author: QUINCE, J. PARIENTE, J., WELLS, J.,

text:
    Edward B. CAUFIELD, et al., Petitioners, v. Gino CANTELE, et al., Respondents.
    No. SC99-95.
    Supreme Court of Florida.
    Dec. 19, 2002.

      Robert Bruce Snow, Brooksville, FL, for Petitioners.
    Donald R. Peyton of Peyton Law Firm, P.A., New Port Richey, FL, for Respondents.
    Jon H. Anderson and Ralph Artigliere of Anderson & Artigliere, P.A., Lakeland, FL, for Academy of Florida Trial Lawyers, Amicus Curiae.
   QUINCE, J.

We have for review the Fifth District Court of Appeal’s opinion in Caufield v. Cantele, 745 So.2d 431 (Fla. 5th DCA 1999), which certified conflict with Green Tree Vendor Services Corp. v. Lisi, 732 So.2d 422 (Fla. 1st DCA 1999); Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So.2d 959 (Fla. 4th DCA), review denied, 725 So.2d 1107 (Fla.1998); O.A.G. Corp. v. Britamco Underwriters Inc., 707 So.2d 785 (Fla. 3d DCA 1998); Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998); and Barry A. Cohen, P.A. v. LaTorre, 595 So.2d 1076 (Fla. 2d DCA 1992), on the issue of whether an order concerning attorney’s fees is an appealable order. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the decision below in part and quash it in part, and specifically hold: (1) plenary appeal is the proper method for a district court to review a trial court’s determination of attorney’s fees and costs after a voluntary dismissal; (2) the contractual or statutory basis of a claim for attorney’s fees does not need to be specifically pled and failure to specifically plead the basis for fees does not result in a waiver of the claim; and (3) a suit for damages for fraudulent misrepresentation concerning property purchased pursuant to a contract may constitute litigation “arising out of’ the contract where the parties have intended such litigation to be covered by an attorney’s fees provision included in the contract. Therefore, we remand this case for proceedings consistent with our holdings.

FACTUAL AND PROCEDURAL BACKGROUND

Edward and Rose Caufield (the Cau-flelds) entered into a contract with Gino and Armando Cántele (the Cánteles) to sell to the Cánteles a mobile home park located in Hernando County, Florida. Closing on the sale occurred and title was passed to the Cánteles in 1993. In 1995, the Cánteles filed a complaint in the Circuit Court for the Fifth Judicial Circuit, alleging concealment of defects and fraudulent misrepresentations as to the condition of a sewer plant located on the property. The Caufields filed a motion to dismiss and a motion to strike the complaint, claiming that the complaint alleged fraud and breach of contract in a single count. The Caufields included a general prayer for attorney’s fees in the wherefore clauses of both motions. In 1996, the trial court entered an order resolving both motions by treating the complaint as one which asserted a single claim for intentional misrepresentation. In their responsive pleading, the Cau-fields included another general prayer for attorney’s fees. After the Cánteles’ initial counsel withdrew and new counsel failed to appear at a pretrial conference, the Cánteles voluntarily dismissed their complaint.

The contract contained a provision which entitled the prevailing party to costs and attorney’s fees in connection with any litigation “arising out of’ the contract. Pursuant to the provision, the Caufields filed a motion in the trial court for costs and attorney’s fees. The trial court entered an order denying the Caufields’ request for attorney’s fees for two reasons. First, the trial court concluded that the Caufields had failed to plead for attorney’s fees as required by Stockman v. Downs, 573 So.2d 835 (Fla.1991). Second, the court concluded that because the cause of action was for the tort of intentional misrepresentation, the litigation was not based on the contract and, thus, the litigation did not “arise out of’ the contract.

The Caufields sought review of the trial court’s order by plenary appeal in the Fifth District Court of Appeal. In addition to affirming the trial court’s determination that the Caufields did not properly plead for attorney’s fees and that the litigation did not arise out of the contract, the Fifth District addressed, sua sponte, the jurisdictional issue of whether plenary appeal was the proper method of review.

The Fifth District held that a judgment denying attorney’s fees entered after a voluntary dismissal was properly reviewed by plenary appeal. As to this holding, the Fifth District certified conflict with decisions of other district courts, which have held that under this Court’s decision in Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968), a petition for certiorari is the proper method for reviewing orders denying or granting attorney’s fees after a voluntary dismissal. See Green Tree Vendor Services Corp. v. Lisi, 732 So.2d 422 (Fla. 1st DCA 1999); Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So.2d 959 (Fla. 4th DCA), review denied, 725 So.2d 1107 (Fla.1998); O.A.G. Corp. v. Britamco Underwriters Inc., 707 So.2d 785 (Fla. 3d DCA 1998); Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998); Barry A. Cohen, P.A. v. LaTorre, 595 So.2d 1076 (Fla. 2d DCA 1992). The Caufields seek discretionary review of the Fifth District’s decision in Canfield v. Cantele, 745 So.2d 431 (Fla. 5th DCA 1999), based. on certified conflict.

DISCUSSION

The Fifth District certified conflict as to whether district courts may review, by plenary appeal, a trial court’s order determining attorney’s fees and costs after voluntary dismissal of a complaint. We recognize that district courts are courts of limited jurisdiction and may only exercise the jurisdiction conferred upon them by the Florida Constitution. See Clement v. Aztec Sales, Inc., 283 So.2d 68, 71 (Fla. 4th DCA 1973); Warren v. State, 174 So.2d 429, 430 (Fla. 1st DCA 1965). Because we find that the Fifth District properly exercised the jurisdiction conferred upon it by the Florida Constitution, we approve the decision below on this issue.

In Chatlos v. City of Hallandale, this Court discussed the ways in which a cost determination could be reviewed on plenary appeal and certiorari by the district courts:

If the cost determination is entered in the final judgment or is made subsequent to the rendition of the final judgment but prior to timely appeal from that judgment, plenary appeal from the final judgment ... will bring the cost order to the appellate court.... Finally, in appropriate circumstances — as in the instant case wherein the order was entered following a non-final and unappealable voluntary nonsuit — writ of certiora-ri may lie as a means of securing review.

Chatlos, 220 So.2d at 354 (quoting Craft v. Clarembeaux, 162 So.2d 325, 327 (Fla. 2d DCA 1964)). Cases holding that a petition for certiorari is the appropriate method for a district court to review a cost determination entered after a voluntary dismissal have followed our language in Chatlos. See O.A.G. Corp., 707 So.2d at 786; Barry A. Cohen, P.A., 595 So.2d at 1077. Thus, cases following Chatios have found that the district courts do not have jurisdiction to review such orders by plenary appeal. See O.A.G. Corp., 707 So.2d at 786; Sholkoff v. Boca Raton Community Hospital, Inc., 693 So.2d 1114, 1115 (Fla. 4th DCA 1997). Because the Fifth District certified conflict in this issue, we address the constitutional jurisdiction of the district courts in deciding this matter.

Under the Florida Constitution, district courts have jurisdiction to hear plenary appeals, as a matter of right, only from final judgments and orders of the trial courts. See art. V, § 4(b)(1), Fla. Const. Thus, district courts may only review a cost determination by plenary appeal if that determination is a final judgment or order of the trial court. Therefore, in the instant case, the issue of whether the Fifth District had jurisdiction to review the trial court’s order on plenary appeal turns on whether an order determining costs after a voluntary dismissal is final.

A final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary. See Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989); Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980). Courts that have held that orders merely determining costs, especially when entered after a voluntary dismissal, are nonfinal and nonappealable have done so for three reasons. See Sholkoff, 693 So.2d at 1115; Craft, 162 So.2d at 326. First, such orders are incident to the merits of the case, and', as such, are not final judgments in the sense of final judgments on the merits. See Gray v. Mann, 47 Fla. 162, 37 So. 161 (1904); Hall v. Patterson, 45 Fla. 353, 33 So. 982 (1903). Second, where a voluntary dismissal is granted and the court does not award the defendant costs, if the plaintiff sues the defendant again on the same claim, rule 1.420(d) expressly provides that “the court shall make such order for the payment of the costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” Fla. R. Civ. P. 1.420(d). See Sholkoff, 693 So.2d at 1115. Third, when a party has previously paid costs after a voluntary dismissal, if that party subsequently prevails in the same action, then such a party may recover at least some of the costs previously paid. See Rose Printing Co. v. Wilson, 602 So.2d 600, 604 (Fla. 1st DCA 1992), approved, 624 So.2d 257 (Fla.1993); McArthur Dairy, Inc. v. Guillen, 470 So .2d 747, 749 (Fla. 3d DCA 1985).

