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

text:
    Norman Mearle GRIM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC01-256.
    Supreme Court of Florida.
    March 20, 2003.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
    Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

This is an appeal from convictions for first-degree murder and sexual battery upon a person twelve years of age or older with use of a deadly weapon. The appellant was sentenced to death for the first-degree murder conviction and sentenced consecutively to 390.5 months’ imprisonment for the sexual battery conviction. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm both convictions and sentences.

FACTS

On July 27, 1998, at approximately 5:08 a.m., Deputy Sheriff Timothy Lynch responded to a call from Cynthia Campbell, who complained of a disturbance behind her house.. Upon Lynch’s arrival, Campbell was standing on her front porch with her next-door neighbor Norman Grim, Jr., who was wearing a pair of cut-off jean shorts. All three walked around the porch to the back of Campbell’s house where Lynch noticed a broken window and a chrome lug nut in the surrounding bushes. Before returning to his house, Grim invited Campbell over for a cup of coffee after Lynch finished his investigation.

Connie Kelley, Campbell’s bookkeeper, arrived at Campbell’s house at 7:20 a.m., entered the house, called Campbell’s name, but did not receive an answer. Kelley became concerned and called the police. Cynthia Magee, Campbell’s paralegal, went to Campbell’s house later in the morning, saw her car parked in front of the house, and went inside to check. Deputy Sheriffs Calvin Rutherford and Steven McCauley arrived ten to fifteen minutes after Magee.

Rutherford obtained permission from Grim to look inside his home and noted that Grim had no shirt on and that there was a light pink color on one of his shoulders. Neither deputy saw any signs that there had been a struggle in the house.

Corporal Blevin Davis arrived at 11 a.m. and talked briefly with Grim. Davis observed that Grim was wearing a pair of cut-off blue jean shorts with several small reddish brown stains on them; there was another reddish-brown stain on his shoulder. Grim explained that the stains were primer paint from where he had been working on his car. Grim asked for and obtained permission to get his dogs that were now loose in the neighborhood.

Thomas Rodgers, the manager of the north end of the Pensacola Bay fishing bridge, ran a bait and tackle shop and convenience store at the foot of the fishing bridge, and he testified that sometime early in the afternoon of July 27, 1998, Grim came into his store. On the same day, Cynthia Wells, a former coworker of Grim, left work around 1 p.m. and was traveling on the Pensacola Bay bridge where she saw Grim walking beside his parked car with both doors and the trunk open. She testified that he was wearing a light-colored shirt and cut-off blue jean shorts.

In the afternoon of July 27, James Andrews and his son were fishing from the Pensacola Bay bridge. Around 3:30 p.m., Andrews hooked a human body that was wrapped in a sheet, a shower curtain, and masking tape. Law enforcement was called to retrieve the body, which the parties stipulated was Cynthia Campbell. After receiving word that Campbell’s body had been found, Detective Donnie Wiggen went to the convenience store where he talked to Rodgers and retrieved a surveillance videotape showing that Grim had entered the store just after 2 p.m.

Law enforcement officers secured Grim’s house. Davis drove to the Pensacola Bay fishing bridge and was present when Campbell’s body was brought to shore. Davis testified that her body was wrapped in striped sheets, which the police determined belonged to Grim, and black garbage bags. When the bags and sheets were removed at the autopsy, Davis observed that a piece of green carpet was “wrapped up with everything else.” Davis recalled having seen a similar piece of green carpet hanging over the rail of Grim’s back porch. Thereafter, the police obtained a search warrant for Grim’s home and an arrest warrant.

Crime scene analyst Janice Johnson from the Florida Department of Law Enforcement attended Campbell’s autopsy conducted by Dr. Michael Berkland, a forensic pathologist. Johnson testified that under the black garbage bags, the body was wrapped in carpet and sheets. They had to remove “layers of material,” including the garbage bags, a floral sheet, a blue striped flat sheet and fitted sheet, a piece of green carpet, masking tape, and rope.

Dr. Berkland testified that Campbell’s face was covered with deep abrasions and contusions around both eyes, her forehead, both sides of her chin, and her lips, all of which Dr. Berkland described as blunt force trauma. There was additional blunt force trauma to both shoulders and to the head. These injuries were all consistent with having been inflicted by a hammer. Dr. Berkland testified that Campbell suffered eleven stab wounds to the chest, seven of which penetrated her heart, and were consistent with having been caused by a single-edged weapon like a knife. Dr. Berkland opined that the blows to the head preceded the stabbings to the chest and that Campbell’s death was caused by blunt force trauma to the head and multiple stab wounds to the chest.

After attending the autopsy, Janice Johnson went to the victim’s home where she found no signs of any struggle. She then went to Grim’s home where she found two damp mops in the kitchen that had suspected blood stains. Although the area appeared to have been cleaned, Johnson discovered small areas of blood on the floor of the kitchen and on the cabinets near the floor. Johnson collected a coffee mug from the kitchen counter and two bloody fingerprints on a trash bag box. Inside the kitchen trash can was a striped pillow case that appeared to have blood on it and that had the same pattern as one of the sheets found wrapped around Campbell’s body. In the dining room, Johnson collected additional samples of suspected blood from the window frame and from the floor. In the living room, Johnson seized a pair of athletic shoes and a rope which appeared to be consistent with the rope found on the victim’s body. Johnson also collected a pair of blue-jean shorts with bloodstains on them.

On the back porch, Johnson found a piece of green carpet draped over the rail which was consistent with the green carpet wrapped around the victim’s body. Johnson also found a cooler in which she found a steak knife, a piece of terry cloth with reddish-brown stains on it, a pair of Hanes underwear, a tampon with reddish-brown stains on it, a pair of prescription eyeglasses, a wristwatch with a broken band, masking tape, a blue and white striped pillowcase, a hammer with suspected blood, some cloth tissue, and a Bud Lite beer carton.

Grim was arrested in Oklahoma on July 31, 1998. Detective Davis flew to Oklahoma to pick him up, to retrieve the clothes he had been wearing, and to arrange for the return of Grim’s car.

The prescription glasses found in the cooler matched Campbell’s prescription records, and the roll of masking tape in the cooler was fracture-matched to the tape found on Campbell’s body. The rope and the green carpet found on Campbell’s body were compared to the rope and green carpet found at Grim’s home. Although the examiner was unable to fracture-match these pieces, he determined that they were identical in appearance, construction, and fiber type and could have originated from the same source. Fingerprints on the coffee cup found on Grim’s kitchen counter were identified as Cynthia Campbell’s, and the bloody fingerprints on the trash bag box were identified as Grim’s.

DNA analysis of stains on the cut-off jean shorts Grim was wearing when arrested revealed twelve genetic markers consistent with the DNA of Cynthia Campbell, and the steak knife found in Grim’s cooler yielded six genetic markers consistent with the victim. The hammer found in the same cooler also yielded genetic markers consistent with the victim, as did swab-bings from the box of trash bags. Likewise, stains on a pair of blue-jean shorts and a pair of shoes found in Grim’s living room bore genetic markers consistent with those of the victim.

After the presentation of evidence during the guilt phase, the jury returned a verdict of guilty on the charges of first-degree murder and sexual battery upon a person twelve years of age or older with the use of a deadly weapon. In light of the fact that Grim continued to insist on waiving his right to present mitigating evidence during the penalty phase, and, in fact, ordered his attorneys not to present any mitigation, the trial court conducted a hearing pursuant to Koon v. Dugger; 619 So.2d 246 (Fla.1993). During the hearing, the trial judge determined that Grim freely, voluntarily, and knowingly entered into his decision to waive mitigation and announced that he would conduct the penalty phase before the jury where Grim still could, if he wished, present mitigating evidence. Afterward, the judge stated that he would conduct a Spencer hearing and order a presentenee investigation report and, if necessary, he would also appoint an independent or special counsel to present mitigating evidence to the court outside the presence of the jury.

At the penalty phase, the State introduced certified copies and testimony relative to Grim’s prior Florida convictions: (1) unarmed robbery; (2) kidnapping and robbery; (3) armed burglary and aggravated battery; and (4) armed burglary and armed theft. The State’s last witness was the victim’s mother, Dorothea Campbell, who read a short victim impact statement. Grim did not present any mitigating evidence, and the jury recommended the death penalty by a vote of twelve to zero.

At the sentencing hearing, Grim’s attorneys were present before the court, along with Spiro Kypreos, special counsel appointed by the trial court to investigate and present mitigation. Grim insisted on not presenting any mitigation and so instructed his attorneys. Defense counsel confirmed Grim’s waiver of mitigation, and the trial court found that Grim, against the advice of his counsel, freely and voluntarily decided not to present mitigating evidence.

During sentencing, the State presented its sentencing memorandum to the court, along with depositions from the following persons: Grim’s mother, stepfather, and sister, a coworker, a supervisor, and psychologist Dr. James Larson. Defense counsel objected to the attachment of Dr. Larson’s deposition because it provided mitigation that Grim did not want presented.

