text:
    Rickey Bernard ROBERTS, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.
    No. SC92496.
    Supreme Court of Florida.
    Dec. 5, 2002.
    Rehearing Denied March 13, 2003.

      Martin J. McClain, Special Assistant CCRC — South, Brooklyn, NY, and Office of the Capital Collateral Regional Counsel for the Southern Region, Fort Lauderdale, FL, for Appellant, Cross-Appellee.
    Richard E. Doran, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee, Cross-Appellant.
   PER CURIAM.

Rickey Bernard Roberts appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The State has filed a notice of cross appeal of another order granting postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Roberts was convicted of first-degree murder, armed sexual battery, and armed kidnaping. The facts of the murder are set forth in Roberts v. State, 510 So.2d 885 (Fla.1987). The jury recommended the death penalty by a vote of seven to five. The judge imposed the death sentence, finding four aggravating circumstances: (1) the defendant had been previously convicted of a violent felony; (2) at the time of the commission of the capital felony the defendant was under a sentence of imprisonment; (3) the capital felony was committed during the commission of a sexual battery; ' and (4) the capital felony was especially heinous, atrocious, or cruel. The judge found no mitigating circumstances. On appeal, this Court affirmed Roberts’ convictions and the sentences imposed, including the death penalty. See id. at 895.

Roberts filed his first motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in 1989, while he was under a pending death warrant. Roberts appealed the trial court’s summary denial of his 3.850 motion and also filed a petition for a writ of habeas corpus with this Court. See Roberts v. State, 568 So.2d 1255 (Fla.1990). This Court found the twenty-four issues raised in Roberts’ appeal to be either procedurally barred or without merit and affirmed the trial court’s summary denial. We also denied Roberts’ petition for habeas relief. See id. at 1263.

Roberts also filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida, raising twenty-five claims. After an evidentiary hearing and argument by the parties, the district court found the claims either, to be procedurally defaulted or without merit and denied habeas relief. See Roberts v. Singletary, 794 F.Supp. 1106 (S.D.Fla.1992). The Eleventh Circuit Court of Appeals affirmed the denial of habeas relief. See Roberts v. Singletary, 29 F.3d 1474 (11th Cir.1994).

Roberts filed a second petition for a writ of habeas corpus with this Court in 1993, arguing that he was entitled to a new sentencing proceeding based upon several decisions of the United States Supreme Court relating to jury instructions on the heinous, atrocious, or cruel aggravating circumstance. This Court denied the petition, finding the issue to be procedurally barred because trial counsel had not raised an objection to the form of the instruction. See Roberts v. Singletary, 626 So.2d 168 (Fla.1993).

In 1995, Roberts filed two public records requests, seeking disclosure of records from the State Attorney’s Office and the Office of the Attorney General. During the pendency of Roberts’ public records requests, the Governor signed a second death warrant against Roberts. Roberts then filed a second 3.850 motion for post-convietion relief and a request for a stay of execution. The circuit court denied the postconviction motion without an eviden-tiary hearing and also denied the stay. This Court issued a temporary stay of execution to permit Roberts to appeal the denial of his motion for postconviction relief to this Court. On appeal, this Court found most of Roberts’ claims to be either procedurally barred or without merit. See Roberts v. State, 678 So.2d 1232, 1234-35 (Fla.1996). However, we determined that two issues required remand of Roberts’ case to the circuit court for further proceedings. We determined that an eviden-tiary hearing was required for Roberts’ claim that prosecution witness Rhonda Haines had recanted her trial testimony. We also concluded that the circuit court must determine whether the public record deponents should be compelled to answer certain questions certified by Roberts’ counsel. See id. at 1235-36.

During the course of this remand, testimony in another death case revealed that Judge Harold Solomon, who presided over Roberts’ original trial and postconviction proceedings, had engaged in ex parte communication with the prosecutor and delegated the responsibility for writing the sentencing order to the prosecutor in that case. See State v. Riechmann, 777 So.2d 342 (Fla.2000). After this information came to light and mandate was issued by this Court in Roberts’ case, Roberts’ counsel filed a motion on October 16, 1996, to disqualify Judge Solomon based in part upon the judge’s actions in Riechmann. When the trial court subsequently vacated Riechmann’s sentence and ordered a new sentencing proceeding, Roberts’ counsel filed an amended motion to disqualify and a motion to depose Judge Solomon. Judge Solomon denied the motion to disqualify as legally insufficient and presided over Roberts’ postconviction proceedings. Judge Solomon denied all postconviction relief in an order that was filed with the clerk of the circuit court on October 1, 1997.

On May 5, 1999, this Court issued an order temporarily relinquishing jurisdiction to the Circuit Court of the Eleventh Judicial Circuit to determine the issue raised in Roberts’ “Motion to Get the Facts.” Roberts alleged that an ex parte proceeding occurred between the State and Judge Solomon during his 1997 post-conviction proceedings after remand by this Court. The transcript of a September 1997 status hearing before another judge, at which Roberts was not present and was not represented by counsel, indicated that the State knew that Judge Solomon had denied postconviction relief before the order was filed in the clerk’s office and served on the parties.

An evidentiary hearing was held before Judge Jerald Bagley on Roberts’ “Motion to Get the Facts.” The witnesses at this hearing included the prosecutors from Roberts’ trial, appeal, and postconviction proceedings and Judge Solomon, who presided over both the trial and the postcon-viction proceedings. Ail of the witnesses denied any ex parte contact during the 1997 postconviction proceedings. Based on the evidence presented at the evidentia-ry hearing, it appears that Judge Solomon inadvertently sent the State the original copy of the order denying postconviction relief shortly after the order was issued by the judge in September. When the State realized what had happened, the order was filed with the clerk of the court on October 1, 1997, and Roberts received a copy of the order denying postconviction relief.

During the hearing on the “Motion to Get the Facts,” Roberts’ counsel also questioned Judge Solomon about who had prepared the original sentencing order in Roberts’ trial. When the State objected to this questioning, Judge Bagley permitted limited questioning on the topic. Judge Solomon revealed that the State had drafted the sentencing order and the judge had merely signed it and read it in court. At the end of the hearing, Roberts requested leave to file an amended 3.850 motion based on the information disclosed at the hearing. Judge Bagley ruled that this was outside the scope of this Court’s remand on the “Motion to Get the Facts.”

On a subsequent motion from Roberts, this Court again relinquished jurisdiction so that the circuit court could consider Roberts’ third motion for postconviction relief. The motion raised two claims relating to Judge Solomon: (1) the sentencing judge erred in failing to independently weigh the aggravating and mitigating circumstances and in failing to disclose that the State had prepared the judge’s findings in support of the death sentence; and (2) Roberts was denied due process when Judge Solomon presided over his 1997 postconviction proceedings because the judge knew material information that he did not disclose.

During an evidentiary hearing on this third postconviction motion before Judge Bagley, the court heard testimony from Roberts’ trial counsel and postconviction counsel, Judge Solomon, and the prosecutors. Judge Solomon again testified that the State drafted the findings in support of Roberts’ death penalty, which was the same procedure he had employed in Riech-mann. The prosecutors testified that they did not recall drafting the sentencing order in Roberts’ case. However, the circuit court granted Roberts a new sentencing proceeding in light of Judge Solomon’s uncontradicted and unequivocal testimony that he had asked someone from the State to prepare the order and had not prepared the order himself.

Roberts appeals five issues related to the denial of his second postconviction motion by Judge Solomon following the evi-dentiary hearing ordered by this Court. Roberts argues that (1) Judge Solomon should have granted the motion to disqualify him from presiding over the postconviction proceedings; (2) the court erred in refusing to issue a certificate of materiality so that Roberts could obtain an out-of-state subpoena requiring Rhonda Haines to appear as a witness at the evidentiary hearing; (3) Judge Solomon was assigned to the postconviction proceedings during an ex parte proceeding; (4) the court erred in denying Roberts’ motion to disqualify Assistant State Attorney William Howell; and (5) the court erred in failing to conduct a cumulative analysis of the claims in this 3.850 motion and Roberts’ prior 3.850 claims. The State filed a cross-appeal of Judge Bagley’s order in the third postconviction motion, which granted Roberts a new sentencing proceeding.

In his first issue, Roberts argues that Judge Solomon should have granted the motion to disqualify the judge from presiding over the postconviction proceedings. Florida Rule of Judicial Administration 2.160(d) states, in part, that “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge” or that the “judge is a material witness for or against one of the parties to the cause.” Rule 2.160(f) provides that the judge against whom an initial motion to disqualify is directed “shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” The motion is legally sufficient if the facts alleged demonstrate that the moving party has a well-grounded fear that he or she will not receive a fair trial at the hands of the judge. See Correll v. State, 698 So.2d 522, 524 (Fla.1997); Cave v. State, 660 So.2d 705, 708 (Fla.1995). To determine if a motion to disqualify is legally sufficient, this Court looks to see whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. See Correll, 698 So.2d at 524.

