source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Ian Deco LIGHTBOURNE, Appellant, v. STATE of Florida, Appellee.
    No. SC01-553.
    Supreme Court of Florida.
    Jan. 16, 2003.
    Rehearing Denied March 21, 2003.

      Suzanne Myers, Assistant CCRC, Office of the Capital Collateral Regional Counsel-Southern Region, Fort Lauderdale, FL, for Appellant.
    Charlie Crist, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Ian Deco Lightbourne, a prisoner under sentence of death, appeals an order of the circuit court denying a successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the trial court’s order denying Lightbourne’s motion for postconviction relief.

BACKGROUND

The procedural history of this case, including the facts of the original crime, are fully set forth in our last opinion in this case. See Lightbourne v. State, 742 So.2d 238 (Fla.1999). Lightbourne, a Bahamian immigrant who was twenty-one-years old at the time of the crime, is on death row for the 1981 murder of Nancy O’Farrell, the daughter of an Ocala thoroughbred horse breeder. See id. at 240. Lightb-ourne was found guilty of first-degree murder on the alternate theories of premeditation, felony murder in the commission of a burglary, and felony murder in the commission of a sexual battery. See id. From the time of the first appeal, Lightbourne has attacked the reliability of Theodore Chavers and Theophilus Carson, two jailhouse informants, who testified to incriminating statements allegedly made by Lightbourne regarding the circumstances of the murder.

During the penalty phase, the State did not put on any additional testimony, but rather relied on the evidence presented during the guilt phase, including the testimony of Chavers and Carson. This Court recounted their testimony in its 1999 opinion:

Theodore Chavers, a cellmate in the Marion County Jail, testified that [Lightbourne] “knew too much” about the details of Nancy’s death and made some incriminating statements during the course of their conversations. According to Chavers, petitioner made references indicating that he entered Nancy’s house, encountered her as she was coming out of the shower, forced her to engage in sexual intercourse, and shot her despite pleas for mercy. This version of the facts was corroborated by Theophilus Carson, another cellmate in the Marion County Jail. According to Carson, petitioner admitted forcing Nancy to have sex, shooting her because she could identify him, and taking a necklace and some money.

Id. at 240 (footnotes omitted) (quoting Lightbourne v. Dugger, 829 F.2d 1012, 1016 (11th Cir.1987)).

The jury recommended the death penalty and the trial court imposed a death sentence. The trial court found the following aggravating circumstances: (1) the murder was committed during the commission of a burglary and sexual battery; (2) the murder was committed to avoid arrest; (3) the murder was committed for pecuniary gain; (4) the murder was heinous, atrocious or cruel (“HAC”); and (5) the murder was committed in a cold, calculated and premeditated manner (“CCP”). See id. at 241. The trial court found only two mitigating circumstances: (1) no significant history of criminal activity; and (2) Lightbourne’s relative youth at the time of the crime. See id.

On direct appeal, Lightbourne asserted that his statements to Chavers and Chav-ers’ subsequent testimony regarding those statements were solicited by authorities in violation of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), which prohibits the admission of statements deliberately elicited from the defendant by a government agent in violation of the Sixth Amendment right to counsel. See Lightbourne v. State, 438 So.2d 380, 386 (Fla.1983). Lightbourne maintains that Chavers acted as an agent for the State when he questioned Lightb-ourne about the murder while he and Lightbourne were in the same jail cell. This Court rejected Lightbourne’s Henry claim, see id., as did the Eleventh Circuit when Lightbourne raised the same claim in a federal habeas corpus petition. See Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th Cir.1987).

In his second postconviction motion, Lightbourne attacked the reliability of Chavers and Carson, and sought to introduce affidavits and other exculpatory information concerning the two informants. See Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla.1989). These affidavits included one from Chavers in which he recanted his trial testimony. See id. Lightbourne contended that he was entitled to a new trial as a result of this newly discovered evidence and Brady violations based on the State’s failure to disclose that police engaged in a scheme with Chavers and Carson to elicit incriminating statements from Lightbourne. See id. The trial court summarily denied the motion for postconviction relief, and this Court reversed for an evidentiary hearing. See id. at 1367.

After an evidentiary hearing, the trial court denied relief and this Court affirmed the trial court’s order denying relief. See Lightbourne v. State, 644 So.2d 54 (Fla.1994). In the opinion, this Court referred to the testimony of Richard Carnegia, another prisoner who was in the same cell as Lightbourne, as the only evidence “corroborating” Lightbourne’s proffered hearsay evidence. See id. at 57 n. 4.

In 1994, Lightbourne filed his third postconviction motion based upon the affidavits of Carson and Larry Emanuel, who also were in the same jail cell as Lightb-ourne. Carson alleged in his affidavit, consistent with Chavers’ affidavit, that he testified falsely at trial under pressure from the State. Further, Emanuel, who did not testify at trial, swore in his affidavit that he had been solicited by the police to testify against Lightbourne and that “the other guys in the cell” also were promised leniency on their charges for testimony against Lightbourne. Emanuel stated that “one of those guys was Uncle Nut Chavers,” referring to Chavers. Lightbourne alleged that these affidavits established violations of Brady, Henry and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), or, in the alternative, constituted newly discovered evidence that would probably produce a different result on retrial.

The trial court held an evidentiary hearing on Lightbourne’s claims. At this hearing, Carson testified and again recanted his trial testimony. However, the trial court concluded that Carson’s recanted testimony was not believable, based in large part on testimony by police officers that there had been no deal. The trial court did not allow Emanuel to testify because it concluded that Emanuel’s testimony was procedurally barred in that it could have been presented earlier.

In this Court’s 1999 opinion, we concluded that Emanuel’s testimony was not procedurally barred. See Lightbourne, 742 So.2d at 246. We remanded the case for an evidentiary hearing to consider Emanuel’s and Carnegia’s testimony in deciding whether Carson’s recanted testimony would probably produce a different result on resentencing, and whether Emanuel’s and Carnegia’s testimony supports Lightb-ourne’s claim that Chavers’ and Carson’s testimony at the original trial was false or motivated by an undisclosed deal with the State. See id. at 249.

MOST RECENT PROCEEDINGS

Following our reversal for further proceedings, the trial court held an evidentia-ry hearing. Pursuant to the remand, the evidentiary hearing in this case was limited to the consideration of Larry Emanuel’s testimony, as well as evaluation of the cumulative effect of all the post-trial evidence presented over the past twenty years to determine whether a new penalty phase was required under Lightbourne’s Brady or newly discovered evidence claims. At the hearing, Emanuel alleged that he never heard Lightbourne confess to the murder. Lightbourne presented Emanuel’s testimony in an attempt to corroborate Chavers’ and Carson’s claim that they were solicited by the State to act as informants, and to corroborate the veracity of Carson’s and Chavers’ recantations.