Before there was any presentation of mitigating evidence at the sentencing hearing, defense counsel objected to special counsel Kypreos’s presentation, particularly to Dr. Larson’s interview with Grim. The trial court denied the objection. Thereafter Kypreos offered in mitigation a presentence report and a psychological report from court proceedings occurring in 1982, a' 1983 letter from Grim’s public defender in those cases, and a written description of intermittent explosive disorder taken from the Diagnostic and Statistical Manual of Mental Disorders (4th ed.2000). Kypreos also presented testimony from Grim’s sister relative to his family life and childhood and two of Grim’s work supervisors regarding his work ethic.

In its written order, the trial court found that the State established three aggravating circumstances beyond a reasonable doubt: (1) the murder was committed by a person under sentence of imprisonment; (2) the defendant had prior convictions for violent felonies; and (3) the murder was committed while the defendant was engaged in the commission of a sexual battery. The trial court found the following statutory mitigating circumstances pursuant to section 921.141(6)(h), Florida Statutes (1997):(1) disruptive home life and child abuse (given significant weight); (2) hard-working employee (given significant weight); and (3) mental health problems that did not reach the level of section 921.141(6)(b), Florida Statutes (1997) (given great weight). The trial court also considered seventeen nonstatutory miti-gators. Because many were subsumed within the statutory mitigation and thus already considered, the trial court considered the following remaining nonstatutory mitigators: (1) lack of long-term psychiatric care (no weight); (2) marital problems and situational stresses (great weight); (3) errors of judgment under stress (no additional weight); (4) model prison inmate (some weight); and (5) entered prison at a young age (given little weight). The trial court ordered and adjudicated Grim guilty of first-degree murder and sentenced him to death. The court also found Grim guilty of sexual battery upon a person twelve years of age or older with the use of a deadly weapon and sentenced him to 390.5 months in state prison to run consecutively to the death sentence.

APPEAL

On appeal Grim raised three claims of error. In his initial issue on appeal, Grim argues two subissues. First, he contends that despite the mitigation presented to the trial court, it erred by giving great weight to the jury’s recommendation even though the jury was never presented mitigation in the penalty phase. Second, he asserts that the trial court should have required special counsel to present mitigation evidence to the penalty phase jury notwithstanding the defendant’s knowledgeable waiver. We disagree on both subissues.

In Muhammad v. State, 782 So.2d 343 (Fla.), cert. denied, 534 U.S. 836, 122 S.Ct. 87, 151 L.Ed.2d 49 (2001), and cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 L.Ed.2d 241 (2001), the defendant Muhammad discharged his penalty phase counsel and did not present any mitigating evidence. In its instructions to the penalty phase jury, the trial court stated that “[y]our advisory sentence as to what sentence should be imposed on this Defendant is entitled by Law and will be given great weight by this Court in determining what sentence to impose in this case.” Id. at 363 n. 9. Thereafter the jury returned a recommended sentence of death. At the sentencing hearing, the trial court considered mitigating circumstances contained in the presentence investigation report which were not presented to the jury. The trial court imposed a death sentence indicating in its sentencing order that “[t]his Court must give great weight to the jury’s sentencing recommendation.” Id. at 362. This Court reversed for a new penalty phase and found that “the trial court erred when it gave great weight to the jury’s recommendation in light of Muhammad’s refusal to present mitigating evidence and the failure of the trial court to provide for an alternative means for the jury to be advised of available mitigating evidence.” Id. at 361-62.

In the present case, the State introduced evidence of aggravating circumstances in the penalty phase; however, Grim did not present any mitigating evidence. During the Koon hearing, the trial judge specifically warned Grim that he, as the sentencing judge, must give great weight to any recommendation by the jury. The trial court also instructed the jury that its advisory sentence would be given great weight. Thereafter, the jury returned a recommendation of death.

In its sentencing order the trial court recognized, unlike the trial court in Muhammad, that the penalty phase jury did not have the benefit of hearing mitigation:

First, as a general matter of law, a jury’s recommendation of life or death must be given great weight. The jury in this case unanimously recommended death, but it did not have the benefit of receiving mitigating evidence from the Defendant or the benefit of his counsel arguing the evidence and applicable law.

Moreover, the trial judge considered two separate paths in sentencing Grim. In considering the jury’s recommendation, the judge recognized and considered the fact that in making its recommendation the jury did not have the benefit of hearing mitigating evidence. The judge therefore independently weighed the aggravating and mitigating circumstances as noted in his sentencing order:

Thus, in reaching its sentencing decision, this Court has assiduously followed the two separate paths recognized by law. It has duly considered the jury recommendation. But it has also independently weighed the aggravating and mitigating circumstances. Both paths have led to the same point.

We find this case distinguishable from Muhammad and conclude that the trial court properly sentenced Grim despite the lack of mitigation presented for the jury’s consideration in the penalty phase.

In the second subissue, Grim asserts that the trial court should have required special counsel to present mitigating evidence to the penalty phase jury notwithstanding the defendant’s vocal objection. In Hamblen v. State, 527 So.2d 800 (Fla.1988), we determined that a defendant cannot be forced to present mitigating evidence during the penalty phase of the trial. We reasoned that “all competent defendants have a right to control’ their own destinies” within the ambit of the rights, responsibilities, and procedures set forth in the constitution and statutes. Id. at 804. We therefore continue to hold that a trial court should not be required to appoint special counsel for purposes of presenting mitigating evidence to a penalty phase jury if the defendant has knowingly and voluntarily waived the presentation of such evidence. See Nixon v. Singletary, 758 So.2d 618, 625 (Fla.) (“[T]he defendant, not the attorney, is the captain of the ship.”), cert. denied, 531 U.S. 980, 121 S.Ct. 429, 148 L.Ed.2d 437 (2000); Koon v. Dugger, 619 So.2d 246 (Fla.1993); Farr v. State, 621 So.2d 1368 (Fla.1993).

In his second issue on appeal, Grim asserts that the trial court abused its discretion in failing to call Dr. James Larson as its own witness to establish two mental statutory mitigating factors in light of defense counsel’s proffered evidence that Dr. Larson’s testimony could establish those mitigators. We disagree.

Mitigating evidence must be considered and weighed when contained “anywhere in the record, to the extent it is believable and uncontroverted.” Robinson v. State, 684 So.2d 175, 177 (Fla.1996). This duty extends to cases where the defendant argues in favor of the death penalty or where the defendant asks the trial court not to consider mitigating evidence. See Farr, 621 So.2d at 1369. “[T]he trial judge must carefully analyze all the possible statutory and nonstatutory mitigating factors against the established aggravators to ensure that death is appropriate.” Robinson, 684 So.2d at 177. If a defendant chooses not to submit proof of mitigating circumstances, the trial court is not required to accept potential mitigating circumstances as proven based on defense counsel’s proffer of evidence. See Chandler v. State, 702 So.2d 186, 199-201 (Fla.1997). Proffered evidence is merely a representation of what evidence the defendant proposes to present and is not actual evidence. See State v. Warner, 721 So.2d 767, 769 (Fla. 4th DCA 1998) (“[A] proffer is not evidence .... ”), approved on other grounds, 762 So.2d 507 (Fla.2000). Because Grim waived the presentation of mitigation during the penalty phase in the present case, we conclude that he cannot complain on appeal that the trial court abused its discretion by not calling Dr. Larson as its own witness to testify relative to two possible mental statutory mitigators. See LaMarca v. State, 785 So.2d 1209 (Fla.), cert. denied, 534 U.S. 925, 122 S.Ct. 281, 151 L.Ed.2d 207 (2001) (holding that the trial court properly declined to evaluate proffered mitigation evidence during sentencing because the defendant had waived the presentation of mitigating evidence).

In his third issue on appeal, Grim asserts that the trial court abused its discretion and violated his due process rights when it refused to allow him to present his only defense — the victim’s hearsay statements to Jan Wallace and Charles Worrel demonstrating that someone else could have killed Cynthia Campbell. We disagree.

Before trial, defense counsel filed a notice of intent to introduce victim hearsay statements and a supporting memorandum of law. The trial court denied the motion by written order and found the proffer insufficient to establish that the victim’s statements to Wallace qualified as an excited utterance. The court also found no other hearsay exception applicable and noted that threats to the victim by a third person were inadmissible in the absence of other evidence tending to connect such person to the crime.

Wallace’s proffered testimony demonstrated that she was employed by the victim as her paralegal for a week and a half in the early summer of 1998. Sometime during that week, the victim Campbell was supposed to have met with representatives from Henry Company Homes. Upon her return from this meeting, Campbell appeared upset and told Wallace that one of the people she was supposed to meet had not shown up and that she had been forced to crawl into the attic to inspect a crack and had gotten sweaty, hot, and dirty. Campbell also reported to Wallace that the person who was in the attic with her told her she was “putting her nose where it didn’t belong, and she was going to find herself dead in the bay if she continued.” Campbell then told Wallace, “If I ever end up dead in the bay, point your finger at Henry Homes.” Wallace testified that Campbell did not appear to be upset by the threat and laughed it off. Wallace was not sure how much time had elapsed between the threat and the victim’s statements to her and that she was not sure of the identity of the person who was present at the meeting, or whether that person was an employee or representative of Henry Company Homes. The trial court adhered to its previous ruling and denied the admissibility of the hearsay statements.