In the instant case, Roberts’ motion to disqualify alleged that Judge Solomon had served as a witness for the State in the Riechmann case, engaged in ex parte communications with the State to discuss Riechmann’s claims, and had developed a relationship with the prosecutor in Riechmann’s case, who also prosecuted Roberts’ case, and that these facts caused Roberts to fear that he would not receive a fair hearing from the judge. Roberts’ motion to depose noted Judge Solomon’s behavior in Riechmann and sought to inquire whether the judge had engaged in similar conduct in Roberts’ case. Roberts’ amended motion to disqualify Judge Solomon, which was filed simultaneously with the motion to depose the judge, also outlined the judge’s misconduct in the Riechmann case, but elaborated by referring to the evidence revealed at Riechmann’s evi-dentiary hearing. The amended motion further noted that Riechmann had been granted a new sentencing hearing based on Judge Solomon’s misconduct and that this relief had been granted to Riechmann after Roberts filed his first motion to disqualify.

At the hearing on these motions, Roberts’ counsel argued that Judge Solomon needed to disqualify himself and permit Roberts to depose him to learn whether the judge had engaged in the same conduct as in Riechmann. Counsel noted that Judge Solomon could not be both the presiding judge and a witness at the post-conviction hearing. Judge Solomon found Roberts’ motion to disqualify to be legally insufficient and denied the motion to depose. This was clearly error as Judge Solomon knew that he had engaged in ex parte communication in Roberts’ case, had asked the State to draft Roberts’ sentencing order, and had failed to independently weigh the aggravating and mitigating factors in the case. Thus, Roberts’ motion to disqualify was legally sufficient and Judge Solomon should have granted the motion and allowed his deposition to proceed.

The State contends that Roberts’ motion to disqualify, which was filed on October 16, 1996, and amended on November 12,1996, was not timely. Florida Rule of Judicial Administration 2.160(e) provides that a motion to disqualify must be made “within a reasonable time not to exceed 10 days after discovery of the facts constituting grounds for the motion and shall be promptly presented to the court for an immediate ruling.” The State raised the issue of timeliness of the motion below, but Judge Solomon did not deny the motion on this basis. Instead, the judge ruled that “the Defendant’s motion to disqualify judge is insufficient, and the motion is denied.” Thus, the timeliness of the motion is not properly before us. Nevertheless, we find that Roberts’ motion to disqualify was timely filed, based on the circumstances of this case.

Finally, the State argues that even if the motion was timely and legally sufficient, Roberts is not entitled to relief on this claim because he has been granted a new sentencing proceeding based on his third postconviction motion. The State relies upon this Court’s decision in State v. Mills, 788 So.2d 249, 250-51 (Fla.2001), in which we ruled that a claim of impermissible ex parte communications between the State and the sentencing judge regarding preparation of an order during an initial postconviction proceeding was rendered moot by the postconviction court’s decision to grant the defendant a new sentencing hearing. However, we find Mills to be factually distinguishable from the instant case. In Mills, we specifically noted that the evidence presented at the postconviction hearing did not call into question Mills’ conviction for first-degree murder, and thus he was not entitled to a new trial on the question of guilt. See id. at 251. In the instant case, Judge Solomon presided over an evidentiary hearing ordered by this Court to hear the testimony of a recanting witness and determine whether the recantation warranted a new guilt phase trial.

Canon 3B(7) of the Code of Judicial Conduct provides that “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” Based on this principle, this Court has repeatedly stated that there is nothing “more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.” State v. Riechmann, 777 So.2d 342, 351 (Fla.2000). Further, as we explained in Rose v. State, 601 So.2d 1181, 1183 (Fla.1992), we are not “concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. The impartiality of the trial judge must be beyond question.” Id.

Here, Roberts’ second postconviction motion, which raised guilt phase issues, was ruled upon by a judge who had engaged in ex parte communication with the State during the penalty phase proceedings and who abdicated his judicial role of independently weighing the aggravating and mitigating circumstances to determine if a death sentence was appropriate. To avoid the appearance of impropriety and to give Roberts a fair hearing of his claims, we conclude that he should be given a new hearing before a new judge on his remanded second postconviction motion.

While our disposition of this issue renders Roberts’ remaining issues on appeal moot, we address them to offer guidance to the trial court in the new proceeding on remand. We find no merit to issues three (judge was assigned to the case during an ex parte proceeding) and four (denial of motion to disqualify the state attorney). The record shows that the instances where the State appeared before the administrative judge without Roberts being present involved “strictly administrative matters not dealing in any way with the merits of the case.” Rose, 601 So.2d at 1183. Further, we remanded the case back to Judge Solomon for an evidentiary hearing on the recanted testimony of a trial witness and for rulings on the questions certified by Roberts’ counsel in the public records depositions. Thus, the case was remanded to Judge Solomon to conclude what was unfinished in Roberts’ second postconviction proceeding, and Judge Solomon was the proper party to rule upon the motion to disqualify him from presiding.

We also find no merit to Roberts’ claim that the assistant state attorney should have been disqualified from serving as both prosecutor and witness at the second postconviction hearing. ‘While Rule Regulating the Florida Bar 4-3.7 prohibits a lawyer from acting as an advocate and witness in the same trial, [the] purpose of the rule is to prevent the evils that arise when a lawyer dons the hats of both an advocate and witness for his or her own client. Such a dual role can prejudice the opposing side or create a conflict of interest.” Scott v. State, 717 So.2d 908, 910 (Fla.1998) (footnotes omitted). The concerns behind the rule are not implicated here as Assistant State Attorney William Howell was called as a rebuttal witness by Roberts in a postconviction evidentiary hearing before the judge. See id.

However, we are troubled by the trial court’s refusal to issue a certificate of materiality so that Roberts could obtain an out-of-state subpoena requiring Rhonda Haines to appear as a witness at the evidentiary hearing. This Court specifically remanded this case to the trial court for an evidentiary hearing to permit Haines to testify regarding the affidavit in which she recanted her trial testimony. See Roberts, 678 So.2d at 1235, 1236. At the time of the evidentiary hearing, Haines resided in California. Roberts repeatedly asked the trial court to issue a certificate of materiality so that a subpoena could be obtained to compel Haines’ appearance at the eviden-tiary hearing. The State objected, arguing that section 942.03(1), Florida Statutes (1997), which governs out-of-state subpoenas, is only applicable in criminal prosecutions or grand jury proceedings, and post-conviction proceedings do not qualify as criminal prosecutions under the statute. Roberts acknowledged that the statute does not specify postconviction proceedings as the basis for a court to issue a certificate of materiality to compel the attendance of an out-of-state witness, but he argued that postconviction proceedings must comport with due process, that if the court denied the certificate of materiality he would be denied a full and fair postcon-viction hearing, and that he should not have to rely on the witness’s willingness to appear voluntarily without a subpoena. Judge Solomon denied Roberts’ application for the issuance of a certificate of materiality for Haines. When the evidentiary hearing was finally conducted in July 1997, Haines did not attend. The State argued that Roberts was responsible for Haines’ nonappearance because Roberts’ counsel had warned Haines that the State intended to prosecute her for perjury. The State did acknowledge that it intended to charge Haines with perjury if she testified in conformity with her affidavit recanting her trial testimony. The hearing proceeded without Haines, and in lieu of her live testimony, Roberts proffered Haines’ affidavit.

In her affidavit, Haines claimed that the State pressured her into her trial testimony and promised to help her with pending charges in exchange for her testimony. In rebuttal of Haines’ affidavit, a detective testified that pending charges against Haines had not been taken care of by the prosecutor, and the three prosecutors testified that they did not pressure or bribe Haines for her trial testimony and that they never assisted her on any pending charges. Following this hearing, Judge Solomon denied relief on the recanted testimony claim. The judge found that the claim could have been presented in the first postconviction proceedings in 1989 through the use of due diligence; that the recantation evidence was not reliable because Roberts did not present the recanting witness, corroborating witnesses, or other evidence to establish the trustworthiness of the recantation and the State presented both testimony and evidence to refute the recanting witness’s statements; and that there was no reasonable probability that the outcome of the trial would have been different even if the recantation were taken as truthful and had been presented at trial.

Roberts argues that he was denied a full and fair evidentiary hearing on this claim by the court’s refusal to issue a certificate of materiality in order to compel Haines’ appearance at the hearing. The State asserts that postconviction proceedings are civil and thus not covered by section 942.03(1), which only specifies that a material witness in another state may be summoned in a pending prosecution or grand jury investigation. However, as this Court explained in State ex rel. Butterworth v. Kenny, 714 So.2d 404, 409-10 (Fla.1998), while habeas corpus and other postconviction proceedings are technically classified as civil proceedings, they are “[u]nlike a general civil action ... wherein parties seek to remedy a private wrong [because] a habeas corpus or other post-conviction relief proceeding is used to challenge the validity of a conviction and sentence. Consequently, postconviction relief proceedings, while technically classified as civil actions, are actually quasi-criminal in nature because they are heard and disposed of by courts with criminal jurisdiction.” (Citations omitted.) Thus, while criminal postconviction proceedings may be designated civil, “they involve interests and considerations that are more closely aligned with those traditionally and fundamentally protected in criminal proceedings.” Miami-Dade County v. Jones, 793 So.2d 902, 905 (Fla.2001).