After conducting an evidentiary hearing, the trial court denied Lightbourne’s post-conviction motion. The trial court stated:

Considering the testimony of Larry Emanuel and the cumulative effect of all evidence in the record, the total picture is abundantly clear that all the jailhouse informants were acting out of self interest and hope of personal gain and that none of them were acting as agents solicited by the State. It is equally clear that much of their testimony is inconsistent, contradictory, and just not worthy of much belief. It appears that they solicited each other, in an effort to bolster their own credibility and/or to gain favor among themselves, rather than being solicited by law enforcement.
Their lack of credibility was adequately attacked by defense at trial and the penalty phase. No reasonable juror would place much credence in the testimony of these informants, except such as is corroborated by independent evidence.
The Court finds that the testimony of Larry Emanuel, by itself and together with all other post-trial evidence, adds nothing of value to Mr. Lightbourne’s claim that Theodore Chavers and Theo-philius Carson were acting as agents for law enforcement in soliciting statements from Mr. Lightbourne. To the contrary, Emanuel’s testimony shows that these informants were acting on their own and that he, and probably others, would say most anything to help themselves. Emanuel’s testimony is so lacking in credibility that it is clear why the State did not call him as a witness at trial.
Considering the testimony of Larry Emanuel, by itself and together with all other post-trial evidence, the Court finds as follows:
1. That Theodore Chavers and Theo-philius Carson were not acting as agents for law enforcement in soliciting statements from Ian Lightbourne.
2. That the State’s use of jail informant testimony did not violate Ian Lightbourne’s right to counsel.
3. That there is no reasonable probability that a new penalty phase hearing would result in a different result as to the imposition of the death penalty.
4. That the presentation of this new evidence at a new penalty phase hearing would probably not produce a different result.
Therefore, the Court finds that the Defendant’s Motion to Vacate Judgment and Sentence and Special Request For Leave to Amend, filed 17 November 1994, should be and is hereby DENIED.

Lightbourne appeals the trial court’s denial of his postconviction motion, raising three issues.

ANALYSIS

As noted above, in our 1999 opinion we remanded this case for an evidentiary hearing “as to Emanuel’s testimony and for the trial court to consider the cumulative effect of the post-trial evidence in evaluating the reliability and veracity of Chavers’ and Carson’s trial testimony in determining whether a new penalty phase hearing is required, either under Lightb-ourne’s Brady or newly discovered evidence claims.” Lightbourne, 742 So.2d at 249. Furthermore, we explained that in conducting a cumulative error analysis, the trial court must “ ‘consider all newly discovered evidence which would be admissible’ at trial.” Id. at 247 (quoting Jones v. State, 709 So.2d 512, 521-22 (Fla.1998)) (emphasis supplied).

Lightbourne contends that, in light of the record as it now stands, he is entitled to relief because he has established: (1) that the State presented false evidence in violation of Giglio; (2) that the State’s use of Chavers and Carson as agents violated Henry; (3) that the State withheld material evidence pertaining to Giglio and Henry in violation of Brady; and (4) that the recantations of all the jailhouse informants constitutes newly discovered evidence.

BRADY CLAIM

In order to establish a Brady violation, a defendant must prove:

[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either -willfully or inadvertently; and [3] prejudice must have ensued.

Way v. State, 760 So.2d 903, 910 (Fla.2000) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). For Brady purposes, in order to constitute prejudice, the information must have been material. See Strickler, 527 U.S. at 282, 119 S.Ct. 1936. Furthermore:

[EJvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.

Jones v. State, 709 So.2d 512, 519 (Fla.1998) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In other words, a Brady violation is established by “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Jones, 709 So.2d at 519 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Further, the cumulative effect of the suppressed evidence must be considered when determining materiality. See Way, 760 So.2d at 913 (citing Kyles, 514 U.S. at 436 & n. 10, 115 S.Ct. 1555). “It is the net effect of the evidence that must be assessed.” Way, 760 at 913 (quoting Jones, 709 So.2d at 521); see Kyles, 514 U.S. at 436 & n. 10, 115 S.Ct. 1555.

Lightbourne’s Brady claim, and the interrelated nature of the Giglio and Henry claims, were explained in our 1999 opinion:

A Henry violation is established when police improperly use a jailhouse informant to elicit statements from a defendant in violation of his Sixth Amendment right to counsel, see 447 U.S. at 274, 100 S.Ct. 2183, and Giglio is violated when the state knowingly presents false testimony. See 405 U.S. at 154-55, 92 S.Ct. 763. Because Lightboume’s Brady claim is based on the alleged violations of Henry and Giglio, unless Carson’s recanted testimony that the police solicited and used his false testimony is credible, Lightboume’s Brady claim cannot be established.

Lightbourne, 742 So.2d at 247 (footnote omitted) (emphasis supplied).

In explaining the cumulative effect of the proposed testimony as it relates to Carson and Chavers, this Court observed in its 1999 opinion:

The cumulative effect of the evidence relates to the veracity of the trial testimony of Carson and Chavers. When considering Lightbourne’s Henry claim in our original opinion, this Court stated that without “some other evidence of prearrangement aimed at discovering incriminating information,” we were “unwilling to elevate the state’s actions in this case to an agency relationship with the informant Chavers.” Lightbourne, 438 So.2d at 386

Lightbourne, 742 So.2d at 248.

In reviewing Lightbourne’s Brady claims, this Court defers to the factual findings made by the trial court to the extent they are supported by competent, substantial evidence, but reviews de novo the application of those facts to the law. See Stephens v. State, 748 So.2d 1028, 1031-32 (Fla.1999); see also Rogers v. State, 782 So.2d 373, 376 (Fla.2001) (citing Stephens as standard of review applicable to Brady analysis). In this case, the trial court concluded that Emanuel’s testimony that he was solicited by the police to speak to Lightbourne was not believable. We conclude that the trial court’s finding regarding Emanuel’s credibility is supported by competent, substantial evidence. See Way, 760 So.2d at 914-15 (explaining that competent, substantial evidence supported trial court’s finding that witness lacked credibility, and therefore defendant failed to establish Brady violation).

At the 1999 evidentiary hearing, Emanuel testified that in January 1981 he was in the same jail cell as Lightbourne. Emanuel stated that Officers Eddie Scott and Keith Raym asked him to get information from Lightbourne regarding the murder, and Emanuel agreed to assist the agents. Emanuel testified that Scott and Raym told him that his burglary charge would be dropped if he could get a statement from Lightbourne. Emanuel told the officers that he heard Lightbourne confess. Emanuel claims that after he told the authorities about Lightbourne’s confession his charges were dropped.

In contrast to Emanuel’s testimony that Officers Scott and Raym approached him about obtaining information on Lightb-ourne, both officers testified in the 1995-1996 evidentiary hearing that neither of them were involved in the Lightbourne case, and that neither had met with Emanuel concerning the Lightbourne case. Moreover, the State on cross-examination of Emanuel at the 1999 hearing elicited that Emanuel had been convicted of six felonies as an adult.