However, we are not persuaded by any of these reasons. The mere fact that an action for costs and fees is incident to the merits of the original case does not preclude an order on these issues from being a final decision. See Clearwater Federal Savings & Loan Ass’n v. Sampson, 336 So.2d 78, 79 (Fla.1976). In Sampson we held that “[w]here an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment.” Id. In the instant case, although there is no final adjudication on the merits, the voluntary dismissal ended the litigation leaving only the Caufields’ motion for fees and costs to be determined. The trial court’s order denying the Caufields’ request for fees, entered September 28, 1998, disposed of the Caufields’ motion and no further judicial labor was required in the case. Therefore, the trial court’s order denying the Caufields’ request for fees, though incident to the merits, was a final and appealable order.

Moreover, the additional judicial action in the second and third scenarios is prompted by a subsequent commencement of litigation by one of the parties. Under rule 1.420(d), after a voluntary dismissal, costs are to be assessed and a judgment entered for costs in that action. See Fla. R. Civ. P. 1.420(d). Costs are not assessed by the court in which subsequent litigation is commenced; rather, rule 1.420(d) provides that costs are to be assessed immediately after a dismissal is entered by the court issuing the voluntary dismissal and that any subsequent lawsuit on the same claim must be stayed by the second court until all of the costs awarded in the initial lawsuit are fully paid. See City of Hallandale v. Chatlos, 236 So.2d 761, 763 (Fla. 1970) (construing rule 1.420(d) “to mean that costs, including attorney’s fees, are to be assessed and judgment entered for them in the same action which is the subject of voluntary dismissal”); McKelvey v. Kismet, Inc., 430 So.2d 919, 921-22 (Fla. 3d DCA 1983). Thus, in the instant case, no more judicial labor is required of the initial court to enforce its denial of costs. Furthermore, if the prevailing party in subsequent litigation is awarded costs for the initially dismissed action or is allowed to recover costs previously paid, these matters would be appropriately contained in a final judgment of the second court and the initial cost determination need not be altered. We are not persuaded that the trial court’s order denying the Caufields’ request for costs and fees, entered after voluntary dismissal of the cause against them, is a nonfinal order.

The Fifth District reasoned that the differences between plenary appeal and certiorari review support the propriety of reviewing such decisions via plenary appeal. See Canfield, 745 So.2d at 433. For example, the time in which to seek review can vary for certiorari review and plenary appeal. Also, while certiorari review is discretionary, plenary appeal review is a matter of right. Compare Fla. R.App. P. 9.030(b)(1) with Fla. RApp. P. 9.030(b)(2). As the Fifth District noted, reviewing such orders by plenary appeal promotes “symmetry in the law ... since that is how attorney’s fee awards or denials after a final judgment are reviewed.” 745 So.2d at 435. We agree that, regardless of whether a request for costs and fees is granted or denied, the parties should not have to await the speculative filing of a subsequent lawsuit for finality of the initial trial court determination on this issue. Therefore, we conclude that an order determining costs and fees after a voluntary dismissal is a final and appeal-able order.

In the instant case, the Fifth District reviewed the trial court’s order determining costs and fees in the voluntarily dismissed action by plenary appeal. District courts have constitutional jurisdiction to review final judgments of the trial courts by plenary appeal. See art. V, § 4(b)(1), Fla. Const. Because the triál court’s determination of costs and fees was final, we hold that the Fifth District properly exercised its constitutionally conferred jurisdiction by reviewing the trial court’s order by plenary appeal. Therefore, we approve the Fifth District’s decision on this issue and hold that the proper method for review of a determination of costs after a voluntary dismissal is by plenary appeal. Accordingly, we recede from decisions which have held that an order determining costs after a voluntary dismissal is a nonfi-nal and unappealable order. See Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968).

We now turn to the remaining issues raised in this review proceeding. The Fifth District held that the Caufields’ requests for attorney’s fees failed to meet the standard for claiming attorney’s fees set forth in Stockman v. Downs, 573 So.2d 835 (Fla.1991). In Stockman, this court held “that a claim for attorney’s fees, whether based on statute or contract, must be pled.” Id. at 837. This Court stated that the fundamental concern of the pleading requirement is notice. See 573 So.2d at 837. By pleading a claim to attorney’s fees, a party notifies the opposing party and prevents unfair surprise. Moreover, this court noted the important role that the existence or nonexistence of a claim for attorney’s fees may play in a case. See id. “For example, the potential that one may be required to pay an opposing party’s attorney’s fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle.” Id. Therefore, we held that a claim for attorney’s fees must be pled; and, if not pled, a claim for attorney’s fees is waived. See id. at 837-38.

In the instant case, however, the Fifth District held that Stockman actually requires that a party specifically plead the basis for the entitlement to fees. See Caufield, 745 So.2d at 435. The Fifth District relied on United Pacific Insurance Co. v. Berryhill, 620 So.2d 1077 (Fla. 5th DCA 1993), where it had previously held that Stockman requires a party to plead the “correct entitlement” to attorney’s fees. The Fifth District also relied on a decision from the Third District which held that a general claim for attorney’s fees will not satisfy this Court’s requirement in Stockman. See Dealers Ins. Co. v. Haidco Investment Enterprises, Inc., 638 So.2d 127, 129 (Fla. 3d DCA 1994) (holding that “the requesting party must plead the statutory or contractual basis on which that party seeks attorney’s fees”).

However, this Court’s holding in Stock-man does not expressly require a specific pleading of the statutory or contractual basis of a claim for attorney’s fees. See Stockman, 573 So.2d at 837. In Stockman, we reasoned that merely pleading a claim for attorney’s fees is sufficient to notify the opposing party and allow it to consider the claim in a decision on whether to proceed. Therefore, we decline to extend our holding in Stockman to impose a stricter requirement for pleading a claim for attorney’s fees. We hold that the specific-statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim. Accordingly, we quash the Fifth District’s decision in the instant case, and direct that the case be remanded to the trial court for consideration of the Caufields’ request for attorney’s fees and costs.

Lastly, we address the Fifth District’s determination that the Caufields were not entitled to attorney’s fees under a prevailing-party provision in their contract with the Cánteles. See Canfield, 745 So.2d at 437. The Fifth District stated that attorney’s fees may only be awarded under a contractual provision where the parties to the contract clearly manifest their intention that attorney’s fees cover the specific situation for which fees are claimed. See id. at 436. The attorney’s fees provision of the instant contract allowed fees to be awarded to the prevailing party in connection with any litigation arising out of the contract. The Fifth District reasoned that a cause of action for “fraudulent misrepresentation made orally or external to a contract, concerning property purchased pursuant to the contract, is not litigation arising out of the contract.” Id. at 437. We disagree with this reasoning and find that claims of fraudulent misrepresentation concerning the subject matter of the contract do “arise out of the contract.”

The Fifth District relied on its decisions in Hopps v. Smith, 520 So.2d 673 (Fla. 5th DCA), review denied, 529 So.2d 695 (Fla. 1988), and Dickson v. Dunn, 399 So.2d 447 (Fla. 5th DCA 1981), in reaching the decision in this case. See Canfield, 745 So.2d at 436. In Dickson, the court found that buyers suing for misrepresentation of improvements to realty could not recover attorney’s fees based on a clause in the contract providing for such fees to the prevailing party as a result of a suit arising out of the contract. The Fifth District reasoned that based on Chanin v. Chevrolet Motor Co., 89 F.2d 889, 891 (7th Cir.1937), the subject litigation arose out of a claim of misrepresentation in the inducement of the contract, not the contract itself. Likewise, in Hopps, relying on Dickson, the Fifth District again held a misrepresentation claim did not arise out of the contract for sale of the property. There, the court stressed accord with this reasoning in other Florida district courts. See Location 100, Inc. v. Gould S.E.L. Computer Systems, Inc., 517 So.2d 700 (Fla. 4th DCA 1987) (finding in a breach of contract suit where vendor did not ensure ingress or egress to property that buyer could not recover attorney’s fees stemming from a fraud counterclaim because such claim is one in tort and not in contract); Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360 (Fla. 3d DCA 1985) (finding in an action to force vendor to specifically perform that the prevailing party was not entitled to attorney’s fees for first three counts of complaint which were based on fraud).

The Caufields and the Florida Academy of Trial Lawyers argue that the Fifth District’s decision in this case as well as its earlier cases sets a poor policy which denies persons access to the Florida courts. They argue that if only contract causes of action and not tort causes of action can “arise out of’ a contract, then courts will ignore the actual intent of the parties. The Caufields rely on this court’s opinion in Katz v. Van Der Noord, 546 So.2d 1047 (Fla.1989), and the Fourth District’s decision in Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998), in support of their position that a tort cause of action can arise out of the contract.