Furthermore, this Court has recognized that postconviction proceedings must comport with due process. See, e.g., Teffeteller v. Dugger, 676 So.2d 369, 371 (Fla.1996) (finding that postconviction hearing was procedurally flawed and violated the appellants’ right to due process where court excluded the appellants from the courtroom while much of the evidence was presented and prevented appellants’ counsel from cross-examining many of the witnesses). In Johnson v. Singletary, 647 So.2d 106 (Fla.1994), and Provenzano v. State, 750 So.2d 597 (Fla.1999), we determined that the posteonviction defendants had been deprived of due process because they were not given an opportunity to present evidence or witnesses. Furthermore, as in Provenzano, “the purpose of our previous remand was never realized” in Roberts’ ease because the court never heard from Roberts’ recanting witness even though he repeatedly requested a means to compel her attendance. 750 So.2d at 597.

Thus, on remand, Roberts must be afforded an opportunity to compel Haines’ testimony at the evidentiary hearing so that the court can hear from her directly about the recantation and the circumstances surrounding her original trial testimony.

Finally, we agree with Roberts that our case law requires cumulative analysis of newly discovered evidence. In determining whether newly discovered evidence warrants setting aside a conviction, a trial court is required to consider all newly discovered evidence which would be admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence which was introduced at trial to determine whether the evidence would probably produce a different result on retrial. See Lightbourne v. State, 742 So.2d 238, 247 (Fla.1999); Jones v. State, 709 So.2d 512, 521 (Fla.1998). This cumulative analysis must be conducted so that the trial court has a “total picture” of the case. Lightbourne, 742 So.2d at 247. However, claims of cumulative error are properly denied where individual claims have been found without merit or proeedurally barred. See Rose v. State, 774 So.2d 629, 637 (Fla.2000); Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999).

Roberts raised a number of alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in the appeal of his first postconviction motion. See Roberts v. State, 568 So.2d 1255, 1260 (Fla.1990). We concluded that one allegation did not constitute a Brady violation because the alleged exculpatory evidence (witness statements that Roberts had been drinking and taking drugs prior to the offense) was equally accessible to the defense and the prosecution. See Roberts, 568 So.2d at 1260. As to the seven other alleged instances of undisclosed exculpatory evidence, we concluded there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed. See id. However, if the trial court determines on remand that Haines’ testimony is credible, then the Brady claims raised in Roberts’ first post-conviction motion must be considered in a cumulative analysis. At this time, no relief is warranted on this claim.

Turning to the State’s cross-appeal, the State argues that the trial court erred in granting relief on Roberts’ third postconviction motion. Judge Bagley presided over the evidentiary hearing regarding Judge Solomon’s conduct in Roberts’ trial. After the hearing, Judge Bagley issued an order granting Roberts a new sentencing proceeding. The order states that Roberts’ claim of ex parte communication between the sentencing judge and the State and improper drafting of the sentencing “is overwhelmingly supported by the post conviction testimony of Judge Harold Solomon, along with other evidence presented at the evidentiary hearing.”

The transcript of the hearing below supports the lower court’s findings. Judge Solomon testified at both this hearing and the April 2000 hearing on the “Motion to Get the Facts” that he asked the State to draft the sentencing order for Roberts and that this was his practice in all three death penalty cases over which he presided. Judge Solomon did not recall whom he had spoken to, but remembered that he did not draft the order himself. Two prosecutors testified that they did not draft the order and possessed no recollection of the judge making such a request of the State; one prosecutor testified that he could not recall. Thus, the evidence is contradictory and turns on the lower court’s assessment of the credibility of the evidence. Findings on the credibility of evidence by a lower court are not overturned if supported by competent, substantial evidence. See Jones v. State, 709 So.2d 512, 515 (Fla.1998) (“[T]his Court, as an appellate body, has no authority to substitute its view of the facts for that of the trial judge when competent evidence exists to support the trial judge’s conclusion.”). In this case, the lower court’s ruling is so supported and thus should be affirmed.

The State argues that Roberts has not shown due diligence in pursuing this claim and should have been on notice about the authorship of the sentencing order by an unsigned, unpaged sentencing order that was included as an exhibit to a public records deposition of one of the prosecutors. The State made this same argument to the trial court after the hearing on the third postconviction motion, but never presented this argument or evidence during the evidentiary hearing on the issue. The lower court found no merit to this due diligence claim. We agree.

The State never presented or mentioned the unsigned order at the hearing. In fact, the State’s position at the hearing was that Judge Solomon was mistaken and the State did not draft the order. The prosecutors even testified that there was no draft order in the state attorney’s records or files, so Judge Solomon had to be mistaken in his recollection. When Roberts’ counsel asked a State witness if there was anything in the records that should have alerted Roberts to the State’s authorship of the sentencing order, the State objected to the relevance of the question and the court sustained the objection. Thus, we find this claim to be inconsistent with the State’s position below and deem it abandoned.

For the reasons discussed above, we vacate the order denying relief on Roberts’ second postconviction motion and remand for a new evidentiary hearing before a new judge. We affirm the order on the third postconviction motion granting Roberts a new sentencing proceeding based on ex parte communication by the sentencing judge and the improper drafting of the sentencing order. For purposes of judicial economy, the evidentiary hearing on the postconviction motion should be conducted first to determine whether a new guilt phase proceeding is also warranted.

It is so ordered.

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

      . Judge Solomon engaged in ex parte communication in which he asked the State to draft Riechmann's sentencing order. Moreover, the judge abdicated his responsibility to independently weigh the aggravating and mitigating circumstances, did not articulate any specific findings as to the circumstances, and merely read from the State’s prepared order. This misconduct was not disclosed to defense counsel during any stage of the penalty phase, but only came to light in public record materials disclosed by the State. See Riechmann, 777 So.2d at 351-52.

      . In Johnson, the defendant was prevented from presenting evidence to corroborate his affidavits, while the State was permitted to present evidence regarding the unreliability of the affidavit evidence. 647 So.2d at 111 n. 3. In Provenzano, the defendant was prevented from presenting expert testimony as to his incompetency to be executed, while the State expert with a conflicting opinion did testify. 750 So.2d at 601.

      . Roberts also raised a number of Brady claims in his federal habeas petition, but the district court concluded that “all of the alleged 'exculpatory information’ was either immaterial, or already in [Roberts’] possession.” Roberts v. Singletary, 794 F.Supp. 1106, 1122 (S.D.Fla.1992). Thus, the federal district court denied these claims as meritless. See id.

      . Judge Solomon presided over the capital case trials of Roberts, Dieter Riechmann, and Krishna Maharaj. Riechmann and Maharaj have been granted relief based on Judge Solomon's ex parte communications with the State and failure to conduct an independent review of the aggravating and mitigating factors by merely adopting the State’s sentencing order. See Maharaj v. State, 778 So.2d 944, 947 (Fla.2000); State v. Riechmann, 777 So.2d 342, 351 (Fla.2000).


source: Caselaw Access Project

author: SHAW, J.

license: Public Domain

text:
    INTEGRATED HEALTH CARE SERVICES, INC., et al., Petitioners, v. Pauline LANG-REDWAY, etc., Respondent.
    No. SC01-792.
    Supreme Court of Florida.
    Dec. 12, 2002.
    Rehearing Denied March 13, 2003.

      Scott A. Mager and Gary S. Gaffney of Mager & Associates, P.A., Fort Lauder-dale, Florida; and Andrew R. McCumber and Edward Carlos Prieto of Quintamos, McCumber, Prieto & Wood, P.A., Miami, FL, for Petitioners.
    Susan B. Morrison of Wilkes & McHugh, P.A., Tampa, FL, for Respondent.
   SHAW, J.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

If a plaintiff files a lawsuit seeking to enforce only those rights enumerated in section 400.022, must the plaintiff comply with the presuit conditions in section 766.106?

Integrated Health Care Services, Inc. v. Lang-Redway, 783 So.2d 1108, 1112 (Fla. 2d DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

From October 1997 to February 1998, Albert Redway was a resident at an Integrated Health Services (“IHS”) nursing home. Immediately thereafter, he resided at the Bon Secours Maria Manor (“Bon Secours”) until his death in April of 1998. Pauline Lang-Redway, the personal representative for the estate of Albert Redway, sued IHS and Bon Secours, alleging that both nursing homes violated Redway’s statutory rights as provided under section 400.022, Florida Statutes (1997). Relative to defendant Bon Secours, the complaint alleged that Bon Secours violated section 400.022 when it failed to (1) assure that Redway received adequate health care and support services, (2) prevent his pressure sores and treat such sores after they oc-eurred, (3) maintain accurate medical or clinical records including its failure to adequately document Redway’s injuries, (4) protect him from unexplained injuries and prevent him from falling at the facility, (5) adequately monitor his nutritional intake, (6) adequately monitor significant signs and symptoms of infection, and (7) train, supervise, and retain a proper staff. The complaint specifically stated that it was founded on duties imposed by section 400.022.