Emanuel’s contradictory responses to several questions also supports the trial court’s assessment of his credibility. For example, although on direct examination Emanuel stated that he told the police that he heard Lightbourne confess, he stated on cross-examination that he did not remember giving a statement to the police concerning Lightbourne. Several questions later, Emanuel stated that he did not tell the officers about Lightbourne. Finally, on redirect examination, Emanuel again stated that he spoke with Scott and Raym about the Lightbourne case. Moreover, when asked on cross-examination why he waited so long to “tell the truth,” Emanuel somewhat evasively responded, “I know that Chavers is a big liar, and he would, he would tell a he to save himself or get out of jail, and wouldn’t care who he hurt in the process. And I was sitting there and never did hear him say that. But that’s all I got to say on that case.”

Emanuel’s testimony also conflicts in material ways with the testimony that Richard Carnegia gave at the 1990-91 evi-dentiary hearing. For example, Carnegia testified that in January and February of 1981, he was in the same jail ceh as Lightbourne, Chavers, and Emanuel. Carnegia explained that Lightbourne and Chavers were already in the cell when Carnegia arrived. Carnegia stated that he was solicited by Chavers, rather than the State, to lie about hearing Lightbourne confess to the murder. Carnegia explained that he refused to go along with Chavers’ request because he “didn’t want to say something that I didn’t hear. You know, it wasn’t true.” Carnegia explained that Chavers told him that it would be more believable if Chavers had more “to support his word.” Furthermore, in contrast to Emanuel’s testimony that the police solicited him, Carnegia stated that he heard Chavers ask Emanuel to assist him in providing information against Lightb-ourne, but Carnegia could not hear Emanuel’s response.

Moreover, as the trial court recognized, cumulatively the statements of Emmanuel and Carnegia “add[ ] nothing of value to ... Lightbourne’s claim that ... Chavers and ... Carson were acting as agents for law enforcement” or were untruthful at trial. Neither Carnegia nor Emanuel ever expressly stated that Chavers lied to the police, or that Chavers lied in his trial testimony. Neither Emanuel nor Carne-gia discussed Carson’s trial testimony or commented upon whether Carson’s trial testimony was truthful. Finally, neither Emanuel nor Carnegia testified that the State solicited Chavers or Carson to act as agents in soliciting information from Lightbourne.

Therefore, we conclude that the trial court’s finding that Emanuel and Carnegia lacked credibility is supported by competent, substantial evidence. Furthermore, a cumulative analysis does not support Lightbourne’s claim that Carson and Chavers were acting as state agents or were untruthful at trial. Accordingly, we reject Lightbourne’s Brady claim.

NEWLY DISCOVERED EVIDENCE

While we affirm the trial court’s rejection of the Brady claim, we must separately analyze Lightbourne’s newly discovered evidence claim. As the Court explained in its 1999 opinion:

However, even if Carson’s testimony does not establish a Brady violation, it nonetheless may qualify as newly discovered evidence that the trial court should evaluate, in fight of the other evidence adduced since trial, to determine whether it would probably produce a different result. See State v. Spaziano, 692 So.2d 174, 176 (Fla.1997); Armstrong v. State, 642 So.2d 730, 735 (Fla.1994). In Armstrong, we explained that recanted testimony can be considered newly discovered evidence, but in making that determination, the trial court must examine “all the circumstances of the case.” 642 So.2d at 735 (emphasis supplied). We cautioned, however, that recanted testimony is “exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.” Id. Only where the recanted testimony is of such nature that a different verdict would probably be rendered should a new trial be granted. See id.
In this case the trial court concluded that Carson’s recanted testimony would not probably produce a different result on retrial. In making this determination, the trial court did not consider Emanuel’s testimony, which it had concluded was procedurally barred, and did not consider Carnegia’s testimony from a prior proceeding. The trial court cannot consider each piece of evidence in a vacuum, but must look at the total picture of all the evidence when making its decision.

Lightbourne, 742 So.2d at 247.

This Court has articulated the following two requirements that must be satisfied in order to set aside a conviction or sentence on the basis of newly discovered evidence:

First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or his counsel could not have known [of it] by the use of diligence.”
Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Jones, 709 So.2d at 521 (citations omitted).

We have already determined that the newly discovered evidence claim would be foreclosed as to the guilt phase in our prior opinion in Lightbourne:

[E]ven assuming the credibility of all of the post-trial evidence and that a Brady claim has been established, and even assuming that Chavers’ and Carson’s trial testimony had been excluded under Henry or that Chavers and Carson had not even testified, we do not find that there is a “reasonable probability” of a different result in the guilt phase under Lightbourne’s Brady claim, nor, if considered as newly discovered evidence, would the evidence “probably produce an acquittal on retrial.” Even without Chavers’ and Carson’s testimony, the evidence overwhelmingly supports a conviction of guilt.

Lightbourne, 742 So.2d at 248 (citations omitted).

In the context of a claim regarding newly discovered evidence as to the penalty phase, the standard for the second prong of Jones is whether the newly discovered evidence is of such a nature that it would probably produce a life sentence. See Jones v. State, 591 So.2d 911, 915 (Fla.1991) (“[N]ewly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. The same standard would be applicable if the issue were whether a life or a death sentence should have been imposed.”); see also Mills v. State, 786 So.2d 547, 549-50 (Fla.2001) (same); Eight v. State, 784 So.2d 396, 399 (Fla.2001) (stating that trial court properly denied relief because newly discovered evidence would probably not have produced a life sentence during a new penalty phase).

In determining whether the second prong of the Jones standard has been satisfied in postconviction proceedings, we have explained the proper analytical framework for the court to employ:

To reach this conclusion the 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 the trial.”
In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility. Once this is determined, an evaluation of the weight to be accorded the evidence includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence. Where, as in this case, some of the newly discovered evidence includes the testimony of individuals who claim to be witnesses to events that occurred at the time of the crime, the trial court may consider both the length of the delay and the reason the witness failed to come forward sooner.

Jones, 709 So.2d at 521-22 (citations omitted); see also Kight, 784 So.2d at 401-03 (analyzing probable impact of newly discovered evidence on penalty phase under second prong of Jones in successive post-conviction motion).

Furthermore, with regard to claims of newly discovered evidence involving recanted testimony, this Court has explained:

In assessing recanted testimony, we have stressed caution, noting that it may be unreliable and trial judges must “examine all of the circumstances in the case.” Accordingly, “[rjeeantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial.” That is the purpose of an evidentiary hearing.

Robinson v. State, 707 So.2d 688, 691 (Fla.1998) (citations omitted).