In Katz, this Court approved the award of attorney’s fees under a prevailing party provision of a contract which contained the “arising out of the contract” language even though the action involved recision of the contract. Relying on Katz, the Fourth District in Kelly opined:

Although Katz spoke of an attorney’s fee provision in the context of a recision action, its rationale is equally applicable to an action at law for fraudulent misrepresentation. The same deceptive conduct might justify relief under either cause of action. If the attorney’s fee provision of a contract is to be construed objectively, it would seem that “litigation arising out of this Contract” should include, in addition to breaches and nonperformance of the contract, those situations where the party was fraudulently induced into entering the contract, because such conduct is morally more repugnant that a simple breach. The distinction drawn by Dickson and Location 100 — that a misrepresentation inducing a contract does not “arise” out of the contract — is at odds with the concept of justice that underlies the holding in Katz.

705 So.2d at 672-73.

Foreign courts have held that actions for fraudulent concealment or misrepresentation in connection with a contract fall within attorney’s fee provisions of the contract. 3250 Wilshire Blvd. Bldg. v. W.R. Grace & Co., 990 F.2d 487 (9th Cir.1993); Childers v. Edwards, 48 Cal.App.4th 1544, 56 Cal.Rptr.2d 328, 331 (1996); Xuereb v. Marcus & Millichap, Inc., 3 Cal.App.4th 1338, 5 Cal.Rptr.2d 154 (1992); Sperry v. Bolas, 786 P.2d 517 (Colo.Ct.App.1989).

Id. at 673 n. 1.

Additionally, in Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109 (11th Cir.2001), the Eleventh Circuit was presented with the question of whether a tort claim, tortious interference with the contract, arose out of or was related to the underlying lease agreement, the contract, so as to make the arbitration provision of the agreement applicable. Although the Eleventh Circuit decided the tort in question did not arise out of the contract, it did note that “where the dispute occurs as a fairly direct result of the performance of contractual duties ... then the dispute can fairly be said to arise out of or relate to the contract in question, and arbitration is required.” Id. at 1116 (emphasis added).

In this case, the attorney’s fee clause provided that fees be awarded to the prevailing party as the result of any litigation “arising out of’ the contract. Under the Eleventh Circuit’s reasoning in Telecom Italia and the Fourth District’s reasoning in Kelly, the fraudulent misrepresentation complained of in this case could be correctly characterized as a tort stemming from or arising out of the failure of one party to carry out its contractual duty to reveal defects in the property. Had there been no contract, the ensuing misrepresentation would not have occurred. Therefore, the existence of the contract and the subsequent misrepresentation in this case are inextricably intertwined such that the tort complained of necessarily arose out of the underlying contract. As a result, the contractual provisions, including the prevailing party clause, should be given effect.

Based on the foregoing, we hold that plenary appeal is the proper method of review of attorney fee issues after a voluntary dismissal in the trial court. We also hold that the contractual or statutory basis for the attorney fee need not be specifically pled and failure to so plead does not result in a waiver of the claim. Therefore, we approve in part and quash in part the decision under review and remand this case to the Fifth District for further proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and SHAW and LEWIS, JJ., concur.

PARIENTE, J., concurs in result only with an opinion.

WELLS, J., concurs in part and dissents in part with an opinion, in which HARDING, Senior Justice, concurs.

PARIENTE, J.,

concurring in result only.

This case involves the right of the Cau-fields (the defendants), who were the sellers of a mobile home park, to appeal the denial of their claim for attorney’s fees following the voluntary dismissal of the complaint by the Cnteles (the plaintiffs), who were the purchasers. I agree with Judge Sharp’s analysis as to why this specific category of orders should be treated as final appealable orders. Specifically, I agree that because orders on attorney’s fees after a voluntary dismissal “determine the substantive rights of a party to attorney’s fees definitely and with finality,” these orders should be reviewable under rule 9.110. Caufield v. Cantele, 745 So.2d 431, 434 (Fla. 5th DCA 1999) (footnote omitted). As explained by Judge Sharp, “[n]o more judicial labor is contemplated” and “[l]evy and execution is possible following entry of an order making an award.” Id. at 434-35. Further, as Judge Sharp explained, by “treating attorney’s fee rulings after a voluntary dismissal as final and appealable, the courts achieve symmetry in the law which is just and fair, since that is how attorney’s fee awards or denials after a final judgment are reviewed.” Id. at 435.

I concur in result only because I do not agree with the majority’s reliance on what I consider to be overly broad language in the pre-1977 case of Clearwater Federal Savings & Loan Ass’n v. Sampson, 336 So.2d 78, 79 (Fla.1976), regarding when an order after judgment is a final appealable order. See majority op. at 375. A postde-cretal order “dispositive of any question, ... final as to that portion” of the cause, in the language of Sampson, could be interpreted as including categories of post-judgment orders that have been held un~ reviewable by appeal either as final or nonfinal orders. See, e.g., Peebles v. Sheridan Healthcare, Inc., 817 So.2d 1002, 1003 (Fla. 4th DCA 2002) (postjudgment order denying request that judge previously assigned to case hear motion for attorney’s fees not appealable as nonfinal order); Brake v. Swan, 767 So.2d 500, 502 (Fla. 3d DCA 2000) (order setting amount of fees and costs but deferring determination of who should pay award not appeal-able either as final judgment or nonfinal appeal); Winkelman v. Toll, 632 So.2d 130, 131-32 (Fla. 4th DCA 1994) (post-judgment order determining entitlement to attorney’s fees but not amount is not appealable as a final order). Although I am certain that the majority did not intend to expand the class of appealable orders, this concern leads me to concur only in the result as to the analysis of this issue in the majority opinion — specifically, its reliance on Sampson.

As to whether the defendant’s general claim for attorney’s fees satisfies the notice requirement of Stockman v. Downs, 573 So.2d 835 (Fla.1991), I fully concur with the majority. In my view, neither Stockman nor due process principles expressly require a specific pleading of the statutory or contractual basis of a claim for attorney’s fees. Thus, the general request for attorney’s fees in this case by the defendants satisfied the notice requirement of Stockman. I point out that the plaintiffs’ initial complaint included a request for attorney’s fees pursuant to the contract for sale. Although I would not oppose a prospective rule requiring more specificity in pleadings requirements for attorney’s fees, such a change should be done in accordance with our rule adoption and amendment procedures.

Lastly, I agree that the complaint as filed against the defendants/sellers5was for breach of contract and the alleged misrepresentations claimed by the plaintiffs/buyers arose in connection with the contract. Although based on an intentional misrepresentation, the court order stated that the relief sought was for monetary damages to correct latent defects in the sewer treatment plant. Thus, I would uphold the right to claim attorney’s fees based on the Fourth District’s reasoning in Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998), and the reasoning of this Court in Katz v. Van Der Noord, 546 So.2d 1047 (Fla.1989). Upon remand, the trial court should then consider the scope of the attorney’s fees clause as contemplated by the specific contract in light of the pleadings that were at issue in this case.

WELLS, J.,

concurring in part and dissenting in part.

I concur in the affirmance of the Fifth District as to the plenary appeal issue.

I dissent as to the reversal of the Fifth District on the other two issues. In respect to the pleading issue, the majority’s decision is contrary to this Court’s requirement that a motion for attorney fees be pled with specificity as to the basis upon which fees are authorized.

In respect to the third issue, the majority sets aside many years of precedent, which does not allow attorney fees to be awarded in tort claims. I believe that the ignoring of this precedent is error.

HARDING, Senior Justice, concurs.

      . See generally Stockman v. Downs, 573 So.2d 835 (Fla.1991) (holding that a claim for attorney’s fees must be pled, and failure to plead a claim for fees will result in a waiver of the claim).

      . Costs were not specifically addressed in the trial court's order denying the Caufields’ motion for fees and costs, nor did the Caufields raise denial of costs in their brief; therefore, costs are not addressed.

      . Only authorized motions for rehearing will delay the rendition of the trial court’s order, and, in turn, toll the time for filing a petition for certiorari. See Fla. R.App. P. 9.020(h). Because motions for rehearing are not authorized as to nonfinal orders, they can not delay the rendering of a nonfinal order. See Wagner v. Bieley, Wagner & Assocs., 263 So.2d 1 (Fla. 1972); Williams v. Dep’t of Health & Rehabilitative Servs., 468 So.2d 504 (Fla. 5th DCA 1985). Consequently, a motion for rehearing of a nonfinal order will not toll the time for filing a petition for certiorari. See Green Tree Vendor Servs. Corp. v. Lisi, 732 So.2d 422 (Fla. 1st DCA 1999); Shelnutt v. Citrus County, 660 So.2d 393 (Fla. 5th DCA 1995). Conversely, plenary appeal may only be sought from final orders. See art. V, § 4(b)(1), Fla. Const. Because motions for rehearing of final orders are authorized, they may. delay the rendering of the final order and, in turn, toll the time for seeking plenary appeal. See Wagner, 263 So.2d at 1.