The defendants moved to dismiss the complaint on several grounds, including the allegation that despite the fact that the plaintiff had fulfilled the presuit requirements under section 400.023(4), she had failed to fulfill the presuit requirements under chapter 766, Florida Statutes (1997) — a necessary step before bringing a medical negligence action. The trial court denied the motion to dismiss, and Bon Secours appealed. The Second District Court of Appeal affirmed, noting that:

The complaint alleges violations of Mr. Redway’s rights as a nursing home resident exclusively under section 400.022. It includes a claim for wrongful death and, in the alternative, a claim for damages if the defendant’s negligence did not cause Mr. Redway’s death. However, both claims are based upon a violation of a statutory right instead of a common law right. The six-count complaint does not name or identify any physician or other “health care provider” as a defendant. See § 766.102(1), Fla. Stat. (1997) (citing § 768.50(2)(b), Fla. Stat. (1985)). Although the complaint alleges that Mr. Redway did not receive adequate and appropriate health care at the facilities as a statutory claim under section 400.022(1)©, the plaintiff does not allege any common law theory attempting to make the defendants vicariously liable for a breach of a professional standard of care by a health care provider.
In cases involving vicarious liability of nursing homes for the actions of their employees, determining whether the presuit requirements of chapter 766 are invoked has been a difficult task for the judiciary. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993); NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section 766.102(1). See Weinstock, 629 So.2d at 838; Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000). This complaint does not seek vicarious liability for the actions of a health care provider under a medical negligence standard.
The defendants’ arguments in this case are based, in part, upon a misunderstanding of dicta contained in NME Properties. In that case, we suggested that a nursing home could be liable under a professional standard of care for the actions of a licensed nurse. See NME Properties, 590 So.2d at 441. Such a nurse is a “health care provider” for the purposes of section 766.102(1), and we continue to believe that a nursing home could be liable, on a common law claim, for the actions of such a licensed nurse. Thus, if a complaint contained both a count alleging a violation of chapter 400 and a separate claim for professional malpractice under the common law, the presuit requirements of chapter 766 would probably apply to the lawsuit.
The defendants misread NME Properties as requiring compliance with the presuit requirements of chapter 766 when a plaintiff alleges only a breach of the statutory “right to receive adequate and appropriate health care and protective and support services” under section 400.022(1)(l).... [W]e reject such a requirement.

Integrated Health Care Services, Inc. v. Lang-Redway, 783 So.2d 1108, 1109-10 (Fla. 2d DCA 2001) (footnote omitted). The district court of appeal then recognized that this issue (i.e., whether the pre-suit conditions in chapter 766 apply to claims filed under chapter 400) has been a difficult issue of statewide concern and, accordingly, certified the above question as one of great public importance.

DISCUSSION

Stated simply, the issue presented in this case is whether a plaintiff alleging that a nursing home violated its statutory duty to provide adequate and appropriate health care must comply with two separate presuit requirements. Before answering this question, we first examine the relevant statutory provisions of chapter 766 and chapter 400, Florida Statutes (1997). Chapter 766 provides certain statutory prerequisites to the filing of a lawsuit involving a medical malpractice claim while chapter 400 sets forth statutory prerequisites for filing a suit against a nursing home.

CHAPTER 766

In 1988, the Legislature made explicit findings, recognizing that medical malpractice claims resulted in increased medical care costs for most patients and prevented some physicians from being able to obtain malpractice insurance. In an attempt to alleviate these problems, the Legislature structured a statutory scheme that would encourage the early settlement of meritorious claims while screening out frivolous claims. See ch. 88-1, § 48, at 164, Laws of Fla.

Pursuant to section 766.208(1), presuit investigation requirements apply to all medical negligence claims, a term which is defined as “medical malpractice, whether grounded in tort or in contract.” § 766.202(6), Fla. Stat. (1997). The claimant bringing such an action must investigate and corroborate that there are reasonable grounds to believe that all named defendants were negligent in the care and treatment and that such negligence resulted in the claimant’s injury:

(1) Presuit investigation of medical negligence claims and defenses pursuant to this section and ss. 766.204-766.206 shall apply to all medical negligence, including dental negligence, claims and defenses....
(2) Prior to issuing notification of intent to initiate medical malpractice litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

§ 766.203(1)-(2), Fla. Stat. (1997). After the claimant completes the presuit investigation, she or he must then notify each “prospective defendant” of the intent to initiate litigation prior to filing a claim for medical malpractice. See § 766.106(2)-(3)(a), Fla. Stat. (1997). If the defendant is a licensed physician, osteopath, chiropractor, podiatrist, or dentist, the plaintiff must also notify the Department of Business and Professional Regulation. After the presuit investigation is complete, the parties may elect to enter voluntary binding arbitration pursuant to sections 766.207-766.212.

In reviewing chapter 766, courts have been plagued by a lack of comprehensive definitions, including a definitive statement as to who are considered “health care providers” covered by chapter 766’s presuit requirements. For example, throughout chapter 766, the term “health care provider” has three different definitions, the broadest of which defines “health care provider” as

hospitals licensed under chapter 395; physicians licensed under chapter 458; osteopaths licensed under chapter 459; podiatrists licensed under chapter 461; dentists licensed under chapter 466; chiropractors licensed under chapter 460; naturopaths licensed under chapter 462; nurses licensed under chapter k64,; clinical laboratories registered under chapter 488; physicians’ assistants certified under chapter 458; physical therapists and physical therapist assistants licensed under chapter 486; health maintenance organizations certificated under part II of chapter 641; ambulatory surgical centers as defined in paragraph (c); blood banks, plasma centers, industrial clinics, and renal dialysis facilities; or professional associations, partnerships, corporations, joint ventures, or other associations for professional activity by health care providers.

§ 768.50(2)(b), Fla. Stat. (1985) (emphasis added).

In Weinstock v. Groth, 629 So.2d 835 (Fla.1993), this Court reviewed the issue of which health care providers were covered by the presuit notice requirements in chapter 766. The plaintiff filed a negligence action against Weinstock, a clinical psychologist, when Weinstock allegedly entered into an affair with the plaintiffs husband while still counseling the plaintiff relative to marital problems. Id. at 836. Weinstock filed a motion to dismiss, asserting that since the plaintiff was bringing a malpractice action against her, she had to comply with the presuit requirements of chapter 766. After noting that a psychologist is not defined in chapter 766 as a “health care provider,” the Court agreed that this indicated a legislative intent that psychologists should not be classified as such. Id. at 837. The Court concluded that the proper test for determining whether a defendant is entitled to the presuit requirement of notice under section 766.106(2) is “whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1).” Id. at 838. Lang-Redway’s cause of action arose in 1997 and is governed by section 766.102(1), which for the purpose of defining “health care provider” incorporates a cross-reference to section 768.50(2)(b), which was repealed in 1986. However, the repeal of the cross-referenced statute does not render the descriptive reference inapplicable. Instead, this Court must look to the language of section 768.50(2)(b) at the time that the specific cross-reference was enacted. See Overstreet v. Blum, 227 So.2d 197, 198 (Fla.1969) (“It is proper for a statute to adopt all or a part of another statute by specific and descriptive reference thereto. When this is done the adoption takes the statute as it exists at that time.”) Thus by reference, a “health care provider” includes hospitals, physicians, podiatrists, dentists, chiropractors, naturo-paths, nurses, clinical laboratories, physicians’ assistants, physical therapists and physical therapist assistants, health maintenance organizations, and associations for professional activity by health care providers, as well as certain ambulatory surgical centers, blood banks, plasma centers, industrial climes, and renal dialysis facilities.

CHAPTER m

Chapter 400, on the other hand, provides for the development and enforcement of basic standards of care imposed upon nursing homes. Section 400.022 creates twenty-two unique statutory requirements applicable to nursing homes. One of these requirements guarantees nursing home residents:

The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency.

§ 400.022(1)(l), Fla. Stat. (1997) (emphasis added). If these rights are violated, a resident may file an action pursuant to section 400.023, which provides in part: “Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation.” § 400.023(1), Fla. Stat. (1997). After this Court decided Weinstock, the Legislature amended section 400.023 to add the following subsections:

(3) A licensee shall not be liable for the medical negligence of any physician rendering care or treatment to the resident except for the services of a medical director as required in this part. Nothing in this subsection shall be construed to protect a licensee from liability for failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.
(4) Claimants alleging a deprivation or infringement of adequate and appropriate health care pursuant to s. 400.022(l)(k) which resulted in personal injury to or the death of a resident shall conduct an investigation which shall include a review by a licensed physician or registered nurse familiar with the standard of nursing care for nursing home residents pursuant to this part. Any complaint alleging such a deprivation or infringement shall be accompanied by a verified statement from the reviewer that there exists reason to believe that a deprivation or infringement occurred during the resident’s stay at the nursing home. Such opinion shall be based on records or other information available at the time that suit is filed. Failure to provide records in accordance with the requirements of this chapter shall waive the requirement of the verified statement.
(5) For the purposes of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident.

§ 400.023, Fla. Stat. (1997) (emphasis added).

ANALYSIS

In the current case, each count of the plaintiffs complaint alleged that the nursing home failed to provide for the degree of care mandated by section 400.022. Since this claim relies upon the right to receive adequate health care and services from the nursing home, the plaintiff was required to (and in fact did) follow the presuit requirements within chapter 400. Bon Secours asserts that the plaintiff is alleging that the defendant’s licensed nurses committed acts of medical negligence, and hence the plaintiff must abide by the separate presuit conditions of chapter 766 before Bon Secours can be vicariously liable for the medical malpractice of a member of its nursing staff. We disagree.

As we have previously held, in order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1). In this case, the plaintiff is filing an action against the nursing home based solely upon the violation of the statutory obligations imposed by section 400.022. As section 400.022(1)(l) provides its own standard of care, the medical negligence standard of care and the corresponding presuit requirements of chapter 766 are inapplicable. Moreover, section 400.023 clearly demonstrates that the Legislature intended a nursing home to be liable for the “failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.” § 400.023(3), Fla. Stat. (1997). Accordingly, we do not find that the plaintiff has pled a medical malpractice cause of action against a health care provider which would require her to abide by the presuit requirements of chapter 766.