In this case, we conclude the trial court did not err in rejecting Lightbourne’s newly discovered evidence claim. The trial court explained:

Considering the testimony of Larry Emanuel and the cumulative effect of all evidence in the record, the total picture is abundantly clear that all the jailhouse informants were acting out of self interest and hope of personal gain and that none of them were acting as agents solicited by the State. It is equally clear that much of their testimony is inconsistent, contradictory, and just not worthy of much belief.

As noted above regarding Lightbourne’s Brady claim, the trial court’s determination that Emanuel lacked credibility is supported by competent, substantial evidence. Further, in 1994, the trial court concluded that Carson was not credible. See Lightbourne, 742 So.2d at 249. In our 1999 opinion, we directed the trial court to reevaluate Carson’s, Chavers’ and Carnegia’s credibility in light of Emanuel’s testimony and the cumulative effect of all the post-trial evidence. See id. at 245. In considering the cumulative effect of Emanuel’s testimony along with all the other evidence of record, the trial court concluded that the testimony of all the jailhouse informants was “just not worthy of much belief.” This finding of the trial court is also supported by competent, substantial evidence. Thus, since the trial court has now determined that Emanuel is not credible and has now re-evaluated the prior recantations of Carson, Chavers, and Carnegia, the trial court has performed the requisite cumulative analysis that we directed be conducted.

Moreover, the second prong of Jones for a newly discovered evidence claim requires a probability of a different result. In this case, that would mean a probability of a life sentence. The trial court found:

Considering the testimony of Larry Emanuel, by itself and together with all other post-trial evidence, the Court finds ... [t]hat there is no reasonable possibility that a new penalty phase hearing would result in a different result as to the imposition of the death penalty.

We acknowledged in our last opinion that Chavers’ and Carson’s testimony “may have formed the basis of at least three of the aggravators found by the trial court — HAC, CCP and committed to avoid arrest.” Lightbourne, 742 So.2d at 249. In particular, we expressed concern that their “graphic” testimony may have played a role in establishing two of these aggrava-tors — HAC and committed to avoid arrest. Id. However, to succeed in a newly discovered evidence claim, Lightbourne has the burden of establishing the probability that a life sentence would have been imposed.

First, even though Chavers and Carson gave details of Lightbourne’s alleged confession, the trial court determined that their testimony was substantially impeached at the original trial. Also, in the appeal of Lightbourne’s first postconviction motion, this Court has also acknowledged that the credibility of these informants was sufficiently attacked at trial. See Lightbourne, 471 So.2d at 29 (“The record clearly indicated that the credibility of the jailhouse informants was specifically attacked by defense counsel on cross examination and by pretrial motion.”). Thus, given that the credibility of Carson and Chavers was sufficiently undermined during the original trial, there is not a reasonable probability that a second penalty phase again attacking the credibility of the same witnesses would produce a different result.

Second, even assuming the recantations of Chavers and Carson are credible, Lightbourne’s death sentence remains supported by three aggravators that could have been independently established — during the commission of a burglary and sexual battery, for pecuniary gain, and CCP. For example, evidence at trial revealed that the telephone wires to Nancy O’Farrell’s house had been cut, pubic hair matching Lightbourne’s and semen consistent with his blood type were found on O’Farrell’s body, and Lightbourne was found in the possession of a necklace belonging to O’Farrell. See Lightbourne, 742 So.2d at 240 nn. 1-2. Furthermore, in this case, there was relatively weak mitigation. See id. at 241. Accordingly, even assuming the reliability of Carson’s and Chavers’ recantations, in light of the substantial aggravation and the lack of mitigation in this case, we further conclude that the trial court’s finding that Lightbourne has not established a reasonable probability that a life sentence would have been imposed is supported by competent, substantial evidence. Therefore, we reject Lightbourne’s newly discovered evidence claim.

EMANUEL’S PREVIOUS REPRESENTATION BY STATE ATTORNEY BLACK

In Lightbourne’s second claim on appeal, he asserts that his due process and equal protection rights were violated because Assistant State Attorney Reginald Black, who represented the State in several of Lightbourne’s postconviction proceedings, previously had represented Emanuel in an unrelated case. Specifically, Lightb-ourne claims that during Black’s representation of Emanuel, Emanuel told Black about Emanuel’s involvement in Lightb-ourne’s case. We conclude that this claim is procedurally barred. Lightbourne raised this issue in his last postconviction motion. Although the Court acknowledged the issue in its 1999 opinion, see Lightbourne, 742 So.2d at 245, it did not address the issue. However, Lightbourne did not seek rehearing based upon this Court’s failure to address this issue. Therefore, because Lightbourne did not seek rehearing on this issue, we conclude that Lightbourne has abandoned this claim. See Garcia v. State, 816 So.2d 554, 569 (Fla.2002).

Accordingly, we affirm the trial court’s denial of postconviction relief.

It is so ordered.

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

PARIENTE, J., concurs specially with an opinion, in which SHAW, Senior Justice, concurs.

PARIENTE, J.,

concurring specially.

I concur with the majority, but write separately to highlight that in this ease the multiple postconviction proceedings primarily resulted from the jailhouse informants’ recantations of their testimony. I recognize that in some instances the State may have no alternative but to present the testimony of these informants in order to secure a conviction. However, our experience with postconviction motions in death penalty proceedings has demonstrated that these jailhouse informants (so-called “jailhouse snitches”) are often unreliable and untrustworthy. Most importantly, just as the jailhouse snitches may be willing to stretch the truth in their own self-interest at the time of trial at the behest of the State, following trial they may be just as willing to recant at the behest of the defendant.

Overall, because of the substantial risk of recantation, the State’s reliance on jailhouse informants to obtain convictions has the potential for impacting both the finality of convictions and the integrity of the judicial process. In this case, there was substantial independent evidence to support the finding of guilt and the imposition of the death sentence without the testimony of the informants.

While I certainly understand that the State is presented with difficult tactical choices at trial, I urge the State to consider the potential long-term impact effects on the finality of the conviction when deciding whether to present the testimony of jailhouse snitches. In this case, the recantations of the jailhouse informants have resulted in nearly twenty years of postcon-viction proceedings that have cast a cloud over Lightbourne’s death sentence.

SHAW, Senior Justice, concurs.

      . In his first postconviction motion, Lightb-ourne asserted that trial counsel was ineffective for failing to impeach the jailhouse informants. See Lightbourne v. State, 471 So.2d 27, 29 (Fla.1985). This Court rejected that claim. See id.

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

      . The trial court also concluded that Chavers and Carson were unavailable witnesses, a finding that we affirmed:
      Carson could not be located despite a diligent search. At the hearing, Chavers appeared to testify but demonstrated great difficulty answering questions. After a medical and psychological evaluation, he was found incompetent to testify. His testimony was deferred, and when he testified three months later, he professed to have a lack of memory and refused to answer questions. Chavers was found in contempt of court and declared unavailable as a witness.