      . See also State v. Furen, 118 So.2d 6, 12 (Fla.1960); So. Atlantic S.S. Co. v. Tutson, 139 Fla. 405, 190 So. 675, 683-84 (1939) (recognizing the discretionary nature of cer-tiorari review).

      . The Fifth District only certified conflict as to its decision on the method of review. See Caufield, 745 So.2d at 435. However, once this Court has accepted jurisdiction in order to resolve conflict, we may consider other issues decided by the court below which are properly raised and argued before this Court. See Savoie v. State, 422 So.2d 308 (Fla.1982). Therefore, we have jurisdiction to review the remaining issue which was not certified by the Fifth District.

      . In Stockman, this Court recognized an exception to this rule: "Where a party has notice that an opponent claims entitlement to attorney's fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” 573 So.2d at 838. While the Fifth District found the exception inapplicable to the instant case, the Caufields have not alleged that the exception is applicable. See Caufield, 745 So.2d at 436. Therefore, we do not alter the general scope of the exception or address its specific applicability to the instant case.


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Connie Ray ISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. SC95873.
    Supreme Court of Florida.
    Dec. 19, 2002.

      James B. Gibson, Public Defender, James R. Wulehak, Chief, Appellate Division, Assistant Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant.
    Richard E. Doran, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee.
   PER CURIAM.

We have on appeal the judgment and sentence of the trial court finding Connie Ray Israel guilty of first-degree murder and imposing a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Israel’s judgment and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Connie Ray Israel was charged with burglary of a dwelling with a battery, kid-naping, sexual battery with great force, and first-degree murder arising out of the December 27, 1991, murder of Esther Ha-gans in her home in Putnam County. At Israel’s first trial, the jury was unable to reach a verdict and a mistrial was declared. On February 2, 1999, Israel’s second trial began and the evidence revealed the following facts. Neighbors and friends indicated that Esther Hagans was known to carry large amounts of money on occasion. They indicated she rarely missed work unless she was very ill. On the morning of December 27, 1991, when she did not report for work, a fellow employee went to Hagans’ neighbor’s house to ask about her. The neighbor noticed that Ha-gans’ car was in the carport and called her house. When Hagans did not respond to the telephone call, the neighbor called the police.

The police found Hagans’ front door ajar and discovered her body in the bedroom. Hagans was lying naked on the bed with her legs spread apart and her hands tied behind her back. The medical examiner identified trauma to the left side of Ha-gans’ head, determined that her right eye was full of blood, and described cuts to the left eyebrow and temple, as well as abrasions on the right side of her face. The medical examiner also identified a tear on the right side of Hagans’ head that resulted from blunt trauma, which caused major hemorrhage to the brain. The medical examiner stated there were external vaginal injuries consistent with sexual assault. As to the cause of death, the medical examiner explained that Hagans had a weak heart which gave out due to the stress and shock of the beating and sexual assault she had endured.

At the crime scene, the police found footprints on the front porch steps and in a drainage ditch that ran along the front of the house. A screwdriver was found outside a window. Based on these factors it was determined that the point of entry was a window leading into Hagans’ bedroom. Sperm and semen stains were discovered on a pillowcase in the Hagans’ bedroom. Semen was also found on a slip and a bedspread recovered from the bedroom. The semen on both the slip and the bedspread was consistent with the semen recovered from the pillowcase. Likewise, semen found on vaginal swabs taken from the victim was consistent with the semen from the other items in the bedroom. Human blood was also found on a towel at the scene.

The evidence showed that Israel registered at the Palatka Holiday Inn on December 28,1991, and paid for two nights in cash. Maryann Pittman testified that she was a prostitute wprking in Palatka and knew Israel. Pittman stated that in December of 1991 she went with Israel to the Holiday Inn where they used crack cocaine. Pittman took a shower in the hotel room. She indicated that she saw a pair of pants and a shirt in the bathtub and that the water in the bathtub was red. Pittman also saw a black purse under the bed in the hotel room. She testified that Israel had money in his wallet when she looked through it. Israel told her he received the money from the Florida Lottery.

Israel’s friend, Melvin Shorter, testified that he saw Israel and Pittman at the Holiday Inn where they were using crack cocaine. Shorter testified that he sold crack cocaine to Israel three or four times that day. Israel paid cash for the crack cocaine with money he retrieved from, a wallet under the bed in the hotel room. Israel told Shorter he had “hit the lottery.”

Israel also registered at the William Penn Motel on December 30, 1991, and paid for one week in cash. Israel stayed only one night and was given a cash refund, for which he signed a receipt.

Israel and three other individuals were developed as suspects in Hagans’ murder. Eventually, the Florida Department of Law Enforcement was solicited to help with the investigation and after more interviews a blood sample was taken from Israel. After DNA testing comparing Israel’s blood sample to the semen stains found on the pillowcase and the slip, Israel was identified as the source of the semen stains in Hagans’ bedroom and was arrested in 1993.

Arthur McComb, a prisoner who was a legal clerk and who was housed in the same cell with Israel, testified that Israel asked for help with his case. During their discussions, Israel stated he was charged with first-degree murder and that he tried to knock the victim’s head off because she tried to “gum him.” Additionally Israel indicated that he sexually assaulted the victim and had gone to the victim’s house to steal church money and had taken $7,000 to $10,000.

Israel testified in his own defense, stating he was told by law enforcement officers that when the first officers arrived on the scene and found Hagans dead, they made it appear Hagans was beaten to death in order to keep $5,000 discovered in a dresser drawer. Israel testified he had nothing to do with breaking into Hagans’ house. Israel also insisted his semen was not found at the crime scene and that his blood was planted on objects found at the crime scene. He stated that he had only allowed McComb to read the accusations against him but had never confessed.

On March 1, 1999, the jury found Israel guilty as charged. After penalty proceedings, the jury returned a recommendation of death by a vote of eleven to one. Following the Spencer hearing on May 14, 1999, the trial court sentenced Israel to death on May 28, 1999, finding four aggravating circumstances and two statutory mitigating circumstances.

Israel raises seven issues on appeal, claiming the trial court erred in (1) conducting portions of the trial when Israel was involuntarily excluded; (2) denying Israel’s motion for continuance of trial; (3) denying Israel’s motion for mistrial; (4) requiring Israel to be held in visible restraints before the jury; (5) ignoring non-statutory mitigating evidence of drug abuse, brain damage, and low intellectual functioning presented during the penalty phase; (6) allowing the jury’s death sentence to stand even though it was grounded on a split jury vote; and (7) ruling Israel’s death sentence was proportionate.

GUILT PHASE

Israel claims the trial court erred in conducting portions of the jury selection while he was involuntarily absent from the courtroom. Israel’s trial began on Monday, February 22,1999, with jury qualification. During this proceeding defense counsel moved for a continuance, contending Israel was experiencing vision problems and dizziness. The trial court denied the motion after discussing the issue with Israel, defense counsel, and a jail nurse, who appeared by telephone from the jail facility. The jurors were given a fifteen-minute break and at some point in this process, Israel absented himself from the courtroom. After the trial court discussed Israel’s medical situation with the nurse from the jail, Israel was brought into the courtroom and was questioned about whether he wished to remain in the courtroom. Following this exchange, the jurors were brought back into the courtroom for individual voir dire, but just as the trial court questioned the first prospective juror, Israel stated he was sick and asked to be taken back to his holding cell until he received medication.

The trial court again questioned Israel about his decision to leave the courtroom. This time the proceedings were conducted at Israel’s holding cell because he refused to return to the courtroom. The trial judge recommended to Israel that he sit in the courtroom and assured Israel that if he changed his mind he would be welcomed back immediately.

When the trial resumed after lunch, the trial court asked defense counsel if Israel had changed his mind about coming to the courtroom. However, before anyone could answer, the clerk reported that an ambulance had been called because Israel had initiated a physical altercation with a bailiff in his holding cell. Israel was brought into the courtroom and in response to the trial court’s question, stated that he did not wish to remain. Israel remained in his holding cell for the duration of proceedings conducted on Monday, February 22.

Trial continued on Tuesday, February 23, and proceedings were again held at Israel’s holding cell to determine whether Israel wished to come into the courtroom. Israel stated only that he felt sick and would not respond further to the trial court’s inquiry. After lunch, the trial court asked defense counsel whether Israel wished to join the trial, but defense counsel answered that Israel did not. The trial court repeated to defense counsel that Israel was welcome back at any time. The trial court also asked the bailiff whether Israel had requested anything and the bailiff responded that Israel had not. By the end of trial on Tuesday, nine prospective jurors had been chosen.