Bon Secours’ argument that the Legislature intended plaintiffs to abide by two separate presuit requirements is clearly at odds with the Legislature’s purpose in promulgating sections 400.022 and 400.023. It is the clear legislative intent to provide nursing home residents with a statutorily imposed standard of care, protection, and support services. As this Court has reiterated on numerous occasions, “when possible the presuit notice and screening statute should be construed in a manner that favors access to courts.” Patry v. Capps, 633 So.2d 9, 13 (Fla.1994).

Nursing homes employ numerous types of employees to care for their residents, including licensed nurses, aides, dieticians, and housekeepers. In this case, for example, the plaintiff contends that the nursing home denied Redway his right to appropriate health care by failing to protect him from falling and from developing pressure sores. These failures may have been caused by the nursing staff, by the nursing home in not having adequate staff, by the negligence of aides or other workers, or by a combination of the above.

For the above-noted reasons, we approve the district court’s decision and answer the certified question in the negative.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, and QUINCE, JJ„ and HARDING, Senior Justice, concur.

LEWIS, J., concurs in result only.

      . Bon Secours is the only defendant involved in the petition before this Court.

      . The term "prospective defendant” is not defined in the statute.

      . Section 766.106 provides in relevant part:
      (2) After completion of presuit investigation pursuant to s. 766.203 and prior to filing a claim for medical malpractice, a claimant shall notify each prospective defendant and, if any prospective defendant is a health care provider licensed under chapter 458 [relating to physicians], chapter 459 [relating to osteopaths], chapter 460 [relating to chiropractors], chapter 461 [relating to podiatrists], or chapter 466 [relating to dentists], the Department of Business and Professional Regulation by certified mail, return receipt requested, of intent to initiate litigation for medical malpractice....
      (3)(a) No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant's insurer or self-insurer shall conduct a review to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period.
      § 766.106(2)-(3)(a), Fla. Stat. (1997).

        . See NME Properties, Inc. v. McCullough, 590 So.2d 439, 440 n. 1 (Fla. 2d DCA 1991) ("We have recently lamented the difficulty of interpreting chapter 766 because the chapter lacks comprehensive definitions.”).

      . Specifically, section 766.102(1), Florida Statutes (1997), defines this standard as follows:
      In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

      . Ch. 77-64, §§ 7-8, at 110-11, Laws of Fla.

      . Although the decision in Weinstock did not involve the application of chapter 400, within the decision, this Court relied upon and adopted the reasoning of NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991), which held "although a nursing home is not a health care provider as defined under chapter 766, the notice provisions of the Act apply to a negligence action against a nursing home if the professional medical negligence standard of care set forth in section 766.102 applied to the active tortfeasor — the agent or employee of the nursing home.” Weinstock, 629 So.2d at 837 (citing McCullough, 590 So.2d at 441).

      . See § 400.022(l)(f), Fla. Stat. (1997) (guaranteeing "[t]he right to receive adequate and appropriate health care ... services ... consistent with ... established and recognized practice standards within the community, and with rules as adopted by the agency”).

      . We limit this holding to those cases where the plaintiff has limited his or her cause of action to violations of section 400.022.


author: PER CURIAM. PARIENTE, J.,

text:
    George PORTER, Jr., Petitioner, v. James V. CROSBY, Jr., etc., et al., Respondents.
    No. SC01-2707.
    Supreme Court of Florida.
    Jan. 9, 2003.
    Rehearing Denied March 13, 2003.

      Kevin T. Beck, Assistant CCRC, and Leslie Anne Scalley, Staff Attorney, Capital Collateral Regional Counsel — Middle, Tampa, FL, for Petitioner.
    Charlie Crist, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

George Porter, Jr. petitions this Court for writ of habeas corpus. We have jurisdiction, see art. V, § 3(b)(9), Fla. Const., and deny the petition.

Porter pled guilty to the 1985 first-degree shooting murders of Evelyn Williams and Walter Burrows. Porter received a death sentence for Williams’ murder and a life sentence for Burrows’ murder. The facts are more fully set forth in our opinion in Porter’s direct appeal. See Porter v. State, 564 So.2d 1060, 1061-62 (Fla.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991). Porter filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied relief, and we affirmed that denial. See Porter v. State, 788 So.2d 917 (Fla.2001), cert. denied, 534 U.S. 1004, 122 S.Ct. 484, 151 L.Ed.2d 397 (2001). Porter now raises several claims and subclaims in his petition for writ of habeas corpus (habeas petition).

Claims of ineffective assistance of appellate counsel are cognizable in a habeas petition. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). The standard of review applicable to claims of ineffective assistance of appellate counsel raised in a habeas petition mirrors the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for trial counsel ineffectiveness. See Jones v. Moore, 794 So.2d 579, 583 (Fla.2001). However, claims raised in a habeas petition which petitioner has raised in prior proceedings and which have been previously decided on the merits in those proceedings are procedurally barred in the habeas petition. See Mann v. Moore, 794 So.2d 595, 600-01 (Fla.2001); see also Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (“[H]abeas corpus petitions are not to be used for additional appeals on questions which ... were raised on appeal or in a rule 3.850 motion.... ”). Moreover, it is improper to argue in a habeas petition a variant to a claim previously decided. See Jones, 794 So.2d at 586 (finding procedural bar to habeas claim which was variant to claim previously addressed). We find claim one and subclaims (c), (d), and (e) of claim two to be procedurally barred because we have previously addressed those claims or a variant to those claims. We address Porter’s remaining claims in turn.

Porter contends in subclaim (a) of claim two that appellate counsel was ineffective for failing to raise improper prosecutorial antics and arguments which constituted fundamental error. In addition to events occurring prior to Porter pleading guilty, Porter alleges that an off-the-record discussion, a prosecutorial comment concerning an attorney lying on the floor, and a commotion occurring during the penalty phase closing illustrate the ineffectiveness claim. Porter’s trial counsel, however, did not object to any of these items. As the items were not preserved, appellate counsel cannot be ineffective for not raising those contentions on appeal unless those contentions constituted fundamental error. See Spencer v. State, 27 Fla. L. Weekly S323 (Fla. April 11, 2002). We have explained:

In order for an error to be fundamental and justify reversal in the absence of a timely objection, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” In order for improper comments made in the closing arguments of a penalty phase to constitute fundamental error, they must be so prejudicial as to taint the jury’s recommended sentence.

Id. at S329 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

Porter asserts that appellate counsel was ineffective for failing to raise as an appellate point an off-the-record discussion that constituted fundamental error. The off-the-record discussion concerned a brief conversation between the prosecutor and the trial judge during the penalty phase. The prosecutor became upset at one of the trial judge’s rulings. In order to not embarrass the prosecutor, the trial judge requested the prosecutor to step outside to calm down. The trial judge followed the prosecutor out into the hallway, whereupon the prosecutor indicated that the trial judge was “sanitizing” the proceedings by preventing the jury from hearing the true horrific nature of the murders. The trial judge immediately ceased the conversation. Shortly thereafter, in chambers and on the record, the trial judge disclosed to defense counsel, Porter, and the prosecutor what had occurred and offered defense counsel the ability to voir dire the trial judge and prosecutor. Defense counsel declined the offer and stated that Porter suffered no prejudice. Porter has failed to demonstrate how this encounter prejudiced him. Clearly, the jury was unaware of the encounter and still recommended death by a vote of twelve to zero. Nor is there a basis to reasonably conclude that this encounter prejudiced the trial judge. This claim does not constitute fundamental error.

Porter’s next fundamental error contention is that the prosecutor made reference to the fact that during the guilt phase, the prosecutor acted as a mannequin to illustrate the path of the bullets through the victim’s body. Porter asserts that the prosecutor’s conduct was highly improper and inflammatory. We have examined the brief statement by the prosecutor in its context, and we conclude the remark did not constitute fundamental error. See Jones, 794 So.2d at 589 (finding prosecutorial argument which in that case was more egregious did not constitute fundamental error).

Porter also contends that there was a courtroom commotion occurring during the prosecutor’s penalty phase closing argument, and appellate counsel should have raised that issue on appeal. The record reflects that the trial judge interrupted the prosecutor during the prosecutor’s penalty phase closing argument and sent the jury outside. At that point, the trial judge addressed the courtroom audience and requested that the audience members not stare at the defendant and otherwise maintain their composure by not crying. The trial judge then stated that he had been watching the jury and that the jury had not seen any disturbance. There is no basis to reasonably conclude that the trial judge’s statement was incorrect or that the jury’s unanimously recommended death sentence was tainted. We have examined the totality of Porter’s contentions and conclude that none of them singularly or collectively constitute fundamental error. Thus, we conclude this subclaim is merit-less.

Next, in subclaim (b) of claim two, Porter contends that his appellate counsel was ineffective for failing to raise on appeal the trial court’s consideration of nonstatutory aggravating circumstances in its sentencing order. The State counters by contending this claim is procedurally barred. We conclude that this claim is not procedurally barred but that it is merit-less.