        Lightbourne, 644 So.2d at 56.

      . Lightbourne raises the following claims in this appeal: (1) he was denied a reliable adversarial testing because the State withheld material exculpatory evidence and presented false testimony in violation of his constitutional rights. In the alternative, newly discovered evidence establishes that Lightbourne’s death sentence -is unreliable and that he is entitled to a new sentencing; (2) Lightbourne’s constitutional rights were violated by the participation of Assistant State Attorney Reginald Black as counsel for the State because Black represented Larry Emanuel and was thus a necessary and material witness to Lightb-ourne's claims regarding Emanuel; and (3) the trial court erred in denying collateral counsel’s motion to withdraw due to a conflict of interest.

      .Although there was some confusion between the State and the defense at the 1999 eviden-tiary hearing regarding Emanuel’s prior convictions, it appears that on April 13, 1981, Emanuel was given eighteen months in prison on a violation of probation charge. It also appears that a corresponding burglary charge was dropped, but the date this charge was dropped is not clear from the record.

      . Scott did state that he had met with Emanuel concerning the Sonny Boy Oats case, in which Emanuel was implicated as a code-fendant. The testimony indicates that this meeting occurred around the time that Emanuel alleges he spoke to Scott and Raym about the Lightbourne case.

      . He did not remember whether Carson was in the same cell.

      . In Lightbourne s third claim he argues that the trial court erred in denying collateral counsel Todd Scher’s motion to withdraw due to a conflict of interest. We have considered this claim and determine that Lightboume is not entitled to relief on this issue.

      . See, e.g., Sweet v. State, 810 So.2d 854, 870 (Fla.2002) (noting trial court’s order regarding credibility of informant, who had recanted and was now serving a life sentence, admitted that "snitches are not highly regarded in prison, and that the inmates consider it an admirable thing to testify on behalf of another inmate”).

      . Indeed, due to the suspect nature of jailhouse testimony and the question mark such testimony has left on the reliability of Illinois’ death convictions, the State of Illinois Governor's Commission on Capital Punishment has recommended that its police, prosecutors, capital case defense attorneys, and judges receive periodic training on the risk of false testimony by in-custody informants. See State of Illinois, Report of the Governor’s Commission of Capital Punishment, at 21, 27, 28 (2002).


author: PER CURIAM.

text:
    AMENDMENTS TO RULES REGULATING THE FLORIDA BAR: PRO BONO ACTIVITIES BY GOVERNMENT LAWYERS.
    No. SC02-1050.
    Supreme Court of Florida.
    Feb. 20, 2003.
    Natasha Permaul, Chair, Standing Committee on Pro Bono Legal Services, Orlando, FL; Kent R. Spuhler, Executive Director, The Standing Committee on Pro Bono Legal Service, Tallahassee, FL; John R. Hamilton of Foley & Lardner, Orlando, FL, on behalf of the Legal Aid Society of the Orange County Bar Assoeation, Inc.; and Kelly Rauch, President, the Florida Pro Bono Coordinators Association, St. Petersburg, FL, for Petitoner.
    The Honorable Chris W. Altenbernd, Tampa, FL, on behalf of the District Court of Appeal Judges; The Honorable Jacqueline R. Griffin, Chair, Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges, Daytona Beach, FL; Arthur I. Jacobs of the Law Offices of Jacobs & Associates, P.A., Fer-nandina Beach, FL, on behalf of the Florida Prosecuting Attorneys Association; Anthony C. Musto, Hallandale Beach, FL, on behalf of The Florida Bar Government Lawyer Section; Tod Aronvitz, President of The Florida Bar, Miami, FL, on behalf of the Board of Governors of The Florida Bar; Jordan L. Clouse, MAJ, JA, United States Army, Department of the Army, Office of the Staff Judge Advocate, North Little Rock, AK; and Howard O. McGiUin, Jr., Bar Member, Yorktown, VA, Responding.
   PER CURIAM.

We have before us the report of The Florida Bar Standing Committee on Pro Bono Legal Service (Standing Committee) recommending that this Court amend Rule Regulating the Florida Bar 4-6.1, Pro Bono Public Service, to remove the deferral of government lawyers from the aspirational pro bono legal services goal and mandatory reporting requirement. We have jurisdiction. See art. V, § 15, Fla. Const. After considering the report and the comments filed, and hearing oral argument, we decline to adopt the changes proposed by the Standing Committee.

BACKGROUND

In 1993, this Court implemented a pro bono service program for Florida attorneys. See Amendments to Rules Regulating the Florida Bar — 1-3.1(a) and Rules of Judicial Administration — 2.065 (Legal Aid), 630 So.2d 501 (Fla.1993) (hereinafter Amendments). In the opinion, the Court expressly found that its constitutional authority to implement such a program was limited, noting that “no authority exists for this Court to address, through the Rules Regulating The Florida Bar, uncompensated public service activities not directly related to services for the courts and the legal needs of the poor.” Id. at 503. Thus, the Court concluded that the proposed rules should be amended to eliminate any reference to services not related to the legal needs of the poor. Id. Further, in order to accomplish the goal of motivating attorneys to provide necessary legal services to the poor, the Court found “that the definition of legal services to the poor should be narrow, expressing simply that Florida lawyers should strive to render (1) pro bono legal services to the poor or (2) to the extent possible, other pro bono service activities that directly relate to the legal needs of the poor.” Id.

In implementing the program, the Court noted that there are specific rules or regulations that prohibit many government attorneys from the practice of law other than in the performance of their constitutional or statutory functions. Id. at 504. Based upon these prohibitions, this Court deferred from the program any government lawyers who are prohibited by statute, rule, or other regulation from participating in the provision of legal services to the poor. Id. Nevertheless, the Court noted that various government offices had developed pro bono programs through which attorneys in those offices could engage in providing pro bono services, and the Court encouraged the development of such programs. Id.

THE REPORT OF THE STANDING COMMITTEE

In Amendments, this Court adopted Rule Regulating the Florida Bar 4-6.5, Voluntary Pro Bono Plan. See 630 So.2d at 510-13. This rule directed the president-elect of The Florida Bar to appoint a standing committee on pro bono legal service to the poor. See R. Regulating Fla. Bar 4-6.5(b). The Standing Committee was charged with the following duties: (a) receiving reports from circuit committees submitted on standardized ' forms developed by the Standing Committee; (b) reviewing and evaluating circuit court pro bono plans; (c) beginning in the first year in which individual attorney pro bono reports are due, submitting an annual report as to the activities and results of the pro bono plan to the Board of Governors of The Florida Bar, The Florida Bar Foundation, and the Supreme Court of Florida; and (d) presenting to the Board of Governors of The Florida Bar and to the Supreme Court of Florida any suggested changes or modifications to the pro bono rules. See R. Regulating Fla. Bar 4-6.5(b)(2).