We begin our discussion of this issue by noting that “[cjriminal defendants have a due process right to be physically present in all critical stages of trial, including the examination of prospective jurors.” Muhammad v. State, 782 So.2d 343, 351 (Fla.2001) (relying on Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). Florida Rule of Criminal Procedure 3.180(a) recognizes this right, providing that in all criminal prosecutions the defendant shall be present “at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury.” Fla. R.Crim. P. 3.180(a)(4). However, when a defendant voluntarily absents himself from the courtroom, rule 3.180(c) provides:

Defendant Absenting Self. If the defendant is present at the beginning of trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of the case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.

A defendant can waive his right to be present by voluntarily absenting himself from the courtroom.

Israel, however, attempts to classify his absence from the courtroom as involuntary and argues he was wrongfully excluded from jury selection. The record does not support his claim; instead, the record shows that Israel voluntarily chose to remain outside the courtroom in his holding cell for most of Monday and all of Tuesday as trial proceedings continued. After Israel asked to be taken to his holding cell on Monday, the trial court questioned him on the record about his decision, recommending to Israel that he remain in the courtroom and assuring him that he would be welcome back at any time. Likewise on Tuesday, the trial court questioned Israel to determine whether he wished to come into the courtroom but Israel refused to answer. The trial court made a conscientious effort to ensure that Israel was aware of his right to be present, and made it very clear to both defense counsel and Israel that Israel could rejoin the proceedings at any time. We find that because Israel’s absence from the courtroom was voluntary, he waived his right to be present during jury selection on Tuesday. The trial court did not err in conducting jury selection while Israel chose to remain in his holding cell.

As his second guilt phase issue, Israel claims the trial court erred in denying his motion for continuance of trial. Israel moved for a continuance at the start of trial, claiming he was too ill to proceed. Israel indicated to defense counsel that he (Israel) had not received the proper medications from the Department of Corrections after transport to the jail to await trial. The trial judge spoke with the nurse from the jail, who indicated that Israel’s prescription from the correctional facility had expired and that Israel had been given a nonprescription strength pain reliever that day for his headache. The trial court then questioned defense counsel about Israel’s medical history and indicated it was familiar with Israel’s health-related complaints.

As we explained in Kearse v. State, 770 So.2d 1119 (Fla.2000):

The granting of a continuance is within the trial court’s discretion, and the court’s ruling on a motion for continuance will only be reversed when an abuse of discretion is shown. See Gorby v. State, 630 So.2d 544, 546 (Fla.1993). An abuse of discretion is generally not found unless the court’s ruling on the continuance results in undue prejudice to defendant. See Fennie v. State, 648 So.2d 95, 97 (Fla.1994). This general rule is true even in death penalty cases. “While death penalty cases command [this Court’s] closest scrutiny, it is still the obligation of an appellate court to review with caution the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance.” Cooper v. State, 336 So.2d 1133, 1138 (Fla.1976); see also Hunter v. State, 660 So.2d 244, 249 (Fla.1995).

Id. at 1127. A trial judge’s ruling on a motion for a continuance will only be disturbed if there has been an abuse of that discretion.

We find the trial court did not abuse its discretion in denying Israel’s motion for a continuance. The trial court allowed Israel ample opportunity to explain his reasons for requesting a continuance, listening to Israel at length about his illness and his request for medication. The trial court also spoke with the nurse from the county jail who was familiar with Israel and his medical condition. Finally, and we believe most importantly, as the proceedings were about to recommence after lunch, Israel initiated a physical altercation with a bailiff resulting in injuries. This altercation tends to negate Israel’s claim that he was too ill to proceed with trial. Because the trial court’s informed ruling did not result in undue prejudice to Israel, we find the trial court did not abuse its discretion, and we deny relief on this claim.

Israel next argues the trial court erred in failing to grant his motion for mistrial based on a prejudicial statement made during the direct examination of a state witness. We disagree. A ruling on a motion for mistrial is within the sound discretion of the trial court. See Power v. State, 605 So.2d 856, 861 (Fla.1992). A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial. See Terry v. State, 668 So.2d 954 (Fla.1996). The statement by the witness in this case did not deprive Israel of a fair trial.

During the State’s case-in-chief, the prosecutor elicited testimony from Arthur McComb, Israel’s cellmate for several days at New River Correctional Institute in 1994. Evidently Israel had learned that McComb had experience with legal procedures and asked McComb for help with his case. McComb testified that during the conversation Israel began telling him about his case, a first-degree murder case. McComb said that Israel talked about more than one, and he, McComb, could talk in detail about two cases. Defense counsel immediately objected and moved for a mistrial on the ground that McComb revealed Israel had been charged with an additional murder. The State replied that the defense had not filed a motion in li-mine to keep MeComb’s testimony out of the trial. The trial court denied the motion for mistrial and refused the defense’s request to admonish the jury not to consider McComb’s statement, stating it did not want to bring additional attention to this particular matter.

Israel claims, relying on Hardie v. State, 513 So.2d 791 (Fla. 4th DCA 1987), that McComb’s testimony resulted in an unfair trial because McComb revealed to the jury that Israel had more than one murder charge. In Hardie, the defendant and two other men were charged with grand theft for a “smash and grab” at a jewelry department store. The theft took place during store hours and was videotaped. Over defense objection, five police officers expressed their opinions as to the identity of the persons depicted in the videotape. The Fourth District found the defendant suffered prejudice as a result of several witnesses being identified as police officers and then testifying concerning his identity because it created the impression that the defendant had been involved in other criminal activities or had a prior record. Id. at 792. Israel argues the same conclusion must be reached in this case because the jury undoubtedly concluded Israel had committed multiple murders based on McComb’s statement. We find, however, that McComb’s lone statement is simply not comparable to the situation in Hardie, where five witnesses identified themselves as police officers and implied that the defendant had been involved in other criminal activities or had a prior record.

Instead, we find this issue more akin to Evans v. State, 800 So.2d 182 (Fla.2001). In Evans, the defendant claimed he was deprived of a fair trial when a State witness referred to “records of the Orlando Police Department” because the jury could conclude from that statement that the defendant had a prior criminal record. Id. at 189. We disagreed, in part because the reference was isolated and not focused upon. Id. We reach the same conclusion in this case. McComb’s statement was neither highlighted for the jury by the prosecutor nor focused upon by the trial court. The trial court refused to admonish the jury so that no further attention would be drawn to the statement. See Cole v. State, 701 So.2d 845 (Fla.1997); Merck v. State, 664 So.2d 939 (Fla.1995). The trial court was well within its discretion to determine that the statement did not prevent Israel from receiving a fair trial. See Power, 605 So.2d at 861; Merck, 664 So.2d at 941.

Israel also claims, citing Castro v. State, 547 So.2d 111 (Fla.1989), that the trial court’s refusal to grant a mistrial was error with respect to the penalty phase. In Castro, we found the trial court erred in admitting improper Williams rule testimony and that this error was harmless as to the guilt phase. Id. at 115. As to the penalty phase, however, we found the Williams rule error improperly tended to negate the case for mitigation presented by the defendant and thus may have influenced the jury in its penalty-phase deliberation. Id. at 116. In this case, however, there is no evidence supporting the contention that McComb’s statement tended to negate the case for mitigation presented by Israel. Israel’s mitigation evidence consisted of testimony from a clinical psychologist about Israel’s mental state. There was no attempt by the defense to negate Israel’s criminal history. In fact, the State presented evidence of Israel’s prior criminal history via judgments and sentences and live witnesses. We deny relief on this issue because Israel has failed to demonstrate how this lone reference during the trial of information that was explored at the penalty phase negated his mitigation.

As his final guilt phase claim, Israel argues the trial court erred in requiring him to be held in restraints before the jury. As a general rule, a defendant in a criminal trial has the right to appear before the jury free from physical restraints, such as shackles or leg and waist restraints. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). We have recognized that restraining a defendant with shackles in view of the jury adversely impacts an accused’s presumption of innocence. See Diaz v. State, 513 So.2d 1045, 1047 (Fla.1987); Elledge v. State, 408 So.2d 1021, 1022 (Fla.1981).

However, a criminal defendant’s right to be free of physical restraints is not absolute because “under some circumstances, shackling ‘is necessary for the safe, reasonable and orderly progress of trial.’ ” United States v. Mayes, 158 F.3d 1215, 1225 (11th Cir.1998) (quoting United States v. Theriault, 531 F.2d 281, 284 (5th Cir.1976)). “Courtroom security is a competing interest that may, at times, ‘outweigh[ ] a defendant’s right to stand before the jury untainted by physical reminders of his status as an accused.’ ” Mayes, 158 F.3d at 1225 (quoting Allen v. Montgomery, 728 F.2d 1409, 1413 (11th Cir.1984)). Indeed, we have held that shackling is a permissible tool to be exercised in the sound discretion of the trial judge when circumstances involving the security and safety of the proceeding warrant it. See Derrick v. State, 581 So.2d 31, 35 (Fla.1991); Correll v. Dugger, 558 So.2d 422 (Fla.1990); Stewart v. State, 549 So.2d 171 (Fla.1989). “Shackles may be necessary to prevent the defendant from disrupting the trial ... and to protect the physical well-being of the jury, lawyers, judge, and other trial participants.” Zygadlo v. Waimoright, 720 F.2d 1221, 1223 (11th Cir.1983). In this case, the shackles were necessary to prevent the defendant from disrupting the proceedings.