Before the State rested in the guilt phase, defense counsel proffered the testimony of Charles Worrell who stated that Campbell represented him in litigation against Henry Company Homes. Worrell testified that Campbell told him that threats had been made against her life as the result of her litigation against Henry Company Homes, that he had not heard any threats personally, and that Campbell did not identify by name anyone who had been threatening her. The trial court denied the admission of Campbell’s hearsay statements to Worrell.

Even though the trial court did not allow the testimony of Wallace or Worrell, it permitted defense counsel to cross-examine Corporal Davis before the guilt phase jury relative to his investigation of information that Henry Company Homes had threatened the victim. Defense counsel asked Davis if he recalled a report indicating that Henry Company Homes might have been responsible for Cynthia Campbell’s death. Davis answered affirmatively and testified that Detective Wiggen, who investigated the report, found no merit to the report. Davis testified that he did not personally conduct the investigation and had no further knowledge of it.

Appellate defense counsel conceded at oral argument and we agree that the proffered testimony of Wallace and Worrell was insufficient to establish the prerequisites for admitting the victim’s statements as an excited utterance, a spontaneous statement or as a statement relating to the declarant’s state of mind. See Stoll v. State, 762 So.2d 870 (Fla.2000). No other justification appears for admitting this testimony. Defense counsel presented nothing other than hearsay reports that the victim had been threatened by representatives or employees from Henry Company Homes, Inc. There was no identification of the person or persons who made these threats, and no other evidence that implicated Henry Company Homes, Inc., or otherwise connected the company to Campbell’s murder.

We reject Grim’s contention that the hearsay testimony was reliable and thus should have been admitted for the purpose of establishing that someone other than Grim committed the murder. Grim’s claim relies upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); however, he fails to recognize that in Chambers, the court held that the hearsay statements of a third person who orally confessed to the murder should have been admitted because the statements’ reliability was clearly established. Id. at 300-01, 93 S.Ct. 1038; see also Sliney v. State, 699 So.2d 662 (Fla.1997); Lightbourne v. State, 644 So.2d 54 (Fla.1994). The same cannot be said for the hearsay statements at issue. Moreover, the trial court did, in fact, allow the defense to present evidence through Detective Davis’s cross-examination that someone else could have possibly killed Campbell. We therefore conclude that the trial court did not abuse its discretion or violate Grim’s due process rights when it denied the admission of the hearsay statements.

PROPORTIONALITY

Grim did not raise insufficiency of the evidence or proportionality on appeal. However, based on our independent obligation to review the record, we find the evidence sufficient to support each conviction. We further conclude that the death penalty is proportional. See, e.g., Darling v. State, 808 So.2d 145 (Fla.2002) (finding death sentence proportional where murder was committed while defendant was engaged in the commission of the crime of armed sexual battery, defendant had been previously convicted of felony involving the use or threat of violence to the person, and record did not support a finding of immaturity or significant mental deficiency); Bryant v. State, 785 So.2d 422 (Fla.), cert. denied, 534 U.S. 1025, 122 S.Ct. 557, 151 L.Ed.2d 432 (2001) (finding the sentence of death proportional where three aggravated of prior convictions for violent felonies, murder committed while engaged in the commission of a robbery, and avoidance of a lawful arrest or effecting an escape from custody outweighed the non-statutory mitigator of remorse); Pope v. State, 679 So.2d 710 (Fla.1996) (holding death penalty proportional where two aggravating factors of murder committed for pecuniary gain and prior violent felony outweighed two statutory mitigating circumstances of commission while under influence of extreme mental or emotional disturbance and impaired capacity to appreciate criminality of conduct and several nonstatutory mitigating circumstances); Melton v. State, 638 So.2d 927 (Fla.1994) (holding death penalty proportional where two aggravating factors of murder committed for pecuniary gain and prior violent felony outweighed some nonstatutory mitigation); Heath v. State, 648 So.2d 660 (Fla.1994) (affirming defendant’s death sentence based on presence of two aggravating factors of prior violent felony and murder committed during course of robbery, despite the existence of the statutory mitigator of extreme mental or emotional disturbance).

On rehearing, Grim has asserted that Florida’s capital sentencing scheme violates the United States Constitution under the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, — U.S. -, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, — U.S. -, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and denied relief. We likewise find that Grim is not entitled to relief on this claim. The aggravating circumstances which were present in this case included multiple convictions for prior violent felonies and a contemporaneous felony of a sexual battery, both of which were found unanimously by a jury. Moreover, by a twelve-to-zero vote, the jury recommended that the defendant be sentenced to death.

CONCLUSION

We affirm Grim’s first-degree murder conviction and death sentence. We also affirm his conviction and sentence for sexual battery upon a person twelve years of age or older with use of a deadly weapon.

It is so ordered.

WELLS, LEWIS, and QUINCE, JJ., and SHAW and HARDING, Senior Justices, concur.

PARIENTE, J., concurs specially with an opinion.

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

PARIENTE, J.,

specially concurring.

I concur in affirming the conviction and sentence. I write separately to add that in accordance with my concurrence in Muhammad v. State, 782 So.2d 343, 368-72 (Fla.2001), I would adopt a uniform procedure requiring the appointment of special counsel to present available mitigation:

Because of the tremendous responsibilities placed on the trial court and this Court in death penalty cases, rather than leave the appointment of counsel to the trial court’s discretion on a case-by-case basis, I would thus adopt a prospective rule that would provide for the appointment of special counsel to present available mitigation for the benefit of the jury, the trial court and this Court in order to assist the judiciary in performing our statutory and constitutional obligations. This procedure, of course, would not prevent the defendant himself or herself from arguing in favor of the death penalty.

Id. at 370 (emphasis supplied). Nevertheless, in this case I agree that a reversal of the death sentence is not warranted because, unlike Muhammad, the trial court acknowledged that the jury did not have the benefit of the presentation of mitigating evidence and, unlike Muhammad, the trial court did appoint special counsel, who presented mitigating evidence to the trial court that the trial court weighed in its sentencing decision.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I concur in the majority’s opinion in all respects except for the discussion and resolution of the Ring issue.

      . Deputy McCauley testified that it was blood.

      . This hearing was a continuation of the Koon hearing conducted before the jury was chosen.

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

      . Even though the trial judge in the present case was not required to comply with the procedures enunciated in Muhammad due to the fact that Grim’s trial was completed before the Muhammad case was decided, we commend the trial judge for his insight in handling Grim’s waiver of mitigation.

      . Even though special counsel was not appointed to present mitigation during the penalty phase, the trial court did, in fact, appoint special counsel to present mitigation during the sentencing hearing.

      . The two statutory mitigators were: (1) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; and (2) the capacity of the defendant to conform his or her conduct to the requirements of law was substantially impaired.

      . An excited utterance is "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. (1999).

      . A spontaneous statement is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness." § 90.803(1), Fla. Stat. (1999).

      .Section 90.803(3), Florida Statutes (1999), provides for admission of testimony as to the following matters:
      (3) Then-existing mental, emotional, or physical condition.—
      (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
      1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.

        2. Prove or explain acts of subsequent conduct of the declarant.
      (b) However, this subsection does not make admissible:
      1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.
      2. A statement made under circumstances that indicate its lack of trustworthiness.


source: Caselaw Access Project

author: FLETCHER, Judge.

license: Public Domain

text:
    Roberto RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D99-3187.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2002.
    Bennett H. Brummer, Public Defender, and May L. Cain, Special Assistant Public Defender, for appehant.
    Robert A. Butterworth, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before JORGENSON, GODERICH, and FLETCHER, JJ.
   ON REHEARING DENIED

FLETCHER, Judge.

We deny the motion for rehearing herein. However, we withdraw our prior opinion of June 20, 2001 and substitute the following opinion:

Roberto Ruiz was charged by information with two counts of sexual battery, burglary of an occupied dwelling with intent to commit an offense therein, and kidnaping with intent to commit or facilitate the sexual battery. The court denied defense motions for judgment of acquittal on the kidnaping and burglary charges, and a jury found Ruiz guilty of misdemeanor battery (as a lesser included offense of the sexual battery charges), burglary with assault or battery, and kid-naping.

Ruiz argues that, pursuant to Delgado v. State, 776 So.2d 233 (Fla.2000), his conviction for burglary must be reversed because he entered the victim’s apartment with her permission. Following Delgado, we agree that the trial court erred by denying appellant’s motion for judgment of acquittal on the burglary charge because there exists sufficient evidence in the record that entry was consensual and that Ruiz did not surreptitiously remain in the apartment. See, Delgado at 240. The record indicates that the jury was erroneously instructed that it could find Ruiz guilty of burglary even if the initial entry was consensual and if the victim later withdrew consent. Once Ruiz met his burden of establishing consensual entry into the home, and showed that he did not remain surreptitiously, the evidence was then insufficient to establish burglary. Delgado, 776 So.2d 233.