On May 15, 2002, the Standing Committee filed its report pursuant to rule 4-6.5(b)(2)c. on the activities and results of the voluntary pro bono plan adopted by this Court in Amendments. In its report, the Standing Committee noted that the degree of pro bono participation varies widely from circuit to circuit and some circuits have developed special pro bono programs for participation by government lawyers. The report lists examples of the pro bono projects and activities that were reported by the circuit committees, including Teen Court, the Guardian ad Litem program, the Attorneys Fighting for Seriously Ill Children project, the handling of domestic violence permanent injunctions, and the performing of client intake for pro bono programs. Further, the Standing Committee noted that numerous governmental entities, agencies, and departments have adopted pro bono policies and programs. Concluding that the numerous organized pro bono programs across the state have demonstrated that they can work with these governmental entities to provide appropriate pro bono legal service opportunities and support services so that government lawyers may fully participate in the Florida pro bono program, the Standing Committee recommends that this Court remove the deferral from the aspirational goal and the mandatory reporting requirement set forth in Rule Regulating the Florida Bar 4-6.1. Further, the Standing Committee proposes to amend the comment to the rule to provide that the primary purpose of pro bono service is overall a public one and is within government lawyers’ public service responsibilities.

The Standing Committee’s proposed changes were published in the June 15, 2002, edition of The Florida Bar News. A number of comments were received both in favor of and against the proposed changes.

The Standing Committee’s report demonstrates that government attorneys statewide are engaging in a wide variety of pro bono activities. In fact, at the Pro Bono Awards ceremony held each year at this Court, a separate Legal Aid Public Service Award is given to recognize outstanding pro bono legal services by a government lawyer or group of government lawyers. We commend these government attorneys because the performance of such service educates the public about the judicial system and assists individuals in obtaining access to that system. We further commend the pro bono organizations and the various entities, agencies, and departments of the State that have facilitated the participation of government attorneys in such activities. At oral argument the Legal Aid Society of the Orange County Bar Association pointed out numerous activities that government attorneys can engage in that improve access to justice for the poor without running afoul of any statutory prohibition.

The deferral from reporting is only for those government attorneys who are prohibited by statute, rule, or regulation from practicing law unconnected with their government service. Legitimate reasons have been advanced why certain categories of government attorneys would be unable to provide legal services to the poor independent of their official government positions.

The Standing Committee asserts that removing the deferral would emphasize to those government attorneys who thus far have been hesitant to engage in pro bono service that such conduct is permissible and encouraged by this Court. The Standing Committee further asserts that to accomplish this goal, legal services to the poor should be broadly defined as encompassing any conduct that improves access to courts.

Despite the Standing Committee’s assertion that the definition of legal services to poor should encompass broader activities to include those that improve access to justice, this Court expressly stated in Amendments that “no authority exists for this Court to address, through the Rules Regulating The Florida Bar, uncompensated public service activities not directly related to services for the courts and the legal needs of the poor.” 680 So.2d at 503. Because we do not have the authority to expand the pro bono program to cover activities that are not directly related to the legal needs of the poor, we conclude that government attorneys who are prohibited by statute, rule, or other regulation from the practice of law must continue to remain deferred from providing pro bono legal services pursuant to rule 4-6.1.

At oral argument, the Standing Committee argued that there is no need for government attorneys to be deferred under rule 4-6.1 any longer because these attorneys are actively engaging in pro bono services without violating the statutes, rules, or regulations that apply to them. However, government attorneys are deferred only if they are otherwise prohibited by statute, rule, or regulation from the practice of law outside their government employment. Thus, eliminating the deferral from engaging in activities that are directly related to legal services to the poor will not change the underlying prohibition against the practice of law to the extent it exists. Thus, even if we were to approve of the participation of these attorneys in the provision of pro bono legal services to the poor, they would still be unable to engage in such activities. Rather than place government attorneys in the awkward position of trying to reconcile a pro bono obligation with the restrictions of their employment, we conclude that the current system whereby government attorneys are encouraged to engage in a wide variety of pro bono activities that increase knowledge about the legal system and access to courts, but are deferred from the requirements of rule 4-6.1, is preferable. Therefore, we decline to adopt the Standing Committee’s proposed amendments to rule 4-6.1. In declining to adopt these amendments, we are in no way dissuading government attorneys from engaging in pro bono activities that increase access to courts. We find that the services are invaluable to educating the public about the law and the judicial system, and we applaud all government attorneys who engage in such worthwhile activities.

We express our gratitude to the members of the Standing Committee for the dedicated efforts that they have expended in collecting information about pro bono services across the State. Cur thanks also goes to the individuals who filed comments, and especially those who participated in oral argument.

It is so ordered.

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

      . See, e.g., § 27.015, Fla. Stat. (2002) ("All state attorneys elected to said office shall be so elected on a full-time basis and shall be prohibited from the private practice of law while holding said office.”); § 27.51(3), Fla. Stat. (2002) ("Each public defender shall serve on a full-time basis and is prohibited from engaging in the private practice of law while holding office.”).

      . Comments were filed by The Florida Bar Government Lawyer Section; the Legal Aid Society of the Orange County Bar Association, Inc.; The Florida Pro Bono Coordinators Association; attorney Arthur I. Jacobs, on behalf of the Florida Prosecuting Attorneys Association; attorney Jordan L. Clouse; and attorney Howard O. McGillin, Jr.


author: QUINCE, J.

text:
    LEVEL 3 COMMUNICATIONS, LLC, Appellant, v. E. Leon JACOBS, Jr., et al., Appellees.
    No. SC01-2050.
    Supreme Court of Florida.
    March 6, 2003.

      Kenneth A. Hoffman and Martin P. McDonnell of Rutledge, Eeenia, Purnell & Hoffman, P.A., Tallahassee, FL; and Michael R. Romano and Greg L. Rogers of Level 3 Communications, LLC, Broom-field, CO, for Appellant.
    Harold McLean, General Counsel and Martha Carter Brown, Associate General Counsel of the Florida Public Service Commission, Tallahassee, FL, for Appel-lee.
   QUINCE, J.

We have on appeal a decision of the Florida Public Service Commission concerning regulatory assessment fees on the gross operating revenues of Level 3 Communications, LLC. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. We affirm the decision of the Public Service Commission for the reasons expressed below.