Israel first disrupted the proceedings by leaving the courtroom during jury selection on Monday, February 22. Later the same day, a bailiff was injured when Israel initiated a physical altercation with him in his holding cell. On Tuesday, February 23, Israel remained in his holding cell while his trial continued in the courtroom. On Wednesday, February 24, Israel indicated he wished to return to the courtroom, and the trial court stated to defense counsel that in light of the altercation the court was going to require that Israel wear security restraints and remain seated while in the courtroom. The bailiff indicated that Israel’s hands would be placed in front of his waist chain, and that if Israel remained seated, it would not be obvious that he was wearing restraints.

We find the trial court did not abuse its discretion in requiring Israel to wear restraints. By interrupting the proceedings and failing to follow the trial court’s directions, Israel demonstrated a complete lack of respect for the trial court. Moreover, Israel initiated a physical attack resulting in injuries to a bailiff. The trial court indicated it had observed Israel’s “recent demonstrations of anger and bizarre misconduct,” and expressed its concern for the safety of court personnel and counsel “in light of what we’ve gone through here over the history of the case.” Moreover, the trial court took steps to ensure the least amount of prejudice by securing Israel’s hands in front of his body and by allowing him to remain seated so that the jury’s view of the restraints was obstructed. Because the security and safety of the proceeding warranted restraints, we find the trial court did not abuse its discretion in requiring restraints. See Derrick, 581 So.2d at 35.

PENALTY PHASE

Israel raises three issues related to the penalty phase proceedings. First, he argues the trial court erred in ignoring nonstatutory mitigating evidence of drug abuse, brain damage, and low intellectual functioning presented during the penalty phase. This evidence was presented during the testimony of Israel’s one witness, a clinical psychologist, Dr. Harry Krop. Dr. Krop testified that he saw Israel seven times and that Israel was generally uncooperative. Dr. Krop administered five neuropsychological tests to determine whether Israel suffered some type of brain damage, but for the most part Israel was unwilling to cooperate. Dr. Krop testified that Israel’s IQ testing placed him at the low-average range of intellectual ability, and that his testing was suggestive of a person who probably had organic or neurological impairment all his life. However, Dr. Krop testified that because he did not have Israel’s records, he could not determine the cause of Israel’s brain damage. Overall, Dr. Krop stated he would diagnose Israel as an individual with a history of substance abuse, and personality disorder with antisocial, paranoid, and hypo-chondriacal features.

In Chandler v. State, 702 So.2d 186 (Fla.1997), we reiterated the approved procedure by which the trial court must address mitigating evidence:

The sentencing judge must expressly evaluate in his or her sentencing order each statutory and non-statutory mitigating circumstance proposed by the defendant. This evaluation must determine if the statutory mitigating circumstance is supported by the evidence and if the non-statutory mitigating circumstance is truly of a mitigating nature. A mitigator is supported by evidence if it is mitigating in nature and reasonably established by the greater weight of the evidence.

Id at 200 (quoting Ferrell v. State, 653 So.2d 367, 371 (Fla.1995)). See also Knight v. State, 746 So.2d 423, 435 (Fla.1998); Spencer v. State, 645 So.2d 377, 385 (Fla.1994).

In this case, the defense requested the two statutory mental mitigating circumstances. The trial court addressed both statutory mitigators in its sentencing order and found them to be supported by the testimony of Dr. Krop. The defense also requested the catch-all mitigating circumstance, which the trial court addressed as follows:

Other evidence the Court has considered in mitigation are aspects of the [sic] Mr. Israel’s character, his record and other circumstances of the surrounding offense. In the Court’s opinion nothing about this catch-all mitigating factor applies to Mr. Israel. His record is bad, his character worse, and the offense is horrible. The Court assigns no weight to this mitigating factor.

Although the trial court’s sentencing order is conclusory in certain aspects, we find no reversible error in the trial court’s treatment of the mitigation in this case.

We addressed a similar issue in Nelson v. State, 748 So.2d 237, 243-44 (Fla.1999). In Nelson, trial testimony indicated that the defendant had a history of alcohol and drug abuse. However, the defendant did not identify the substance abuse as a mitigating factor when he presented the miti-gators to the trial court. Id. at 243. Relying on Consalvo v. State, 697 So.2d 805, 818 (Fla.1996), in Nelson this Court noted:

In Lucas v. State, 568 So.2d 18 (Fla.1990), we stated: “[T]he defense must share the burden and identify for the court the specific nonstatutory mitigating circumstances it is attempting to establish.” Id. at 24. Unlike statutory mitigation that has been clearly defined by the legislature, nonstatutory mitigation may consist of any factor that could reasonably bear on the sentence. The parameters of nonstatutory mitigation are largely undefined. This is one of the reasons that we impose some burden on a party to identify the nonstatutory mitigation relied upon.

Nelson, 748 So.2d at 243-44 (quoting Con-salvo, 697 So.2d at 818). Therefore, in Nelson we found the trial court did not err in failing to consider the defendant’s history of alcohol and substance abuse as a separate nonstatutory mitigator. 748 So.2d at 244.

A review of the record in this case demonstrates that Israel failed to identify the areas of drug abuse, brain damage, and low intellectual functioning as specific non-statutory mitigation for the trial court to consider. In fact, the trial court specifically referenced Dr. Krop’s testimony in the discussion of the two statutory mental mit-igators. Therefore, we find the trial court did not err and did not ignore the evidence.

Next, Israel attacks the constitutionality of his death sentence because the jury recommended death by a split vote of eleven to one. We have previously rejected this argument and do so again in this case. See Sexton v. State, 775 So.2d 923, 936 (Fla.2000); Hunter v. State, 660 So.2d 244, 252-53 (Fla.1995) (citing James v. State, 453 So.2d 786, 792 (Fla.1984)).

Finally, Israel argues his death sentence is disproportionate. Due to the uniqueness and finality of death, this Court addresses the propriety of all death sentences in a proportionality review. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). In deciding whether death is a proportionate penalty and to ensure uniformity in the imposition of the death sentence, this Court reviews and considers all the circumstances in a case relative to other capital cases. See Johnson v. State, 720 So.2d 232, 238 (Fla.1998); Urbin v. State, 714 So.2d 411, 416-17 (Fla. 1998). The death penalty is reserved for those cases that are the most aggravated and least mitigated. See Kramer v. State, 619 So.2d 274, 278 (Fla.1993); State v. Dixon, 283 So.2d 1 (Fla.1973).

In sentencing Israel to death, the trial court found and weighed four aggravating circumstances: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of use of violence to a person, (2) the crime was especially heinous, atrocious, or cruel, (3) the crime was committed while defendant was engaged in the commission of a sexual battery, burglary, and kidnaping, and (4) the capital felony was committed for pecuniary gain. The trial court also considered and weighed two statutory mitigators: (1) the defendant was under the influence of an extreme mental or emotional disturbance at the time the crime occurred; and (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.

In arguing that death is a disproportionate penalty in this case, Israel relies on Songer v. State, 544 So.2d 1010 (Fla.1989), Fitzpatrick v. State, 527 So.2d 809 (Fla.1988), and Huckaby v. State, 343 So.2d 29 (Fla.1977). We find Songer to be of no comparable value to the instant case because Songer involved only one valid aggravating circumstance and significant mitigating factors. 544 So.2d at 1011.

In Fitzpatrick, the trial court found five aggravating circumstances (previously convicted of another capital felony or felony involving violence, knowingly created great risk of death to many persons, felony committed while in commission of kidnaping, felony committed for purpose of avoiding or preventing a lawful arrest, and felony committed for pecuniary gain), and three statutory mitigating circumstances (under influence of extreme mental or emotional disturbance, capacity to appreciate criminality of conduct substantially impaired, and age of defendant at the time of the crime). 527 So.2d at 811. However, we vacated Fitzpatrick’s death sentence because of other substantial mitigation in the record. Id. at 812. For example, those present at the scene of the crime testified that Fitzpatrick appeared psychotic, high, spacey, panicky, and wild. Fitzpatrick’s family members and those who had known him throughout most of his life testified that he frequently talked to himself as if he were hearing voices. Moreover, it was the unanimous opinion of several mental and physical health experts that Fitzpatrick’s emotional age was between nine and twelve years old, and thus we concluded, “Fitzpatrick’s actions were those of a seriously emotionally disturbed man-child, not those of a cold-blooded, heartless killer.” Id. at 812.