We reverse the conviction for burglary, affirm the remaining convictions, and remand for proceedings consistent with this opinion.

      . We are aware of the creation of section 810.015, Florida Statutes (2001) by which the legislature has expressed its disagreement with Delgado. However, see Braggs v. State, 815 So.2d 657(Fla. 3d DCA 2002). As in Braggs we certify that we have passed on the following question of great public importance:
      WHETHER SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, HAS LEGISLATIVELY OVERRULED DELGADO v. STATE, 776 So.2d 233 (Fla.2000), FOR CRIMES COMMITTED ON OR BEFORE JULY 1, 2001?

      . Consensual entry is an affirmative defense to burglary under Delgado.


author: LEVY, Judge.

text:
    The STATE of Florida, Appellant, v. Frank HERNANDEZ, Appellee.
    No. 3D02-324.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.

      Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellee.
    Before JORGENSON, LEVY, and GREEN, JJ.
   LEVY, Judge.

The State of Florida appeals from a trial court order granting Defendant’s Motion to Suppress Lineup, Showup, Photograph, Other Pre-Trial Confrontation and Courtroom Identification. We reverse.

On February 9, 1999, Manuela Valdez was looking out the window of her second floor apartment when she saw a man jump a fence and force open the patio door of her neighbor’s first-floor residence. She left the window, caused the police to be notified, and returned to the window in time to see the man exit her neighbor’s residence and jump a fence closer to the street. According to Ms. Valdez, the perpetrator was Caucasian, of medium height and build, not obese, and wearing a white T-shirt with short sleeves. At the hearing on the Motion to Suppress, she testified that she did not see the perpetrator’s face but that she did see his profile.

The police arrived about three minutes later. One of the responding officers testified that he chased after the Defendant, and two of the responding officers testified that they yelled “police” and told Defendant to stop, but Defendant did not stop. After apprehending the Defendant, the police drove the Defendant back to the scene of the break-in to have Ms. Valdez identify him. The Defendant was taken out of the vehicle in handcuffs, and Ms. Valdez identified him from 100 feet away. The Defendant was charged by Information with burglary of an unoccupied dwelling, petit theft, criminal mischief, possession of burglary tools, and resisting an officer without violence.

On December 21, 2000, the Defendant filed a “Motion to Suppress Lineup, Show-up, Photograph, Other Pre-Trial Confrontation, and Courtroom Identification.” The following is the text of the Motion:

THE DEFENDANT, through undersigned counsel, respectfully moves this court to suppress as evidence at the trial: (1) any and all pre-trial identifications of the defendant in police lineups, photographs, showups, or any other confrontations, and (2) all courtroom identifications of the defendant. As grounds for this motion, the defendant states:
1. The lineup, showup, photograph, and other pre-trial identifications of the defendant were obtained by police in violation of the defendant’s right to counsel guaranteed by the Sixth Amendment and Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2. The lineup, showup, photograph, and other pre-trial identifications of the defendant were obtained through procedures which were so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law in violation of the defendant’s rights guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by Article I, Section 9, of the Florida Constitution.
3. The line-up, showup, photographs and other pre-trial identifications of the defendant were obtained by the police in violation of the defendant’s right against unreasonable search and seizure guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and by Article I, Section 12, of the Florida Constitution.
4. The courtroom identifications of the defendant constitute the “fruit of the poisonous tree” of the prior unconstitutionally conducted pre-trial identifications of the defendant and are accordingly tainted with the same constitutional objections stated in paragraphs 1, 2 and 3.
WHEREFORE, the defendant moves this court to enter its order suppressing all pre-trial identifications of the defendant and to prohibit the State from eliciting from the alleged victims an in-court identification of the defendant at trial of the above-styled cause.

At the hearing on the Motion, the State argued that the motion was legally insufficient because it failed to state the particular evidence to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion was based, as required by Florida Rule of Criminal Procedure 3.190(h)(2). We agree and conclude that the trial court should have denied the motion pursuant to Florida Rule of Criminal Procedure 3.190(h)(3).

Florida Rule of Criminal Procedure 3.190(h)(2) states that “[e]very motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based.” Fla. R.Crim. P. 3.190(h)(2); see also State v. Gibson, 670 So.2d 1006, 1008 n. 2 (Fla. 2d DCA 1996); Chapman v. State, 446 So.2d 1186, 1187 (Fla. 4th DCA 1984); Herring v. State, 394 So.2d 433, 433 (Fla. 3d DCA 1980). Furthermore, Florida Rule of Criminal Procedure 3.190(h)(3) requires the trial court, before hearing evidence, to determine if the motion to suppress is legally sufficient, and to deny the motion if the motion is not legally sufficient. See Fla. R.Crim. P. 3.190(h)(3).

In the instant case, the foregoing Motion to Suppress is legally insufficient because it is devoid of any statement regarding the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of facts on which the motion is based. As correctly stated by the prosecutor to the trial court, “it is more or less a boilerplate motion ... ”.

As an entirely separate matter, we also hold that the out-of-court identification at issue in the instant case is admissible. The two-part test to determine whether an out-of-court identification may be admitted is (1) whether the police used an unnecessarily suggestive procedure to obtain an out-of-court identification, and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentifieation. See Green v. State, 641 So.2d 391, 394 (Fla.1994) (citing Grant v. State, 390 So.2d 341, 343 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981)). In the instant case, although the procedure utilized by the police involved taking the Defendant back to the scene of the break-in to be identified by Ms. Valdez, it was nevertheless a “show-up”.

According to the Florida Supreme Court, a show-up is inherently suggestive because a witness is presented with only one suspect for identification, but the procedure is not invalid if it did not give rise to a substantial likelihood of irreparable misidentification under the totality of the circumstances. See Blanco v. State, 452 So.2d 520, 524 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). The factors to be considered in evaluating the likelihood of misidentification “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ pri- or description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Here, the Record indicates that Ms. Valdez saw the Defendant enter her next door neighbor’s home, and that the only times when she lost sight of the Defendant were when the Defendant was in the neighboring house and when the Defendant jumped the fence in an attempt to flee the area. The Record further demonstrates that Ms. Valdez identified the Defendant through the show-up procedure within minutes after the Defendant fled the scene. Based on the foregoing factors, and the circumstances of the identification, we conclude that there was not a substantial likelihood of irreparable misidentification and, thus, the identification is admissible. Accordingly, we reverse and remand to the trial court with instructions to deny the Motion to Suppress.

Reversed and remanded, with instructions.


author: SHEVIN, Judge. GREEN, J.

text:
    Michael R. BARNES, Appellant, v. David Paul HORAN, Karen Horan, Edward W. Horan, David Paul Horan, P.A., and Edward W. Horan, P.A., Appellees.
    No. 3D01-2472.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.
    Rehearing, Rehearing En Banc and Certification Denied March 28, 2003.

      Michael R. Barnes (Key West); Richard L. Wilson (Orlando), for appellant.
    Horan, Horan & Wallace, and David Horan (Key West), for appellees.
    Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge.
   SHEVIN, Judge.

Michael Barnes appeals an Order Striking Plaintiffs Second Amended Complaint and Dismissing Action with Prejudice. On the following analysis, we reverse.

Two days before the 16th Judicial Circuit State Attorney election, David Horan ran a paid political advertisement, entitled “An Apology to the Citizens of the Florida Keys”, published in the Key West Citizen. The letter concerned candidate Barnes, who had been a Horan & Horan employee. The publication was printed on Horan & Horan stationery and signed by attorney David Horan. The following is the text of the letter:

For 30 years I have had the privilege of practicing law in the Keys. I have not, and will not, run for political office. As a former prosecutor, Assistant County Attorney, Special Counsel for the City of Key West, Chairman of the Military Affairs Committee and immediate past President of the Greater Key West Chamber of Commerce, I am acutely aware of how important our political office holders are to our county. It is for this reason I am publishing this apology/explanation.
In late 1990, my firm decided to add an additional associate/attorney, and I was introduced to Michael “Mick” Barnes by a former professor for whom I had a ’great deal of respect. Mr. Barnes was about to graduate from law school. After his initial office interview, my brother/law partner expressed doubts about Mr. Barnes, and my secretary/wife expressed even stronger concerns, advised me against offering him a position in our firm. I’m apologizing to everybody for not following their advice. For a period of three (3) months “Mick” Barnes was an employee of my firm. Toward the end of his employment, every secretary, book-keeper, partner and associate became convinced that Mr. Barnes’ employment had to be terminated. Because of numerous contradictory misrepresentations by Mr. Barnes’ to everyone in the firm (including myself), not one person in my firm could, or would, trust him to tell the truth.
Mr. Barnes has stated that he has practiced law for 11 years but he was not sworn into the Florida Bar until October 18, 1991. In his July 2000 Public Disclosure Statement (filed with our Supervisor of Elections), Mr. Barnes was forced to disclose that having practiced law for nearly ten (10) years, he still owes his student loan of nearly $28,000.00. In his Financial Disclosure, Mr. Barnes shows his real estate assets as being $825,000 and then disclosed his liabilities as including $162,838 to Fleet Mortgage and $129,324 to Stillwater National Bank. While one could assume these are mortgages on his real estate, such is not the case.
The disclosure of $129,324 liability to the Stillwater National Bank-made by “Mick” Barnes, under oath on July 17th, 2000 was false and Mr. Barnes knew it. The Stillwater Bank obtained a personal judgment against Mr. Barnes on January 5th, 1996 ... “against the Defendant Michael R. Barnes, in the sum of $129,324.21, with interest thereon at the rate of 8.5% per annum from the 5th day of January 1996 until paid; plus attorneys fees in the sum of $15,500.00 and costs accrued and accruing.” This language is directly from the District Court Order.
Only July 17th, 2000, when Mr: Barnes swore his liability to Stillwater National Bank was $129,324.21, he left out $50,382.23 in accrued interest and the $15,500.00 in attorney fees. Mr. Barnes’ true liability on this one Judgment is over $195,000.00 and he has failed to pay a penny on it for nearly 5 years. His net worth was overstated by 54%.
Mr. Barnes’ conduct in Court has earned him somewhat unanimous disdain and contempt from most of the Monroe County attorneys and nearly all of our Judges. The Code of Judicial Conduct prohibits Judges from publishing their opinions regarding “Mick” Barnes, but attorneys are under no such prohibition. Mr. Barnes is not a viable candidate for our State Attorney. For 30 years I have built credibility within this community, with my clients and our courts. Since I have a longer personal and professional relationship with Michael “Mick” ‘Barnes than any other Monroe County citizen, I am asking that you give my informed opinion credibility for purposes of your upcoming decision and vote.
The Florida Keys deserve better than “Mick” Barnes. The taxpayers should not have to pay his student loan or his judgement.

(emphasis in original).

Barnes lost the election. He thereafter filed a defamation and conspiracy action against David Horan, Karen and Edward Horan, individually, as well as David and Edward’s P.A., and Horan & Horan, a partnership. Barnes’ first amended complaint was based on four claimed false statements appearing in the ad:

a) Toward the end of his employment, every secretary, bookkeeper, partner and associate became convinced that Mr. Barnes’ employment had to be terminated. Because of numerous contradictory misrepresentations by Mr. Barnes to everyone in the firm (including myself), not one person in my firm could, or would trust him to tell the truth;
b) Mr. Barnes was forced to disclose that having practiced law for nearly ten (10) years he still owes his student loan of nearly $28,000.00;
c) The disclosure of $129,324 liability to the Stillwater National Bank, made by “Mick” Barnes, under oath on July 17, 2000 was false and Mr. Barnes knew it; and
d) Mr. Barnes’ conduct in court has earned him somewhat unanimous disdain and contempt from most of the Monroe County Attorneys and nearly all of our judges.

Barnes’ complaint also alleged that Edward Horan sent a defamatory email to another attorney, which evidenced Edward’s complicity in the publication of the letter.

The defendants filed motions to dismiss. The court entered an omnibus order granting the business entities motion; denying David, Karen, and Edward’s motion as to the conspiracy count; ruling that statements (a) and (d) of the first amended complaint were not actionable as defamatory; and permitting discovery. The court denied Barnes’ motion for rehearing. The court entered an order on amended motion granting Barnes ten days to file a second amended complaint against the business entities.

Barnes filed a second amended complaint. However, despite the findings in the trial court’s omnibus order, Barnes used the second amended complaint to reassert claims (a) and (d), the two claims that the court had previously rejected as a basis for recovery, and dropped claims (b) and (c), the two claims on which the trial court had concluded that the case could proceed. The defendants filed a motion to strike the pleadings. A hearing on the motion was held on July 26, 2001.

At the hearing, David Horan maintained that the trial court should strike the complaint and dismiss for noncompliance with the omnibus order. Barnes told the court that if it dismissed with prejudice, he could appeal the points raised in the second amended complaint, including the points the trial court had initially rejected. David Horan maintained that the time for appeal of the rejected points was when the court had ruled that the defamation action could not rest on those points and when Barnes’s motion for rehearing of those rulings had been denied. Thus, according to Horan, the time to seek review of the rejected points had passed. He argued that the court could dismiss the second amended complaint even without finding wilful noncomplianee.

A reading of the July 26, 2001, transcript shows that the trial court was confused as to the effect an order dismissing the action would have. The judge was troubled that under David Horan’s analysis, he was not sure how Barnes could have gotten appellate review of the court’s rulings as to the rejection of the two allegedly defamatory statements, upon which Barnes wanted to proceed. Finally, the trial judge concluded that he was granting the motion to strike, but specifically said he was not making a finding of wilfulness or contempt, observing “[a]nd to the extent the parties will bring the case to the Appellate Court, I will welcome it and God speed.”

The order under review specifically provided that the judge had considered the file, the motions and responses, and oral arguments of the parties. Then, in a two sentence adjudication, the court granted the motion to strike and denied further amendment. Additionally, the court dismissed the action with prejudice. Our review of the record leads us to the inescapable conclusion that the trial judge struck the complaint not because he found a violation of a court order that deserved this severest of sanctions, but rather, because with the two claims he had decided had no merit stricken, and the plaintiff having abandoned his other claims, the plaintiff had no other basis to proceed.

Initially, we note that we do not agree with David Horan’s claim that the time for review of the two claims at issue has passed. Because all of the claims involved relate to a specific publication, the claims are intertwined and would not have been reviewed had Barnes attempted to appeal those intermediate rulings while the matter proceeded. In dismissing the action, the trial judge’s statements reflect that he was doing so because all of the claims had been stricken. The dismissal with prejudice marked the end to litigation and allows our review of the case.

In this posture, the only way we can decide if the trial court erred in striking the second amended complaint is to determine whether the claims as stated can support an action for defamation. Barnes maintains that the statements are of a specific type in that they imply undisclosed facts. In assessing such a claim, we must consider the law as set out in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), and reflected in this court’s opinion in Stembridge v. Mintz, 652 So.2d 444, 446 (Fla. 3d DCA 1995), wherein we observed:

In Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983), this court followed [Restatement(Second) of Torts] section 566 and summarized the applicable principles:
[Statements of pure opinion cannot constitute actionable defamation. However, a statement that although ostensibly in the form of an opinion “implies the allegation of undisclosed defamatory facts as the basis for the opinion,” Restatement (Second) of Torts § 566 (1977), is actionable. The difference between the former, unae-tionable, pure opinion and the latter, sometimes called “mixed opinion,” is that:
“Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener as a member of the public. Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the article or assumed to exist by the parties to the communication.”
From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981)
It is the court’s function to determine from the context “whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct....” Restatement (Second) of Torts § 566, comment c. If [defendant’s] statement would likely be reasonably understood by ordinary persons as a statement of an undisclosed existing defamatory fact, then it was properly the jury’s function to determine whether a defamatory meaning was attributed to it by recipients of the communication. ...

Stembridge, 652 So.2d at 446 (citations omitted).

Barnes maintains that applying this standard to the instant occurrence, he has alleged sufficient facts to proceed on a claim that the statements at issue were defamatory under the Milkovich standard. We agree.

As the trial court agrees that statements (b) and (c) are actionable, we need only address statements (a) and (d). Once again, in statement (a) David Horan asserted that “every secretary, bookkeeper, partner and associate became convinced that Mr. Barnes’ employment had to be terminated. Because of numerous contradictory misrepresentations by Mr. Barnes to everyone in the firm (including myself), not one person in my firm could, or would trust him to tell the truth.” The content of statement (a) does more than merely state the author’s opinion. Rather, it implies to the reader that David Horan, through his relationships with the people in his firm, has acquired knowledge of the fact that the plaintiffs former co-workers thought he was a liar who could not be trusted. The impression that Horan was privy to the views of the people in his firm is further emphasized by the fact that the letter was printed on Horan & Horan stationery. The alleged falsity of this statement can be verified by receiving sworn testimony from the employees and other firm members to whom these beliefs were ascribed.

Similarly, statement (d) gives the impression of an insider’s knowledge of undisclosed facts. , In statement (d), Horan claims that “Mr. Barnes’ conduct in court has earned him somewhat unanimous disdain and contempt from most of the Monroe County Attorneys and nearly all of our judges.” Considering that the article also explains that in addition to being Barnes’ former employer, Horan was a “former prosecutor, Assistant County Attorney, Special Counsel for the City of Key West, Chairman of the Military Affairs Committee and immediate past President of the Greater Key West Chamber of Commerce,” it is likely that an ordinary reader would conclude that David Horan was someone who would have insight into whether the plaintiff had in fact earned the “somewhat unanimous disdain and contempt from most of the Monroe County Attorneys and nearly all of [the] judges.” As with statement (a), the falsity of this statement can be verified by receiving sworn testimony from the people to whom the feelings of disdain and contempt have been attributed, namely the attorneys and judges of Monroe County.