Appellate counsel did not raise the non-statutory aggravation argument on direct appeal. While Porter raised an identical claim in his rule 3.850 motion, we found the claim to be procedurally barred because the claim should have been brought on direct appeal. See Porter, 788 So.2d at 921 (citing Remeta v. Dugger, 622 So.2d 452, 453-54 (Fla.1993)). Because this claim should have been brought on direct appeal and was not, we examine the claim here to determine whether Porter was prejudiced by the claim not being presented on direct appeal.

We conclude that Porter was not prejudiced because we find from a review of the sentencing order that the trial court only considered in aggravation the statutory aggravating circumstances. Porter points to the discussion concerning the time of the crime, the bullet paths, and the number of gun shots by the trial court in the sentencing order. However, this discussion was in respect to the heinous, atrocious, or cruel (HAC) aggravator finding. See State v. Porter, No. 86-5546-CF-A, order at 4-5 (Fla. 18th Cir. Ct. order filed Mar. 4, 1988). Moreover, what Porter claims as nonstatutory aggravation in actuality are simply the facts of the case. Because the trial court did not consider nonstatutory aggravating circumstances, Porter has failed to demonstrate that his appellate counsel was ineffective for not arguing this claim on direct appeal. See Rutherford, 774 So.2d at 643 (holding appellate counsel is not ineffective for not arguing a claim with little or no merit).

In claim three, Porter argues that his death sentence is unconstitutional as applied to him in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Porter contends that under Florida law, a life sentence is the maximum penalty under section 775.082, Florida Statutes (1985), and therefore aggravating circumstances necessary for an enhancement to a death sentence are elements of the crime. Moreover, he contends that Apprendi requires that the aggravating circumstances needed to have been charged in the indictment, submitted to the jury, and individually found by a unanimous jury verdict. Contrary to Porter’s claims, we have repeatedly held that the maximum penalty under the statute is death and have rejected the other Apprendi arguments. See Mills v. Moore, 786 So.2d 532, 536-37 (Fla.2001); see also Mann, 794 So.2d at 599. Thus, this issue is meritless.

Regarding claim five, that Porter may be incompetent to be executed, we agree with Porter’s concession that this claim is not yet ripe and is therefore without merit. See, e.g., Brown v. Moore, 800 So.2d 223, 224 (Fla.2001); Mann, 794 So.2d at 602. We find that Porter’s claim four and subclaim (f) of claim two, the cumulative error claims, are insufficiently pled under Strickland because Porter points to no specific claim of error; instead, he only generally asserts there were errors revealed in the direct appeal, the rule 3.850 motion, the appeal of the denial of the rule 3.850 motion, and this habeas petition. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000) (“The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.”). Regardless of the insufficiency of the pleading, as all of his claims are either meritless or procedurally barred, there is no cumulative effect to consider. See Mann, 794 So.2d at 602. Accordingly, we deny the petition for writ of habeas corpus.

It is so ordered.

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

ANSTEAD, C.J., and SHAW, Senior Justice, concur in result only.

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

PARIENTE, J.,

concurring in result only.

I concur in the denial of relief under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), for the same reasons as in my concurring-in-result-only opinions in Bottoson v. Moore, 27 Fla. L. Weekly S891, 833 So.2d 693(Fla. 2002), and King v. Moore, 831 So.2d 143, 27 Fla. L. Weekly S906 (Fla. Oct. 24, 2002). Although I believe that Ring compels us to recede from our statement in Mills v. Moore, 786 So.2d 532, 537-38 (Fla.2001), that death is the maximum penalty authorized for a first-degree murder verdict under Florida law, this conclusion yields Porter no relief.

Two aggravating circumstances were based on Porter’s contemporaneous convictions by a jury, during the guilt phase, of a second murder, aggravated assault, and burglary as part of the same criminal episode. See Porter v. State, 564 So.2d 1060, 1062 n. 2 (Fla.1990). Furthermore, similar to King, the jury unanimously recommended the death penalty for Porter. See Porter v. State, 788 So.2d 917, 920 (Fla.2001). Accordingly, Porter is not entitled to relief under Ring and I concur in result only as to the denial of his habeas petition on this issue.

      . Prior to filing this rule 3.850 motion, Porter filed an improperly sworn rule 3.850 motion. On appeal of the trial court's denial of that motion, we dismissed Porter’s appeal to allow Porter to file a properly sworn motion for postconviction relief. See Porter v. State, No. SC82509 (Fla. order filed Nov. 29, 1994). By separate order, we denied Porter's pro se habeas petition related to this issue. See Porter v. State, No. SC84159 (Fla. order filed Nov. 29, 1994).

      . In light of the claims being misnumbered, we have renumbered Porter's claims and lettered the subclaims. Porter contends that: (1) the death sentence is disproportionate in light of trial counsel’s failure to present mitigating evidence; (2) appellate counsel was ineffective for failing to raise on appeal: (a) improper prosecutorial antics and arguments that constituted fundamental error; (b) that the trial court considered nonstatutory aggravating circumstances; (c) that the trial court failed to find certain mitigating factors; (d) that penalty phase counsel was ineffective; (e) that the record on appeal was not complete; and (f) cumulative error; (3) the death sentence is unconstitutional as applied to him in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (4) cumulative error warrants reversal of the death sentence; and (5) he might be incompetent to be executed.

      . Claim one was denied on direct appeal. See Porter, 564 So.2d at 1064-65. Subclaims (c) and (d) of claim two are variants to the claim of trial counsel’s ineffectiveness extensively addressed and denied in the rule 3.850 proceeding. See Porter, 788 So.2d at 921-25. Subclaim (e) of claim two, the complete record claim, was addressed in the rule 3.850 proceeding. See id. at 926. Indeed, with regard to that claim, we explained:
      In fact, a comparison of the record that Porter has now obtained from postconviction counsel to the record on appeal reveals that the record on appeal was more complete and comprehensive. Therefore, Porter suffered no prejudice as a result, and no evidentiary hearing was required.

        Id.

      . Porter pled guilty. Thus, this claim is only applicable to the death sentence and not to the plea.

      . This Court struck the HAC aggravator on direct appeal. See Porter, 564 So.2d at 1063.

      . We have denied relief for postconviction claims based upon similar arguments. See Bottoson v. Moore, 833 So.2d 693 (Fla. 2002); King v. Moore, 831 So.2d 143 (Fla.2002).


author: WELLS, J. PARIENTE, J.,

text:
    STATE of Florida, Petitioner, v. Lorenzo SMITH, Respondent.
    No. SC01-1456.
    Supreme Court of Florida.
    Feb. 6, 2003.

      Charles J. Crist, Jr., Attorney General, and Mary G. Jolley and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, for Petitioner.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Respondent.
   WELLS, J.

We have for review Smith v. State, 785 So.2d 623, 625-26 (Fla. 5th DCA 2001), which expressly and directly conflicts with the decision in Chaeld v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we quash the decision below in part and direct that respondent’s false imprisonment conviction be affirmed.

The respondent was convicted by a jury of burglary of a dwelling, robbery with a weapon, and false imprisonment. The facts are more fully set forth in the district court’s opinion. See Smith, 785 So.2d at 624-25. The district court agreed with the respondent’s argument that the false imprisonment was incidental to and inherent in the robbery, reversed the conviction for false imprisonment, but otherwise affirmed. See id. at 625-26. Regarding the reversal of the false imprisonment conviction, the district court compared Formor v. State, 676 So.2d 1013, 1015 (Fla. 5th DCA 1996), which reversed a kidnapping conviction based on the test announced in Faison v. State, 426 So.2d 963 (Fla.1983). See Smith, 785 So.2d at 625-26. The district court held:

Although the state argues that Faison, which involved a kidnapping charge, should not be applied to cases involving false imprisonment charges, this court has previously done so. See Keller v. State, 586 So.2d 1258, 1261-62 (Fla. 5th DCA 1991) (reversing convictions for false imprisonment where false imprisonment was incidental to sexual battery); but see Chaeld v. State, 599 So.2d 1362 (Fla. 1st DCA 1992) (refusing to apply Faison to false imprisonment charge). Therefore, there is no real legal difference between the convictions in Formor, robbery and kidnapping, and the convictions in the instant case, robbery and false imprisonment. Although Smith did not object below to this error, the error is fundamental.

Smith, 785 So.2d at 626 (citation omitted).

The respondent was convicted of false imprisonment under section 787.02(1)(a), Florida Statutes (1997), and robbery under section 812.13, Florida Statutes (1997). Section 787.02(1)(a) defines false imprisonment as

forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.

Section 812.13 defines robbery as

the taking of money or other property which may be the subject of larceny from the person or custody of another, with the intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Section 775.021(4)(b), Florida Statutes (1997), entitled “Rules of construction,” expressly states:

The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Because the respondent’s convictions for false imprisonment and robbery do not meet the exceptions listed in section 775.021(4)(b), the convictions are separate criminal offenses committed in the course of one criminal episode. Thus, the respondent was properly convicted of both robbery and false imprisonment, and the district court erred in reversing the respondent’s false imprisonment conviction.

The Faison test is not applicable to false imprisonment convictions because the test was established for a particular element of the kidnapping statute that is not included in the false imprisonment statute. Kidnapping is defined in section 787.01(l)(a), Florida Statutes (1997), as follows:

The term kidnapping means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.

