are not convinced that section 775.021, Florida Statutes, which codifies the rule of "lenity,” necessarily applies because section 316.1932 is not a statute that defines an "offense.” Moreover, the rule of lenity is not applicable where the interpretation urged by a defendant is not reasonable. Nettles v. State, 850 So.2d 487 (Fla.2003).