The implication that Mr. Horan had knowledge of undisclosed facts is further buttressed by the remarks immediately following statement (d), in which he states:

For 30 years I have built credibility within this community, with my clients and our courts. Since I have a longer personal and professional relationship with Michael “Mick” Barnes than any other Monroe County citizen, I am asking that you give my informed opinion credibility for purposes of your upcoming decision and vote.

(emphasis added). Mr. Horan’s self-proclamation that his opinion is informed, placed almost immediately following statement (d), leads to the unavoidable conclusion that his sentiments are based on undisclosed facts.

Therefore, although we voice no opinion on the ultimate merits of Barnes’ claim, we do believe that he has alleged a sufficient factual basis to proceed in his prosecution of the matter.

Accordingly, the order under review is reversed, and the matter remanded for the plaintiff to proceed under his second amended complaint.

NESBITT, Senior Judge, concurs.

GREEN, J.

(specially concurring).

I agree with the majority that the allegations contained in the second amended complaint, taken as true, state a cause of action for defamation, but I write separately because, unlike the majority, I believe that this case is governed by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny rather than Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).

The appellant in this case, Mr. Barnes, was a candidate for public office, Monroe County State Attorney, and therefore was a “public figure.” See Monitor Patriot Co. v. Roy, 401 U.S. 265, 271, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971)(finding that a candidate for public office is characterized as a public official or public figure). The statements complained of in the second amended complaint were regarding plaintiffs “qualifications” to hold public office and therefore were matters of public concern. See e.g., Demby v. English, 667 so.2d 350 (Fla. 1st DCA 1995)(allegedly defamatory letter regarding job performance of public official was matter of public concern). Thus, a brief discussion of the evolution of the law regarding “public figures” or “pub-lie officials” and matters of “public concern” is warranted.

In New York Times, the Supreme Court enunciated:

a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is with knowledge that it was false or with reckless disregard of whether it was false or not.

376 U.S. at 279-80, 84 S.Ct. 710. This rule was formed out of the Court’s concern that a “state law rule compelling the critic of official conduct to guarantee the truth of all his factual assertions would deter protected speech.” Gertz v. Robert Welch Inc., 418 U.S. 323, 334, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Later, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the high court extended the New York Times test to criticisms of “public figures,” as well as “public officials.” The Court concluded that for both “public officials” and “public figures,” “actual malice” must be shown by a clear and convincing standard of proof. See Gertz, 418 U.S. at 342, 94 S.Ct. 2997; see also Nodar v. Galbreath, 462 So.2d 803, 806 (Fla.1984) (stating that: “ ‘actual malice,’ which must be shown before a public official or public figure may recover for defamation relating to a matter of his official conduct or of public concern, consists of knowledge of falsity or reckless disregard of truth or falsity, and must be shown by clear and convincing evidence.”).

In Gertz, the Supreme Court declined to extend the New York Times rule to private persons defamed by media publications or broadcasts or commentaries on matters of public interest. As the court explained:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.
[More important] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual.

Gertz, 418 U.S. at 344-45, 94 S.Ct. 2997.

Accordingly, the Gertz court held that states may establish their own standards of responsibility of news media defendants to defamed private persons, as long as they neither impose liability without fault or award presumed damages in the absence of actual malice.

Next, in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), the court found that at least where a media defendant is concerned, an actionable statement on matters of public concern must be provable as false by the plaintiff before there can be liability under state defamation law. The Hepps court limited its holding to cases involving media defendants and left open the question of the standard for non-media private defendants raising statements of public concern about public figures. This is precisely the issue presented here. That is, this case raises the question of the applicable standard for an alleged defamed public official by a private defendant on matters of great public concern.

In the absence of any direct precedent from either the United States Supreme Court or Supreme Court of Florida on this issue, I believe that at the very minimum, the standard set forth in the New York Times line of cases, requiring actual malice, must govern. See Milkovich, 497 U.S. at 20 n. 6, 110 S.Ct. 2695 (“[p]rior to Hepps, ... where public official or public figure plaintiffs were involved, the New York Times rule already required a showing of falsity before liability could result.” (citations omitted)).

Since actual malice requires more than the mere publication of a falsity, I believe that footnote 6 of the majority’s opinion is misplaced. The ultimate issue here is not whether Horan’s statements were false, but rather whether Horan knew or “recklessly disregarded” that his statements were false. See Nodar, 462 So.2d at 806. Thus, it is not necessary, or even desirable, for Barnes to subpoena and depose the attorneys and sitting judges in Monroe County. Moreover, the results of the “opinion poll,” embraced by the majority, could not reliably discern the truth or falsity of Horan’s assertions regarding Monroe County’s judges’ and lawyers’ opinions of Barnes as a lawyer and/or candidate. See, e.g., Ollman v. Evans, 750 F.2d 970, 1006 (D.C.Cir.1984) (a community’s opinion of a plaintiffs stature in the community is incapable of being adjudicated with any expectation of accuracy). (Bork, J., concurring). Accordingly, I believe that such discovery is impermissible and should not be allowed to take place.

Thus, for these reasons, I concur in the reversal of the dismissal of this lawsuit.

      . An amended pleading that is complete in itself and that does not refer to or adopt a former pleading as a part of it supersedes the former pleading. See Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562, 563 (1941)(By the filing of this declaration the plaintiff abandoned the original declaration and it no longer served any purpose in the record).

      . As stated in Kelley v. Schmidt, 613 So.2d 918, 919 (Fla. 5th DCA 1993), the striking of a party’s pleadings resulting in a dismissal or a default is the most severe sanction and it should be used "sparingly and reserved to those instances where the conduct is flagrant, willful or persistent.”

      . At one point in the record, counsel for Barnes asked for dismissal "in a way that all the issues go up on appeal.” The court asked, "What would be necessary to do that?” Barnes responded “I think that dismissal with prejudice is all that is required.” The court immediately thereafter observed: "I think you are entitled to a review, and know that you are all serious about it, and I guess it is a significant issue for the bar.”

      .It is undisputed that as a candidate for public office, Barnes is a public figure. Although Milkovich may be distinguished from the instant case in that Milkovich does not involve a plaintiff who qualifies as a public figure, the analysis contained therein concerning the differences between pure and mixed opinions is still relevant.

      . Although the plaintiff dropped statements (b) and (c) from the second amended complaint, it is within the trial court’s discretion to, upon request, grant the plaintiff leave to amend, so long as it finds that the defendants would not be prejudiced and that the privilege to amend has not been abused. Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001); General Container Serv., Inc. v. William H. McGee & Co., 734 So.2d 570 (Fla. 3d DCA 1999).

      . Mr. Horan has expressed concern that allowing the circuit court judges of Monroe County to be subpoenaed in this case would set a dangerous precedent for potential cases in other circuits in which the testimony of hundreds of sitting judges might be required. As the instant case involves only the relatively small pool of Monroe County judges, we need not address these logistical concerns at this time. Although we sympathize with the trial court’s hesitance to take the unusual step of issuing subpoenas to sitting judges, sometimes the pursuit of justice requires that extraordinary measures be taken.

      . In contrast, the plaintiff in Milkovich was a private high school wrestling coach and the defendant was a newspaper. Since the alleged defamatory statement was made by a media defendant and the case involved a matter of public concern, the court held that the plaintiff was required to show that the false connotations were made with some level of falsity as required by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

      . Hence, in the aftermath of Gertz, the Florida Supreme Court held that a private individual suing a newspaper for libel need only prove negligence rather than actual malice. See Miami Herald Publishing Co. v. Ane, 458 So.2d 239 (Fla.1984).

      . See Hepps, 475 U.S. at 779 n. 4, 106 S.Ct. 1558.

      . Nor may it even be possible for him to question the judges regarding Barnes’ qualifications for public office as the code of judicial conduct prohibits the judges from responding to any such inquiries. See Fla.Code Jud. Conduct, Cannon 7A(l)(b).


author: PER CURIAM.

text:
    Joel CORDOVES, Appellant, v. Emilio ESTEFAN, Jr., Appellee.
    No. 3D01-1972.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.
    Clarification Denied Feb. 5, 2003.
    Joel Cordoves, in proper person.
    Holland & Knight, and Lenore C. Smith, and Peter Prieto, Miami, for appellee.
    Before JORGENSON, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Joel Cordoves appeals the decision of the appellate division of the circuit court affirming a finding of contempt for violating an injunction for protection against repeat violence. We treat his appeal as a petition for writ of certiorari and deny it.


text:
    Verena VONMITSCHKE-COLLANDE and Claudia Miller-Otto, Appellants, v. Thomas KRAMER, et al., Appellees.
    No. 3D02-2133.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Rehearing and Rehearing En Banc Denied March 7, 2003.
    Hunton & Williams and Vance E. Salter, Miami, for appellants.
    Hogan & Hartson and Carol A. Licko and Parker D. Thomson, Miami, for appel-lees.
    Before FLETCHER and RAMIREZ, JJ., and NESBITT, Senior Judge.
   ON MOTION FOB REHEARING

FLETCHER, Judge.