As this Court stated in Berry v. State, 668 So.2d 967, 969 (Fla.1996), the Faison test was established because

this Court recognized that a literal interpretation of subsection 787.01(l)(a)2 would result in a kidnapping conviction for “any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.” Thus, in an effort to limit the circumstances under which a confinement, abduction, or imprisonment will constitute kidnapping under subsection 787.01(1) (a) 2, this Court in Faison adopted the test of the Supreme Court of Kansas.

Berry, 668 So.2d at 969 (emphasis added). False imprisonment does not contain a provision requiring proof of the intent to commit or facilitate commission of any felony and therefore Faison is not applicable.

In State v. Lindsey, 446 So.2d 1074, 1076 (Fla.1984), this Court cited to Faison as support for upholding a false imprisonment conviction. This Court stated:

The district court ... rejected [the respondents’] other point on appeal in which they argued that their convictions for false imprisonment were reversible error because the acts of confinement were incidental to the commission of the offense of robbery or to the assault element of the aggravated burglary offense. The respondents now argue that this latter ruling by the district court of appeal was error. We disagree. The offense of false imprisonment was proved by evidence that the intruders confined the victim by tying her up with rope. It was entirely separate from the element of force exerted in committing the robbery and from the element of assault relied upon to aggravate or enhance the offense of burglary. See Faison v. State, 426 So.2d 963 (Fla.1983). Moreover, even if there were elements of factual proof common to two or more of the crimes, it is not clear that this would entitle respondents to the relief they seek since the matter of what statutory crimes were committed by the respondents’ acts is purely one of legislative intent. See 775.021(4), Fla. Stat. (1979); Borges v. State, 415 So.2d 1265 (Fla.1982). We therefore approve the decision of the district court of appeal on this second issue.

Lindsey, 446 So.2d at 1076 (citation omitted). This passing reference to Faison has understandably caused some confusion.

After Lindsey, several district courts applied the Faison test to false imprisonment. See, e.g., Taylor v. State, 771 So.2d 1233, 1234 (Fla. 2d DCA 2000); Rohan v. State, 696 So.2d 901, 903 (Fla. 4th DCA 1997); Keller v. State, 586 So.2d 1258, 1261-62 (Fla. 5th DCA 1991); Perez v. State, 566 So.2d 881, 884 (Fla. 3d DCA 1990). However, in Chaeld v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992), the court held that a jury instruction based on Faison was not applicable when a charge alleges false imprisonment. The Chaeld court held:

This so-call Faison instruction must be given upon the defendant’s request whenever the state charges kidnapping with the intent to commit or facilitate the commission of a felony under § 787.01(l)(a)2. It has no application when the charge alleges that the defendant kidnapped the victim with any of the other specific intentions identified in § 787(l)(a)l, 3 or 4. See Bedford v. State, 589 So.2d 245, 251 (Fla.1991) (holding that a defendant charged with kidnapping with the intent to inflict bodily harm upon or terrorize the victim is not entitled to a Faison instruction).
Because the Faison instruction is implicated only when the state is attempting to prove a kidnapping with the intent to commit or facilitate the commission of a felony, and the crime of false imprisonment by definition and as interpreted by the supreme court in Sanborn does not require proof of such intent, we conclude that the judge properly denied the appellant’s request for a Faison instruction.

Id. at 1364 (citations omitted). The Chaeld court noted that its holding possibly conflicted with other district court decisions. See id.

The Chaeld court cited this Court’s decision in Bedford v. State, 589 So.2d 245 (Fla.1991), in which this Court stated:

Bedford was charged with confining, abducting, or imprisoning [the victim] with the intent to “[i]nflict bodily harm upon or to terrorize” [the victim] under section 787.01(l)(a), (3), rather than with the intent to “[c]ommit or facilitate commission of any felony,” under subsection 787.01(1)(a), (2). Our decision in Faison v. State, 426 So.2d 963 (Fla.1983), which held that the latter subsection does not apply to unlawful confinements or movements that were merely incidental to or inherent in the nature of the underlying felony, has no application here.

Bedford, 589 So.2d at 251 (second and fourth alterations in original). This Court’s decision in Bedford clearly supports the conclusion that the Faison test does not apply to the offense of false imprisonment. False imprisonment does not include an element requiring the intent to commit or facilitate commission of a felony, and therefore Faison is not applicable to the offense of false imprisonment. If a criminal defendant can be charged with kidnapping based on intent to terrorize and also be convicted of robbery based on confinement that is inherent to both crimes, it is illogical to find that a person could not be convicted of false imprisonment and robbery when false imprisonment only requires general intent. Requiring Faison to be applied to false imprisonment would effectively be writing an intent element into the false imprisonment statute in derogation of the clear statutory language. Cf. McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”).

Accordingly, we quash the decision below in part, approve the decision of the First District Court of Appeal in Chaeld, 599 So.2d at 1364, and hold that the Faison test is not applicable to the offense of false imprisonment. On remand, the respondent’s false imprisonment conviction should therefore be affirmed.

It is so ordered.

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

PARIENTE, J., dissents with an opinion, in which ANSTEAD, C.J., and SHAW, Senior Justice, concur.

PARIENTE, J.,

dissenting.

I dissent because I would hold that the reasoning of Faison v. State, 426 So.2d 963 (Fla.1983), is applicable to cases of false imprisonment. Faison was intended to prevent all unlawful confinements incidental to other felonies from also being punished as kidnappings by providing a framework for analyzing whether a defendant’s conduct amounts to a confinement crime separate from other felonies that inherently involve the use of force. Without the Faison limitations, any felony that “inherently involves the unlawful confinement of another person, such as robbery or sexual battery,” would also be a kidnapping. Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982) (emphasis supplied); see generally Berry v. State, 668 So.2d 967 (Fla.1996).

As Judge Gross explained in Rohan v. State, 696 So.2d 901, 903 (Fla. 4th DCA 1997), in concluding that the Faison test applies to false imprisonment:

Chaeld [v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992) ] holds that a Fai-son analysis does not apply to a false imprisonment charge, only to kidnapping. To reach this conclusion, the court focuses on the scienter requirement of the kidnapping and false imprisonment statutes. However, the rationale of Faison is that the conduct element of section 787.01(1)(a) — “confining, abducting, or imprisoning another person against his will” — must be limited to avoid a broad construction that would doubly criminalize the same conduct. Berry, 668 So.2d at 969. The false imprisonment statute, section 787.02(1)(a), Florida Statutes (1995), contains a conduct element similar to that of kidnapping; without any limitation it might apply in almost every forcible felony. For this reason, a Fai-son analysis is as appropriate to limit the scope of false imprisonment as it limits kidnapping.

Id. at 903 n. 1.

I agree. False imprisonment is a necessarily lesser included offense of kidnapping. See State v. Sanborn, 533 So.2d 1169, 1170 (Fla.1988). Because both the kidnapping statute and the false imprisonment statute contain the same conduct element that without limitation might apply to almost every forcible crime, a Faison analysis is equally applicable to both offenses.

Similar to the kidnapping statute, a literal reading of the false imprisonment statute would turn every forcible crime into a false imprisonment, including the brief motel-room robbery in this case. See Smith v. State, 785 So.2d 623, 624 (Fla. 5th DCA 2001). The purpose of Faison is to ensure that the confinement crime is distinct from other criminal charges involving forcible felonies. For this reason, I would hold that the Faison test is as applicable to false imprisonment as it is to kidnapping.

ANSTEAD, C.J., and SHAW, Senior Justice, concur.

      . Under the Faison test,
      [I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
      (a) Must not be slight, inconsequential and merely incidental to the other crime;
      (b) Must not be of the kind inherent in the nature of the other crime; and
      (c)Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

        Faison, 426 So.2d at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)) (alteration in original).

      . Convicting the respondent of both robbery and false imprisonment does not violate the Double Jeopardy Clause. See U.S. Const. amend. V; art. I, § 9, Fla. Const. “The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense.” Gordon v. State, 780 So.2d 17, 19 (Fla.2001). Application of the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), codified in section 775.021, reveals that the Double Jeopardy Clause is not violated because the statutory elements of false imprisonment are different from the elements of robbery. Compare § 787.02, Fla. Stat. (1997), with § 812.13, Fla. Stat. (1997). False imprisonment is a separate offense from robbery.

      . This Court recognized the difference between the crimes of kidnapping and false imprisonment in State v. Sanborn, 533 So.2d 1169, 1170 (Fla.1988).
      A comparison of sections 787.01 (1 )(a) and 787.02(l)(a) reveals they are identical except for the question of intent. We find the general intent of section 787.02(l)(a) (false imprisonment) is included in the specific intent of section 787.01(l)(a) (kidnapping), consequently false imprisonment is a necessarily lesser included offense.

      . The parties in Chaeld did not seek review of the district court’s decision.

      . Examination of the standard jury instructions for kidnapping and false imprisonment also supports the conclusion that Faison is only applicable to the offense of kidnapping. While the instruction for kidnapping requires a Faison instruction when intent to commit or facilitate the commission of a felony is alleged, the instruction for false imprisonment has no comparable language. Compare Fla. Std. Jury Instr. (Crim.) 9.1 with Fla. Std. Jury Instr. (Crim.) 9.2; see also Chaeld, 599 So.2d at 1364.