BACKGROUND

On May 1, 2001, Level 3 Communications, LLC (Level 3), pursuant to section 120.565, Florida Statutes (2001), and rule 28-105.002, Florida Administrative Code, filed a petition for declaratory statement requesting a determination from the Florida Public Service Commission (PSC) concerning items to be included in gross operating revenues from intrastate commerce. Level 3 maintained that its collocation revenues should not be included as “gross operating revenues derived from intrastate business” as contemplated by rule 25-4.0161, Florida Administrative Code, and sections 350.113(3)(b) and 364.336, Florida Statutes (2001), for purposes of calculating the regulatory assessment fee for calendar year 1999. Level 3 filed its petition for a declaratory statement after the PSC audited Level 3’s 1999 regulatory assessment filing fee and concluded that the company should include revenues from collocation in 1999 in the amount of $381,342, as part of its gross operating revenues derived from intrastate business to calculate the regulatory assessment fee due. Level 3 asked the PSC to declare that the revenue an ALEC generates from collocation should be excluded from the fee calculation.

In its petition, Level 3 argued that collocation revenues were lease payments made by new ALECs for occupying space in Level 3’s “gateway” facilities, so collocation should be considered as a “simple real property transaction.” Level 3 further argued that because collocation does not involve the provision of telecommunication services, it should not be included as part of the company’s gross operating revenues. In support of its position, Level 3 cited to the declaratory statement issued by the PSC in order no. PSC-01-0097-DS-TL (Verizon order). There, the PSC determined that Verizon was required to pay regulatory assessment fees on directory publishing revenues. Level 3 contended that the Verizon order “makes it clear that Sections 350.1113(3)(b) and 364.336, Florida Statues, were never intended to impose a regulatory assessment fee on the revenues of a regulated telecommunications company that are not derived from a required component of that telecommunications company’s communications service.” According to Level 3, the PSC’s position would subject optional, nontelecommunica-tions services and revenues such as collocation or the sale of customer premises equipment to the regulatory assessment fee. Level 3 argued that because collocation is neither a telecommunications service nor a service required in conjunction with the provision of a telecommunications service, its collocation revenues should be excluded from its gross operating revenues for regulatory fee calculations.

The PSC disagreed, finding that Level 3 was required to include revenues derived from collocation in its regulatory assessment fee calculation. The PSC found that Level 3’s collocation revenues were gross operating revenues derived from intrastate commerce, and the regulatory fee statutes did not contemplate the exclusion of those revenues from the fee calculation. The PSC reasoned that the statutes only permitted two specific exclusions from gross operating revenues for regulatory assessment fee purposes: (1) interstate revenues, and (2) a deduction for amounts paid to other telecommunications companies for the use of the facilities. The PSC noted that the regulatory statutes “do not tie the fees to services of any particular kind at all, but to a regulated company’s ‘intrastate business,’ a term that is clearly more inclusive than what Level 3 proposes.” Since Level 3’s collocation revenues did not fall under the specific exclusions, the PSC found that the revenues should be included

ANALYSIS

An agency’s interpretation of the statute that it is charged with enforcing is entitled to great deference. See BellSouth Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla.1998). This Court will not depart from the contemporaneous construction of a statute by a state agency charged with its enforcement unless the construction is “clearly unauthorized or erroneous.” See P.W. Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988). The party seeking to challenge the PSC’s order has the burden of overcoming these presumptions “by showing departure from the essential requirements of law.” Florida Interexchange Carriers Ass’n. v. Clark, 678 So.2d 1267, 1270 (Fla.1996). However, this Court will not give deference to an agency’s determination when the agency exceeds its authority. See Tampa Elec. Co. v. Garcia, 767 So.2d 428, 433 (Fla.2000). Thus, unless this Court finds that the PSC acted outside the scope of its powers and jurisdiction by imposing regulatory assessment fees on Level 3’s collocation revenues or its decision was “clearly unauthorized or erroneous,” the PSC’s decision will be afforded deference.

At issue is whether the PSC has the authority to collect regulatory assessment fees on the collocation revenues of Level 3. The PSC has exclusive jurisdiction to regulate telecommunications of Florida. See § 364.01, Fla. Stat. (2001); Florida Interexchange Carriers Ass’n v. Beard, 624 So.2d 248, 251 (Fla.1993). Sections 350.113 and 364.336, Florida Statutes (2001), establish the formula by which the PSC calculates its costs and collects fees needed to cover those costs from telecommunications companies. Section 350.113 creates the Florida Public Service Regulatory Trust Fund and provides the formula for the calculation of the PSC’s regulatory costs and the maximum fee rate that the PSC can assess. The statute provides in relevant part:

(1) There is hereby created in the State Treasury a special fund to be designated as the “Florida Public Service Regulatory Trust Fund” which shall be used in the operation of the commission in the performance of the various functions and duties required of it by law.
(3) Each regulated company under the jurisdiction of the commission, which company was in operation for the preceding 6-month period, shall pay to the commission within 30 days following the end of each 6-month period, commencing June 30, 1977, a fee based upon the gross operating revenues for such period subject to the limitations of this subsection. The fees shall, to the extent practicable, be related to the cost of regulating such type of regulated company and shall in no event be greater than:
(b) For each telephone company licensed or operating under chapter 364, one-eighth of 1 percent of its gross operating revenues derived from intrastate business.
Differences, if any, between the amount paid in any 6-month period and the amount actually determined by the commission to be due shall, upon notification by the commission, be immediately paid or refunded. Each regulated company which is subject to the jurisdiction of the commission, but which did not operate under the commission’s jurisdiction during the entire preceding 6-month period, shall, within 30 days after the close of the first 6-month period during which it commenced operations under, or became subject to, the jurisdiction of the commission, pay to the commission the prescribed fee based upon its gross operating revenues derived from intrastate business during those months or parts of months in which the regulated company did operate during such 6-month period. In no event shall payments under this section be less than $25 annually.

§ 350.113(1), (3), Fla. Stat. (2001).

Section 364.336 provides the fee rate for telecommunications companies. This section provides:

Notwithstanding any provisions of law to the contrary, each telecommunications company licensed or operating under this chapter, for any part of the preceding 6-month period, shall pay to the commission, within 30 days following the end of each 6-month period, a fee that may not exceed 0.25 percent annually of its gross operating revenues derived from intrastate business, except, for purposes of this section and the fee specified in s. 350.113(3), any amount paid to another telecommunications company for the use of any telecommunications network shall be deducted from the gross operating revenue for purposes of computing the fee due.

§ 364.336, Fla. Stat. (2001).

Level 3 advances several arguments in support of its assertion that its collocation activities are not intrastate business. First, Level 3 argues that its collocation product is predominantly interstate, as opposed to intrastate. It asserts that its collocation product is akin to a real property transaction. Level 3 claims that most of the equipment placed in its gateway facilities are used for the provision of internet-related service; however, Level 3 concedes that it does not know if all the space that it is leasing is used for internet purposes. In its petition for declaratory statement, Level 3 notes, “It would be extremely difficult to determine whether the collocation space that is leased is ultimately being used to provide regulated or unregulated services.” Because Level 3 believes that most of the revenues generated by its collocation agreements result from providing support for internet services, the company argues that its revenues are “inherently interstate in nature.”