The decision of this court, dated October 2, 2002, is withdrawn and the following is substituted therefor.

The appellants seek reversal of a trial court order which found their lis pendens to have been dissolved and to be of no force and effect. We reverse.

A review of the record reveals the following relevant events:

1. On August 1, 2000, the appellants filed their lis pendens.
2. On November 10, 2000, the underlying case was dismissed. Pursuant to Rule 1.420(f), Florida Rules of Civil Procedure, the dismissal automatically dissolved the lis pendens.
3. The dismissal was timely appealed.
4. On July 2, 2001 appellee Kramer sold a property in question while the appeal was pending.
5. This court reversed the dismissal and reinstated the action, issuing the mandate on December 4, 2001.
6. The Florida Supreme Court denied certiorari on May 28, 2002.

We thus have a situation in which the property was sold on a date (July 2, 2001) when the underlying case was on appeal. The question before us is whether the lis pendens was effective on July 2, 2001 so as to give notice to the parties to the sale. We conclude that the lis pendens was in effect and gave notice of the underlying suit.

The Florida Supreme Court made it abundantly clear that when an underlying case’s dismissal is reversed, the accompanying lis pendens is reinstated. Anyone acquiring an interest between the time of filing of the lis pendens and its reinstatement after appellate review, takes her/his interest in the property subject to the lis pendens. Crown Corp. v. Robinson, 128 Fla. 249, 174 So. 737 (1937).

We also observe that Kramer’s contention that the lis pendens expired because one year had passed while appellate review was taking place is erroneous. Although Section 48.23(2), Florida Statutes (2001) sets up such a time limitation as to actions founded on instruments not “duly recorded”, as is the case here, section 48.23(4) provides that the one year time period is tolled during appellate review.

Accordingly, the lis pendens remains as valid notice of the underlying suit and any buyer takes the property subject to the lis pendens. The trial court’s order dissolving the lis pendens is reversed and the cause is remanded for further proceedings in accordance with this opinion.

      . The underlying action is a suit seeking, inter alia, the imposition of a constructive trust on Kramer’s property.

      . Fla.R.Civ.P. 1.420(f) reads:
      “Effect on Lis Pendens. If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time. The notice, stipulation, or order shall be recorded.”

      . In Crown Corp. the lis pendens was not automatically dissolved, but was dissolved by court order. Here the dissolution of the lis pendens was automatic under Fla.R.Civ.P. 1.420(f). This is a distinction without a difference. Rule 1.420(f) was amended in 1984 to provide for the automatic dissolution in order to resolve unnecessary title problems, not to create new ones. See Court Commentary to 1984 Amendment to the Rule.

      . Section 48.23(2), Florida Statutes (2001) reads:
      "No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.”

      .Section 48.23(4), Florida Statutes (2001) reads:
      "This section applies to all actions now or hereafter pending in any state or federal courts in this state, but the period of time above-mentioned does not include the period of pendency of any action in an appellate court.”


author: CASANUEVA, Judge.

text:
    Julia TOLEDO and Connie Peterson, mother and next friend of Jason Peterson, a minor, Appellants/Cross Appellees, v. HILLSBOROUGH COUNTY HOSPITAL AUTHORITY, Appellee/Cross Appellant.
    No. 2D01-4643.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2003.
    Rehearing Denied April 3, 2003.

      Emmett Abdoney, Tampa, for Appellants.
    Patricia E. Davenport and Richard A. Harrison of Allen, Dell, Frank & Trinkle, Tampa, for Appellee.
   CASANUEVA, Judge.

Julia Toledo and Connie Peterson sued Hillsborough County Hospital Authority operating as Tampa General Hospital (TGH). The court entered summary judgment on three of their asserted claims: a claim for tortious interference with a contractual relationship, a claim for tortious interference with a business relationship, and a claim (count IV) that TGH’s filing a claim of lien under authority granted to it by chapter 80-510, section 17, at 149, Laws of Florida, was tortious. We agree with the trial court’s reasoning as to count IV and affirm. However, we reverse the final summary judgment as to the remaining two counts.

Each plaintiff received medical services at TGH for which billing statements were issued to their respective insurance carriers. The bills to the insurance carriers were discounted, allegedly by thirty percent in one instance. The complaint alleged that TGH would then exercise powers granted to it under chapter 80-510 by filing a lien against the patient in Hillsbor-ough County’s public records in the amount resulting from the total value of the medical services provided by TGH less the sum paid by the patient and her insurance carrier.

Although the plaintiffs’ inclusion of language in counts II and III regarding TGH’s conduct of filing the lien obscured the focus of their ■ tortious interference claims, we believe that the unnecessary and improper language should have been stricken from those counts. In entering summary final judgment the trial court erred.

To plead an action for tortious interference, a plaintiffs complaint must generally set forth four elements as follows: (1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damages to the plaintiff as a result of the breach of the relationship. Chicago Title Ins. Co. v. Alday-Donalson Title Co. of Fla., Inc., 832 So.2d 810, 814 (Fla. 2d DCA 2002) (citing Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985)).

We conclude that after the extraneous language regarding the lien filing is stricken, it is likely that the plaintiffs can properly plead causes of action for tortious interference with a contract (count II), and tortious interference with a business relationship (count III). We remand with instructions to the trial court to enter an order granting the plaintiffs leave to amend these counts. In doing so, we make no observation here as to the merits of the claims but hold only that an opportunity to plead at least once more should be afforded to the plaintiffs.

We affirm the cross-appeal without comment.

Affirmed in part; reversed in part; remanded with instructions.

DAVIS and KELLY, JJ., Concur.


author: FLETCHER, Judge. LEVY, Judge

text:
    Jean Audrey HASTINGS n/k/a Jean Audrey Shepard, and Lance Hastings n/k/a Lance Shepard, Appellants, v. Lawrence Vaeth HASTINGS, Appellee.
    No. 3D02-815.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    Rehearing and Rehearing En Banc Denied March 28, 2003.

      Delaney Hill, P.A. and Patricia A. Dempsey, for appellants.
    Brenda M. Abrams (Boca Raton), for appellee.
    Before COPE, LEVY, and FLETCHER, JJ.
   FLETCHER, Judge.

In 1953 Jean Audrey Hastings, n/k/a Jean Audrey Shepard [mother] and Lawrence Vaeth Hastings [father] divorced. The father was ordered to pay child support until their son reached the age of 21. In 2001 the father filed a declaratory action, seeking to have determined whether he has an obligation to pay support for his 50-year-old son, who has an autism-related, chronic condition (Asperger’s syndrome) for which he began receiving treatment at age 8. The mother and the son counter-petitioned for the establishment of support for the son under Section 743.07(2), Florida Statutes, a savings clause enacted when the disability of nonage was removed for persons 18 years of age and over. Section 743.07(2) reads in pertinent part:

“This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority ...”

By this enactment the legislature did not create a right or a cause of action, but “saved” any common law right or cause of action from extinction by section 743.07(1).

The trial court granted summary judgment for the father, apparently concluding that after the passage of many years it is now too late for the support action to be brought. We disagree.

First, there is no doubt that the son has a common law right of support from his parents. Perla v. Perla, 58 So.2d 689 (Fla.1952)(“Generally, the obligation of a parent to support a child ceases when the child reaches majority, but an exception arises when the child is, from physical or mental deficiencies, unable to support himself.”); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963)(Father was obligated to support or contribute to support of unmarried, adult daughter, who lived with divorced mother and, since birth, had been mentally and physically unable to care for or support herself). See also Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998). In Brown, the Fifth District Court pointed out that the right to such support from the father belongs to the dependent adult child, not to the mother. “Indeed, the mother, as well as the father, is a potential defendant in the support action.” Brown, at 477. Thus a dependent person may bring an independent action to enforce her or his right to support from his or her parents.

In summary, the right to support belongs to the mentally or physically disabled adult child whose disability began prior to her or his majority, and the duty of support lies with both parents, throughout their lives. Thus the issue of support is not totally resolved in divorce actions wherein the mother and father allocate (or have allocated for them) the support payments for their dependent child as such a dependent person can bring an action in accordance with the rule establishing appropriate parties in actions involving legal incompetents. Brown, at 477.

The trial court, in entering summary judgment for the father, relied on cases such as Cyr v. Cyr, 354 So.2d 140 (Fla. 2d DCA 1978) and Baldi v. Baldi 323 So.2d 592 (Fla. 3d DCA 1975). These decisions state that whether a minor is a dependent person entitled to support payments beyond the time of attaining majority is a question to be determined by the court at the time of the minor’s attaining majority. These cases, however, were not meant to apply to situations as the instant one. Cyr and Baldi dealt with the statutory nonage change of section 743.07(1), Florida Statutes and whether child support should be to age 18 or to age 21. They do not affect a dependent person’s right to an independent action against her or his father or mother, which action can brought at any time as the parents remain responsible for support throughout the dependency, and throughout their lives.