      . Under Faison,

      [I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
      (a)Must not be slight, inconsequential and merely incidental to the other crime;
      (b) Must not be of the kind inherent to the other crime; and
      (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

        Faison v. State, 426 So.2d 963, 965 (Fla.1983); see Berry v. State, 668 So.2d 967, 969 (Fla.1996).


author: QUINCE, J.

text:
    Barry I. HECHTMAN, et al., Petitioners, v. NATIONS TITLE INSURANCE OF NEW YORK, et al., Respondents.
    No. SC00-2242.
    Supreme Court of Florida.
    Feb. 6, 2003.

      Hendrik G. Milne of Aballi, Milne, Kalil & Garrigo, P.A., Miami, FL, for Petitioners.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, FL; and Robert A. Cohen of Cohen/Fox, P.A., Miami, FL, for Respondents.
   QUINCE, J.

We have for review a decision on the following question certified by the Third District Court of Appeal to be of great public importance:

WHETHER § 627.792, FLA. STAT. (1997), WHICH PROVIDES THAT AN INSURER IS LIABLE FOR THE MISFEASANCE OF A “LICENSED TITLE INSURANCE AGENT” APPLIES TO A TITLE INSURANCE AGENT WHO IS AN ATTORNEY AND IS THEREFORE EXEMPT FROM LICENSING AS A TITLE INSURANCE AGENT BY THE DEPARTMENT OF INSURANCE UNDER § 626.8417, FLA. STAT. (1997).

Hechtman v. Nations Title Ins. New York, Inc., 767 So.2d 505, 509 (Fla. 3d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we answer the certified question in the negative and find that section 627.792, Florida Statutes (1997), does not apply to attorneys who are acting as title insurance agents if those attorneys are exempt from the licensing requirements of section 626.8417, Florida Statutes (1997).

Barry and Brenda Hechtman brought suit against Nations Title Insurance of New York (Nations Title) and Commonwealth Land Title Insurance Company (Commonwealth), pursuant to section 627.792, Florida Statutes (1997), alleging that Nations Title and Commonwealth were liable to them for' the defalcation of funds committed by a licensed Florida attorney who was serving as a title insurance agent on behalf of the insurance companies. The attorney held the Hechtmans’ funds in his attorney escrow account and subsequently misappropriated the funds for his own use. Section 627.792 makes title insurers liable for the defalcation of funds by their licensed title agents if the funds are held in trust pursuant to section 626.8473, Florida Statutes (1997). Specifically, section 627.792 provides as follows:

A title insurer is liable for the defalcation, conversion, or misappropriation by a licensed title insurance agent of funds held in trust by the agent pursuant to s. 626.8473. If the agent is licensed by two or more title insurers, any Lability shall be borne by the title insurer upon which a title insurance binder, commitment, policy, or title guarantee was issued prior to the illegal act. If no binder, commitment, policy, or guarantee was issued, each title insurer represented by the agent at the time of the illegal act shares in the liability in the same proportion that the premium remitted to it by the agent during the 1 year period before the illegal act bears to the total premium remitted to all title insurers by the agent during the same time period.

Generally, however, attorneys licensed to practice law in Florida who serve as title insurance agents are statutorily exempt from the title insurance licensing requirements. See § 626.8417(4)(a), Fla. Stat. (1997). Attorneys who are exempt from the title insurance licensing requirements may act as escrow agents and hold funds in their attorney trust accounts pursuant to Rules Regulating the Florida Bar 4-1.15, 5-1.1, and 5-1.2. Ordinarily, a nonattorney may not act as an escrow agent; however, the nonattorney may do so pursuant to section 626.8473 if he or she is licensed as a title insurance agent under section 626.8417. In most cases, attorneys act as title insurance agents pursuant to their license to practice law, not by virtue of a license issued by the Department of Insurance; therefore, they hold the insured’s funds in escrow pursuant to the Rules Regulating the Florida Bar.

The Hechtmans argue that it is irrelevant whether the title insurance agent is acting pursuant to a license to practice law or pursuant to a license issued by the Department of Insurance, and it does not matter if their funds were held in escrow pursuant to the authority granted by section 626.8473 or the authority of the Rules Regulating the Florida Bar. The Hechtmans maintain that the intent of section 627.792 is to hold a title insurer liable for the defalcation of funds held in escrow by any of its agents, regardless of the authority under which the agent acts.

The question presented here is whether the Legislature intended to include in section 627.792 title insurance agents not licensed under chapter 627, Florida Statutes (1997). Legislative intent is the polestar by which a court must be guided in interpreting the provisions of a law. See City of Clearwater v. Acker, 755 So.2d 597 (Fla.1999). In ascertaining the legislative intent, a court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another. See M.W. v. Davis, 756 So.2d 90 (Fla.2000); Hawkins v. Ford Motor Co., 748 So.2d 993 (Fla.1999). To that end, we are required to consider and give meaning to the Legislature’s reference to section 626.8473 in section 627.792 and give meaning to the language which limits a title insurer’s liability for defalcation of funds by its agents to those “funds held in trust by the agent pursuant to § 626.8473.” § 627.792, Fla. Stat. (1997). Not all title insurance transactions involve funds held in trust pursuant to section 626.8473, and if the funds are not held in trust pursuant to section 626.8473, we cannot impute liability to the insurer. The language of the statute, as well as the legislative intent, is clear in this regard.

The Hechtmans argue that the word “licensed,” which is used in the first two sentences of section 627.792, has a different meaning in each sentence. The Hecht-mans claim that in the first sentence of the statute, the word “licensed” means licensed by the Department of Insurance, but in the second sentence, the word “licensed” should be read in a broad sense to mean appointed or given permission to act by the title insurers. Giving the word “licensed” two different meanings within the same statute, the Hechtmans argue, is the only logical way to effectuate the Legislature’s intent to protect the public from any title insurance agent who misappropriates funds from a trust account. The Hechtmans further argue that there is no rational basis to rule otherwise and to do so would be a violation of their equal protection rights. We disagree.

First, if we were to read the statute in the manner proposed by the Hechtmans, we would necessarily be required to ignore the language in the first sentence of the statute that limits liability for the defalcation of only those funds held in trust pursuant to section 626.8473. It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage. See Hawkins v. Ford Motor Co., 748 So.2d 993 (Fla.1999).

Second, in the absence of a fundamental right or a protected class, equal protection requires only that a distinction which results in unequal treatment bear some rational relationship to a legitimate state purpose. See Duncan v. Moore, 754 So.2d 708 (Fla.2000). In this case, there is no fundamental right or protected class involved. To properly apply the rational basis test, we must determine (1) whether the statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the Legislature to believe that the challenged classification would promote that purpose. See State Dep’t. of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 602 (Fla. 1st DCA 1999) (citing Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981); Minnesota v. Clo ver Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981)). As the First District stated in Keys Title, “[i]t would be proper to sustain an equal protection challenge to a statute only if ‘the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.’ ” 741 So.2d at 602 (quoting North Ridge General Hosp. v. City of Oakland Park, 374 So.2d 461, 465 (Fla.1979)).

In this case, the Legislature reasonably distinguished between those title insurance agents doing business pursuant to a license issued by the Department of Insurance and those doing business pursuant to a license to practice law. The Department of Insurance does not have the authority to regulate attorneys and may not oversee or enforce the trust account requirements mandated by the Rules Regulating the Florida Bar. Furthermore, to allow the Department of Insurance access to attorney trust accounts would jeopardize the attorney-client privilege and infringe upon this Court’s authority to regulate the practice of law in Florida. Additionally, victims of those lawyers who are exempt from the Department of Insurance licensing requirements, such as the Hechtmans, may seek compensation from the Clients’ Security Fund offered through The Florida Bar.

It is reasonable to conclude that by enacting section 627.792, the Legislature intended to create an avenue of relief for victims of nonattorney title insurance agents that otherwise did not exist. It is not within our authority to pass upon the wisdom of the Legislature’s classification. We must only consider whether there are any reasonable facts to support the classification attempt made by the Legislature. See Gallagher v. Motors Ins. Corp., 605 So.2d 62, 69 (Fla.1992) (holding that an equal protection challenge must be rejected if there is a “plausible reason for the classification”); Lewis v. Mathis, 345 So.2d 1066 (Fla.1977); Keys Title, 741 So.2d at 602 (citing North Ridge General Hosp. v. City of Oakland Park, 374 So.2d 461 (Fla.1979)). In this case, section 627.792 serves the legitimate governmental purpose of providing an avenue of civil relief for a certain class of victims of defalcation, conversion, or misappropriation of funds held in escrow accounts pursuant to section 626.8473, as this particular class would not otherwise have a civil remedy. Further, it is reasonable for the Legislature to believe that exempting title insurers from liability for certain acts committed by attorneys who act pursuant to their license to practice law would promote that purpose because the victims of these attorneys have other avenues for relief.

We acknowledge Judge Schwartz’s dissent in the court below. Judge Schwartz views section 626.792 as holding title insurers responsible for the defalcation of funds by any agent acting on the insurers’ behalf, be it an agent licensed by the Department of Insurance or an attorney authorized by virtue of a license to practice law. We disagree, however, and find that the plain language of the statute indicates that the statute is not intended to protect all insureds, but only those who obtain title insurance through agents licensed under 626.8417.

For the reasons set forth above, we answer the certified question in the negative and approve the Third District’s decision.

It is so ordered.

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