Israel asserts that when his case is compared to Fitzpatrick, his death sentence is disproportionate. We cannot agree. The mitigation presented in Fitzpatrick, especially that the defendant was characterized as a “seriously emotionally disturbed man-child,” is simply not comparable to the two statutory mitigators found in the instant case. There is nothing in the record to suggest that Israel possessed an unusually low emotional age. Moreover, in Fitzpatrick we noted that the aggravating circumstances of heinous, atrocious or cruel (HAC) and cold, calculated, and premeditated (CCP) were conspicuously absent. Id. at 812. Here the trial court found four valid aggravators, including HAC. This case is not, as Israel asserts, one of the least aggravated.

In Huckaby, the trial court found three aggravating circumstances and no mitigating circumstances. We affirmed two of the three aggravators, but vacated the defendant’s death sentence because the trial judge “ignored every aspect of the medical testimony ... when he found that no mitigating circumstances existed.” 343 So.2d at 33. Also, we found that the heinous and atrocious manner in which the crime was committed in Huckaby was the direct consequence of the defendant’s mental illness. Id. In the instant ease, however, the trial court did not ignore the medical testimony presented. The trial court relied on Dr. Krop’s testimony to support the two statutory mental mitigators. Israel’s death sentence is not disproportionate when compared to Huckaby.

We conclude that the instant case is more like cases where we have upheld the defendant’s death sentence in light of substantial aggravation and relatively little mitigation. See Hildwin v. State, 727 So.2d 193, 198 (Fla.1998) (death sentence proportionate where trial court properly found and weighed four aggravating circumstances (HAC, pecuniary gain, prior violent felony, and under sentence of imprisonment), two statutory mitigators (under the influence of extreme mental or emotional disturbance at time of murder, and capacity to conform conduct substantially impaired), and five nonstatutory miti-gators (history of childhood abuse, history of drug or substance abuse, organic brain damage, ability to do well in a structured environment like prison, and mental illness was readily treatable in a prison setting)); Jones v. State, 748 So.2d 1012, 1017 (Fla.1999) (death sentence proportionate where trial court properly found and weighed four aggravating circumstances (murder committed during course of kidnapping and robbery, previous violent felony, HAC, and murder committed to avoid arrest), two statutory mitigators (under the influence of extreme mental or emotional disturbance at time of murder, and capacity to appreciate criminality of conduct substantially impaired), and three nonstatuto-ry mitigators (defendant was a crack addict, defendant had a teenage daughter and was a good worker and provider when not using drugs, and defendant had exhibited signs of a psychotic episode)). Based on our review of the aggravating and mitigating circumstances, including their nature and quality, we find that the totality of the circumstances justifies the imposition of the death sentence. See Porter, 564 So.2d at 1064.

CONCLUSION

Based on the foregoing, we affirm Israel’s conviction for the first-degree murder of Esther Hagans and the imposition of a sentence of death.

It is so ordered.

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

ANSTEAD, C.J., concurs as to conviction, and concurs in result only as to sentence.

PARIENTE, J., concurs in result only with an opinion, in which SHAW, J., concurs.

PARIENTE, J.,

concurring in result only.

I concur in the denial of Israel’s claim that the nonunanimous death recommendation renders his death sentence unconstitutional, for the same reasons as in my concurring-in-result-only opinions in Bottoson v. Moore, 833 So.2d 693, 719-25 (Fla.2002), and King v. Moore, 831 So.2d 143, 149-56 (Fla.2002). Although I believe that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), compels us to recede from our statement in Mills v. Moore, 786 So.2d 532, 537-38 (Fla.2001), that death is the maximum penalty authorized for a first-degree murder verdict under Florida law, this conclusion does not render Israel’s sentence infirm.

Two aggravating circumstances were based on other convictions: a prior capital or violent felony, and a murder committed during a sexual battery, burglary or kidnapping. In Bottoson and King, we denied habeas relief to petitioners whose aggravating circumstances included prior violent felony convictions. The other-conviction aggravators in this case make it unnecessary to determine whether the nonunanimous jury recommendation renders Israel’s death sentence unconstitutional. I cannot agree with the majority that the summary disposition of these constitutional claims in Sexton v. State, 775 So.2d 923, 936 (Fla.2000), and Hunter v. State, 660 So.2d 244, 252-53 (Fla.1995), remains valid authority for rejection of claims regarding nonunanimous jury recommendations in the wake of Ring. Accordingly, I concur in result only as to the affirmance of Israel’s sentence on this issue.

SHAW, J., concurs.

      . Maryann Pittman was unavailable for Israel's second trial and thus her prior testimony was read into evidence.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . The aggravating circumstances were: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of use of violence to a person; (2) the crime was especially heinous, atrocious or cruel; (3) the crime was committed while the defendant was engaged in the commission of a sexual battery, burglary, and kidnaping; and (4) the capital felony was committed for pecuniary gain.

      .The mitigating circumstances were: (1) the defendant was under the influence of an extreme mental or emotional disturbance at the time the crime occurred (some credence); and (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (some credence).

      . The motion for continuance will be discussed more fully with respect to Israel's second guilt phase claim.

      . Israel also claims he advised defense counsel at lunch on Tuesday, February 23, that he (Israel) wished to participate in jury selection, and it was not until trial had recessed on Tuesday afternoon that he was informed, by a bailiff, that nine jurors had been selected. Defense counsel was questioned on Tuesday afternoon about Israel’s wishes and indicated that Israel wished to remain in his holding cell. On Thursday, Israel complained to the trial court that "I also asked him [defense counsel], did you or the State pick any people in which I was to participate,” but defense counsel did not respond to Israel’s complaint nor did the trial court inquire of defense counsel after Israel’s complaint. Therefore, whether defense counsel carried out Israel's wishes (if Israel did indeed inform defense counsel of his wishes), cannot be ascertained from this record.

      . As a result of the altercation, the bailiff suffered lacerations on his nose and chin, as well as a tom and bleeding sclera, the white section of the eye.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: LEWIS, J.

text:
    STATE of Florida, Petitioner, v. Steven DARST, Respondent.
    No. SC02-984.
    Supreme Court of Florida.
    Dec. 19, 2002.

      Richard E. Doran, Attorney General, and Kellie A. Nielan and Anthony J. Golden, Assistant Attorneys General, Daytona Beach, FL, for Petitioner.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
   LEWIS, J.

We have for review the decision of the Fifth District Court of Appeal, Darst v. State, 816 So.2d 680 (Fla. 5th DCA 2002), both declaring section 784.07 of the Florida Statutes (1999) to be an enhancement statute, and certifying conflict with Mills v. State, 773 So.2d 650 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

This Court granted review in Mills, and addressed the issue presented here. See Mills v. State, 822 So.2d 1284 (Fla.2002). There we held section 784.07 of the Florida Statutes is a reclassification statute, not an enhancement statute, and thus creates a substantive crime. See id. at 1287. As the district court’s holding is inconsistent with this Court’s decision in Mills, its decision is quashed and the case is remanded to the district court for further proceedings consistent with Mills.

It is so ordered.

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


author: PER CURIAM.

text:
    Jennifer BACH, Petitioner, v. UNITED PARCEL SERVICE, INC., Respondent.
    No. SC01-2598.
    Supreme Court of Florida.
    Dec. 19, 2002.
    Stacy Strolla of the Law Offices of Strol-la & Strolla, West Palm Beach, FL, for Petitioner.
    Lucinda A. Hoffmann of Holland & Knight LLP, Miami, FL, for Respondent.
    Richard E. Johnson, Tallahassee, FL, for the National Employment Lawyers Association, Florida Chapter, Amicus Curiae.
    Michael J. Farrell, Supervisory Trial Attorney, EEOC Miami District Office, Miami, FL; and Susan R. Oxford, Attorney, Equal Employment Opportunity Commission, Washington, D.C., for U.S. Equal Employment Opportunity Commission, Amicus Curiae.
   PER CURIAM.

We have for review the Fourth District Court of Appeal’s decision in Bach v. United Parcel Service, Inc., 808 So.2d 230 (Fla. 4th DCA 2001), which adopted the analysis of the Third District Court of Appeal’s decision in Woodham v. Blue Cross & Blue Shield of Florida, Inc., 793 So.2d 41 (Fla. 3d DCA 2001), quashed, 829 So.2d 891 (Fla.2002). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981). For the reasons expressed in our opinion in Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So.2d 891 (Fla.2002), the decision of the Fourth District is hereby quashed. We remand to the district court for proceedings consistent with this opinion.

It is so ordered.