Reversed and remanded for further proceedings consistent herewith.

COPE, J., concurs.

LEVY, Judge

(dissenting).

I respectfully dissent.

The issue in this case is whether, 29 years after attaining the age of majority, an adult child may initiate, for the first time, a cause of action for support from a parent when the condition alleged by the child to necessitate a finding of dependency was known to all parties involved for approximately 42 years prior to the commencement of the action. I would hold that, under the circumstances presented in this case, an adult child is time-barred from initiating such a cause of action.

The majority opinion, while correctly stating that an independent action exists to adjudicate the obligation of the parents to support a dependent adult child, disregards this Court’s opinion in Baldi v. Baldi 323 So.2d 592 (Fla. 3d DCA 1975), and explicitly holds that, as long as the alleged infirmity existed before the child reached the age of majority, such an action may be brought by the adult child “at any time” regardless of the period of time that elapsed after the child reached the age of majority.

The majority opinion incorrectly dismisses Baldi as a case that exclusively deals “with the statutory nonage change ... and whether child support should be to age 18 or to age 21.” Contrary to the majority’s reading of Baldi, however, the opinion neither evaluates nor interprets the statutory nonage change. Rather, Bal-di proves to be particularly instructive in the instant case.

In the portion of Baldi that is pertinent here, this Court quoted the language of Section 743.07(2), Florida Statutes, which stated that the statute did “not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years ... ”. We further declared that “the question of support as dependent children beyond 18 years of age should be determined by the court, if requested, at the time of the attainment of majority of each child.” Baldi, 323 So.2d at 593 (emphasis added); see also Cyr v. Cyr, 354 So.2d 140, 140 (Fla. 2d DCA 1978). Accordingly, I would affirm on the authority of Baldi, which requires that an action for post-majority support be initiated at the time of attainment of majority.

Although the majority concludes that a dependent person’s right to an independent action against a parent can be initiated “at any time,” none of the cases cited to in the majority opinion stand for such a proposition. The majority opinion cites to Perla v. Perla, 58 So.2d 689, 690 (Fla.1952), for the general proposition that, unless the child is unable to support herself by virtue of physical or mental deficiencies, the obligation of a parent to support a child ends when the child reaches majority. While I agree with the general proposition, it should be noted that Perla and Brown v. Brown, 714 So.2d 475, 477 (Fla. 5th DCA 1998), explain that a cause of action for support for an adult child cannot be initiated by a parent through a divorce proceeding, but must be brought by the adult child through a direct action. In fact, neither Perla nor Brown ever reaches the question of whether the adult child for whom support was sought was actually entitled to that support. Finally, in Fineham v. Levin, 155 So.2d 883, 884 (Fla. 1st DCA 1963), where the First District concluded that the father of a dependent adult child was obligated to contribute to the support and maintenance of that child, the post-majority support was sought only four years after the attainment of majority. Without getting into the mathematical gymnastics of determining the point at which an adult child will be time-barred from initiating such a cause of action, I note that, in the instant case, the adult child was 50 years old, and sought support from his father 29 years after he attained the age of majority. To the extent that it is determined that this cause of action may be initiated after such an extraordinary amount of time after the attainment of majority, that determination should be made, not by this Court, but by the Legislature. For the foregoing reasons, I would affirm the Order granting summary judgment for the father.

      . The age of majority at that time. See, e.g., Baldi v. Baldi, 323 So.2d 592 (Fla. 3d DCA 1975).

      . The mother supported the parties’ dependent son by herself from the time the son was 21 until recently when she became unable to continue doing so.

      . By Section 743.07(1), Fla. Stat. (effective July 1, 1973).

      . Our decision here is limited to those situations in which the dependent person became mentally or physically incapacitated prior to her or his reaching majority.

      . The substance of the current Section 743.07(2), Florida Statutes, is the same as it existed at the time of the Baldi opinion.

      . In Perla, the Florida Supreme Court reasoned that a marital settlement agreement between the mother and the father did not necessarily relieve the father in the future of any direct duty to the child. See Perla, 58 So.2d at 690. The court went on to explain that “[t]he mother should not, in a divorce proceeding, be made a medium through which payments coerced from the father would reach an adult child.” Perla, 58 So.2d at 690.


author: FULMER, Judge. BLUE, Chief Judge,

text:
    Terry A. COTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4591.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
    Rehearing Denied March 5, 2003.
    Michael P. McDaniel of C. Ray McDaniel, P.A., Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Danilo Cruz-Carlino, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Terry A. Cote challenges his judgment and sentence for possession of cannabis in excess of twenty grams. We find merit in one sentencing issue raised in this appeal. Although this error is unpreserved, it is an error that renders the sentence illegal. Just as a trial court has authority to correct an illegal sentence at any time under Florida Rule of Criminal Procedure 3.800(a), we hold that this court has authority under Florida Rule of Appellate Procedure 9.140(i) to require a trial court to correct a facially illegal sentence even if a challenge to the illegal sentence has not been preserved.

Mr. Cote was adjudicated guilty and sentenced to two years’ probation with the condition that he serve six months in the county jail. However, the written sentence states that Mr. Cote’s probation is to be served consecutive to his jail term. Thus, the written sentence varies from the oral pronouncement and results in a longer sanction than that orally imposed. Mr. Cote failed to seek correction of his written sentence pursuant to either rule 3.800(b)(1) or (b)(2). Therefore, this sentencing error was not preserved.

Dicta in Maddox v. State, 760 So.2d 89 (Fla.2000), suggests that defendants would be barred from raising unpreserved sentencing errors on direct appeal after the effective date of the amendments to rule 3.800(b). Three district courts of appeal have adopted this interpretation, which in our view appears to limit appellate review beyond the level envisioned by the legislature when it enacted section 924.051, Florida Statutes (Supp.1996), as part of the Criminal Appeal Reform Act of 1996.

We need not decide whether to join our sister courts in their interpretation of Maddox because we conclude that this sentencing error can and should be corrected under the authority of rule 9.140(i), which states that “in the interest of justice the court may grant any relief to which any party is entitled.” In Maddox, the supreme court addressed the preservation requirements imposed by section 924.051(3) and rule 9.140(e) and anticipated “that the interests of justice should be served by the ability of appellate counsel to first raise [an otherwise unpreserved sentencing] issue in the trial court prior to filing the first appellate brief.” Id. at 98. What Maddox does not address is the situation in which appellate counsel fails to file a rule 3.800(b)(2) motion and an illegal sentence appears on the face of the record in a direct appeal. It can hardly be said that the interests of justice are served by an interpretation of Maddox that would prevent this court from exercising its inherent authority, expressly recognized in rule 9.140(i), to grant relief from such errors. There can be no question that a defendant is entitled to relief from an illegal sentence.

Mr. Cote is serving a sentence that differs from the sentence actually imposed by the sentencing judge and, more importantly, is longer than the sentence pronounced. This sentence is illegal under Carter v. State, 786 So.2d 1173 (Fla.2001), because a judge is never authorized to impose a written sentence that increases the length of the sentence beyond the term orally pronounced. Because his sentence is illegal, Mr. Cote would be entitled to relief pursuant to rule 3.800(a). Therefore, we invoke our authority pursuant to rule 9.140(i), reverse Mr. Cote’s sentence, and remand for the trial court to resen-tence Mr. Cote in conformity with the orally pronounced sentence. Mr. Cote need not be present.

Reversed and remanded with directions.

STRINGER, J., concurs.

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

BLUE, Chief Judge,

concurring specially.

I agree fully with Judge Fulmer’s well-written and well-reasoned opinion. I write to point out that the failure to preserve error in this case must be the result of ineffective counsel. That being so, this defendant is entitled to have the prejudicial error of an illegal sentence corrected. To fail to do so at this time would require additional circuit court proceedings and possibly an additional appeal to this court. This would not be the best use of judicial resources. Furthermore, in cases like this one that involve short sentences, it is possible that a defendant could complete an illegal sentence before it was corrected. As Maddox points out, the State “has no interest in any defendant serving a sentence that is longer than the sentence authorized by law.” 760 So.2d at 99.

      . This rule was formerly found in Florida Rule of Appellate Procedure 9.140(h).

      . See Reese v. State, 763 So.2d 537 (Fla. 4th DCA 2000); Capre v. State, 773 So.2d 92 (Fla. 5th DCA 2000); Harvey v. State, 786 So.2d 595 (Fla. 1st DCA), op. on denial of reh’g, 786 So.2d 28 (Fla. 1st DCA), review granted, 797 So.2d 585 (Fla.2001).

      . This rule was formerly found in Florida Rule of Appellate Procedure 9.140(d).