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


text:
    William REAVES, Petitioner, v. James V. CROSBY, Jr., etc., Respondent.
    No. SC02-15.
    Supreme Court of Florida.
    Jan. 9, 2003.
    William M. Hennis, III, Assistant CCRC, Office of the Capital Collateral Regional Counsel — South, Fort Lauderdale, FL, for Petitioner.

      Charlie Crist, Attorney General, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

William Reaves, an inmate under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

In the early morning hours of September 23, 1986, Reaves fatally shot Deputy Sheriff Richard Raczkoski. Our prior opinion sets forth the relevant facts and procedural history. See Reaves v. State, 639 So.2d 1, 3 (Fla.1994). After the jury recommended death by a vote of ten to two, the trial court concluded that the aggravating circumstances of the crime outweighed the mitigating circumstances and followed the jury’s recommendation. On direct appeal, appellate counsel raised sixteen claims. This Court affirmed the conviction and sentence. See id. Reaves filed a motion for postconviction relief with the trial court, which was summarily denied. This Court remanded the matter to the trial court, finding that the trial court erred in summarily denying Reaves’ claim relative to whether trial counsel was ineffective in failing to pursue a voluntary intoxication defense. Reaves v. State, 826 So.2d 932 (Fla.2002). Reaves now files this petition for a writ of habeas corpus.

In his first claim, Reaves asserts that appellate counsel was ineffective by (1) failing to argue the trial court’s error in prohibiting the admission of Dr. Weitz’s psychological testimony during the guilt phase, (2) failing to properly argue on appeal issues pertaining to Hinton’s prior inconsistent statements, (3) failing to properly argue Reaves’ claim regarding the admissibility of evidence relative to his attempt to sell cocaine in Georgia, and (4) improperly arguing the trial court’s error when it failed to find numerous mitigating factors. These claims, or variants to the claims, have already been raised and addressed by this Court on direct appeal. See Reaves, 639 So.2d at 3. As we have repeatedly held, “it is improper to argue in a habeas petition a variant to a claim previously decided.” Porter v. Moore, 27 Fla. L. Weekly S606, S606 (Fla. June 20, 2002). See also Jones v. Moore, 794 So.2d 579, 586 (Fla.2001) (“This Court previously has made clear that habeas is not proper to argue a variant to an already decided issue.”); Routly v. Wainwright, 502 So.2d 901, 903 (Fla.1987) (“[PJetitioner’s contention that [the point] was inadequately argued merely expresses dissatisfaction with the outcome of the argument in that it did not achieve a favorable result for petitioner. We therefore decline petitioner’s invitation to utilize the writ of habeas as a vehicle for the re-argument of issues which have been raised and ruled on by this Court.”) (citation and quotation marks omitted). Hence we deny relief.

Reaves next contends that his appellate counsel was ineffective when he failed to raise as error the trial court’s denial of his motion to disclose Officer Raczkoski’s personnel records — records which he contends could have shown how Officer Raczkoski tended to respond in stressful situations. The record reveals that the trial court denied Reaves’ motion to compel based in part on the judge’s belief that this information may be available in public records:

[B]efore I determine whether [the records are] in the quasi custody of the prosecution through another government agency encompassed within the Nineteenth Circuit, I want you to explore the public records requirements, and in the event that all other avenues fail, pursuant to the [public records] statute, then I’ll allow you to refile.

Defense counsel did not pursue the matter further, so this issue was not preserved for appeal. As this issue does not concern a fundamental error, “appellate counsel cannot be deemed ineffective for failing to raise an unpreserved claim.” Asay v. Moore, 828 So.2d 985, 993 (Fla.2002). We deny this claim.

Reaves’ final claim asserts that appellate counsel was ineffective for failing to argue that Reaves’ prior convictions should not have been considered as an aggravating factor. Other than one cursory sentence, however, counsel fails to provide any argument relative to this ground, and accordingly, we find that it is not properly before this Court. See Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990) (“The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments be'low without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.”). Accordingly, we deny the petition for writ of habeas corpus.

It is so ordered.

WELLS, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs in result only with an opinion, in which ANSTEAD, C.J., concurs.

PARIENTE, J.,

concurring in result only.

I concur in result only because, with one exception,1 do not believe that the issues in Reaves’ first claim of ineffective assistance are procedurally barred. Reaves asserts that appellate counsel was ineffective in the manner in which he argued the issues of the exclusion of prior inconsistent statements by witness Hinton, the admission of evidence of his attempted cocaine sale, and the trial court’s failure to find numerous mitigating factors. We have previously recognized that the question raised by challenges to appellate counsel’s approach in arguing an issue is whether an alternative tack “would in any reasonable likelihood have achieved any different result from the appellate process.” Steinhorst v. Wainwright, 477 So.2d 587, 541 (Fla.1985). A claim that an issue should have been presented differently is necessarily to some degree a variant of the previous argument, and should not be denied for that reason alone.

Instead, I would deny relief because these claims are without merit. In the direct appeal, we agreed with counsel’s argument that the trial court erred in excluding Hinton’s prior inconsistent statements and in admitting the evidence of Reaves’ attempt to sell cocaine in Georgia, but determined that these errors were harmless. See Reaves v. State, 639 So.2d 1, 4, 5 (Fla.1994). Accordingly, I cannot conclude that Reaves’ counsel was ineffective in failing to obtain reversal on these claims. Nor was counsel ineffective in the manner in which he argued the issue of the failure to find nonstatutory mitigators. “While it is nearly always possible to envision a different approach to arguing an issue on appeal after a particular attempt has not been successful, such a speculation based on the benefit of hindsight does not establish ineffectiveness of counsel.” Ste-inhorst, 477 So.2d at 541.

Finally, I question whether disposition of this habeas petition is premature in light of the fact that we have remanded a portion of Reaves’ rule 3.850 claim regarding ineffective assistance of trial counsel to the trial court for an evidentiary hearing. See Reaves v. State, 826 So.2d 932, 944 (Fla.2002).

ANSTEAD, C.J., concurs.

      . The trial court found three aggravating circumstances: (1) Reaves was previously convicted of a felony involving the use or threat of violence to the person; (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; and (3) the capital felony was especially heinous, atrocious, or cruel (HAC). § 921.141 (5)(b), (e), (h), Fla. Stat. (1985). On direct appeal, this Court held that HAC was not applicable, but the death penalty was still warranted.

      . The trial court found that no statutory mitigation existed and three nonstatutory mitigating circumstances applied: (1) Reaves was honorably discharged from military service; (2) he had a good reputation in his community up to the age of sixteen; and (3) he was a considerate son to his mother and good to his siblings.

      . Appellate counsel asserted that the trial court erred by (1) refusing to admit evidence of witness Hinton’s prior inconsistent statements, (2) ruling erroneously on various jury selection issues, (3) excluding Dr. Weitz's testimony during the guilt phase, (4) denying Reaves’ motion to disqualify the Office of the State Attorney, (5) denying Reaves' motions for mistrial based upon prosecutorial misconduct, (6) permitting the admission of irrelevant and prejudicial evidence of Reaves' attempted drug transaction in Georgia, (7) determining that the court had jurisdiction to try the case, (8) giving erroneous jury instructions relative to charges regarding first-degree murder, reasonable doubt, and the burden of proof, (9) admitting over objection various inflammatory pieces of evidence and permitting numerous deputies to remain in the courtroom during the proceedings, (10) denying Reaves' motion to dismiss the jury venire, (11) refusing to appoint co-counsel, (12) denying Reaves' motion to compel discovery, (13) finding that the crime was HAC, (14) failing to find two statutory mitigators applied in the case, and (15) failing to find numerous nonstatutory mitigation. Reaves also challenged the constitutionality of Florida’s death penalty statute.

      . See Armstrong v. State, 642 So.2d 730, 740 (Fla.1994) (holding that the,failure to obtain ruling on a motion fails to preserve the issue for appeal).

      . I agree that the argument on the exclusion of Dr. Weitz’s guilt-phase testimony is merely a variant of the claim concerning "Vietnam Syndrome” evidence which we rejected in the direct appeal. See Reaves v. State, 639 So.2d 1, 4-5 (Fla.1994).


text:
    Michelle HAUSMANN, etc., Petitioner, v. L.M. and J.M., Respondents.
    No. SC01-2749.
    Supreme Court of Florida.
    Jan. 9, 2003.
    Lynn G. Waxman, West Palm Beach, Florida, and Amy Hickman of Hausmann & Hickman, Boynton Beach, FL, for Petitioner.
    Steven M. Pesso and Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, FL, for Respondents.
   PER CURIAM.

We originally accepted jurisdiction to review Hausmann ex rel. Doe v. L.M, 806 So.2d 511 (Fla. 4th DCA 2001), pursuant to article V, section 3(b)(4), Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

NO MOTION FOR REHEARING WILL BE ALLOWED.

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