However, Level 3’s argument ignores the fact that sections 350.113(3)(b) and 364.336 impose regulatory assessment fees on the gross operating revenue of its intrastate business, not the intrastate or interstate business of its customers. Recently, this Court struck down an order of the PSC which assessed regulatory fees on the revenues of a telecommunication company’s affiliate. See Verizon Florida, Inc. v. Jacobs, 810 So.2d 906 (Fla.2002). We found that the PSC did not have authority under section 364.336 to impute the affiliate company’s revenues to Verizon. Id. at 909. This Court reasoned:

The pertinent language of section 364.336 is plain when it states that telecommunications companies, operating under chapter 364, are only required to pay regulatory assessment fees based on a percentage of their own gross operating revenues derived from intrastate business. In its order, the Commission imputes Directories’ revenues to Verizon for purposes of regulatory assessment fee calculation. Yet, nothing in the plain language of section 364.336 serves as a basis for allowing the Commission to impute revenues to Verizon in the regulatory assessment fee calculus.

Id. at 908-09. Thus, even if Level 3’s facilities are used by other companies for internet services, the PSC has the authority to assess Level 3’s revenues from the rental of collocation space, because the rental involves an intrastate transaction. In the order, the PSC states:

But for the access to communications networks and facilities, providers would not collocate in Level 3’s Gateways facilities, and Level 3 would not receive revenue from the lease of those facilities. Section 364.02(13), Florida Statutes, provides that a telecommunications facility “includes real estate, easements, apparatus, property, and routes used and operated to provide two-way telecommunications service to the public for hire within this state.”
Collocation revenue is rent revenue from the lease of telecommunications facilities, like revenue from the lease of space on telephone poles and in telecommunications vaults and conduits. Rent revenue has traditionally been included in telephone company assessment fee calculations, and the statutes do not provide for any different treatment here.

This Court is not at liberty to disregard the PSC’s findings if they are supported by competent, substantial evidence. See DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957).

Second, Level 3 argues that collocation is not subject to regulation by the PSC because it does not involve the provision of basic local telecommunications service. Essentially, Level 3 has interpreted the assessment fee statutes as imposing an assessment on a telecommunications company based upon the type of intrastate business the company is providing. Section 350.113(3)(b) reads: “For each telephone company licensed or operating under chapter 364, one-eighth of 1 percent of its gross operating revenues derived from intrastate business.” Section 364.336, Florida Statutes, states in pertinent part: “Notwithstanding any provisions of the law to the contrary, each telecommunications company licensed or operating under this chapter ... shall pay to the commission ... a fee that may not exceed 0.25 percent annually of its gross operating revenues derived from intrastate business.” (Emphasis added.) Nothing in the plain language of section 364.336 exempts a telecommunications company from paying regulatory assessment fees on collocation revenues derived from intrastate business. The statute on its face does not limit the assessment based upon the type of service that telecommunications business is providing.

Alternatively, Level 3 contends that its collocation revenues are not subject to assessment fees due to Level 3’s status as an ALEC. Level 3 argues that because the collocation agreements of ALECs are not required and unregulated by the PSC, the revenues from their collocation agreements are not subject to assessment fees. Level 3 opines that because regulatory fees are required to be directly related to actual costs of the regulatory process, the PSC cannot justify its assessment against Level 3’s collocation revenues.

Level 3 cites section 364.337 for support of its argument. This statute, which pertains to ALECs, provides in pertinent part:

(2) Rules adopted by the commission governing the provision of alternative local exchange telecommunications service shall be consistent with s. 364.01....
(5) The commission shall have continuing regulatory oversight over the provision of basic local exchange telecommunications service provided by a certificated alternative local exchange telecommunications company or a certificated alternative access vendor for purposes of establishing reasonable service quality criteria, assuring resolution of service complaints, and ensuring the fair treatment of all telecommunications providers in the telecommunications marketplace.

§ 364.337, Fla. Stat. (2001). Level 3 argues that subsection (5) details the entire scope of the PSC’s authority over ALECs, and because subsection (5) does not mention collocation, the PSC has no right to assess fees on an unregulated service that is not required. Level 3 further argues that ALECs are free to engage in any lawful unregulated intrastate or interstate business free from regulatory oversight.

A similar type of argument was advanced in General Telephone Co. of Florida v. Marks, 500 So.2d 142 (Fla.1986). In Marks the petitioner argued that the PSC was prohibited from including certain expenses in calculating the company’s profits because the statute did not specially authorize the PSC to include the expenses in calculating the gross profit. This Court disagreed:

The legislature cannot be expected to foresee and make provision for every possible type of expense that might be associated with the gross profit of a particular type of operation. Some discretion must be given to regulatory bodies to promulgate the detailed rules that expand upon and implement legislative directives. In this case the legislature provided that the commission shall calculate gross profits. Unless there is something else directly contrary in the statute itself, we must assume the legislature intended to grant to the commission the discretion to determine what factors should be used in calculating gross profits....

Id. at 145. Since nothing in the statute expressly prohibited the inclusion of white page expenses in the calculating of gross profits, the Court affirmed the PSC’s order. We agree with this reasoning. In the instant case, nothing in sections 350.113 or 364.336 prohibits the PSC from including Level 3’s collocation revenue for purposes of calculating gross profits.

Section 350.113(3) gives the PSC the authority to assess a fee “upon the gross operating revenues .... The fees shall, to the extent practicable, be related to the cost of regulating such type of regulated company....” The language in the statute does not appear to tie the assessment of regulatory fees to a specific service. Level 3’s argument that the PSC has limited authority over ALECs ignores the numerous statutes which give the PSC authority over a variety of activities of all local telecommunications providers. For example, section 364.01(4) gives the PSC broad regulatory powers over the telecommunications industry. See § 364.01(4), Fla. Stat. (2001). Section 364.12 gives the PSC authority over the interconnection duties of both ILECs and ALECs. See § 364.12(2)-(5), Fla. Stat. (2001). The breadth of the PSC’s authority supports the argument that the assessment fee is assessed to cover the entire spectrum of its regulatory activities.

Finally, Level 3 argues that the PSC’s decision violates equal protection because it forces Level 3 to pay regulatory assessment fees on revenues generated in the same manner as those of its competitors that do not have to pay an assessment fee. The constitutional right to equal protection mandates that similarly situated persons be treated alike. See Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000). Equal protection is not violated simply because persons are treated differently. When considering a statute that abridges a fundamental right, courts are required to apply the strict scrutiny standard to determine whether the statute denies equal protection. See Lite v. State, 617 So.2d 1058, 1061 n. 2 (Fla.1993). However, where a fundamental right is not at stake, the courts apply the rational basis test. “Under the rational basis standard, the party challenging the statute bears the burden of showing that the statutory classification does not bear a rational relationship to a legitimate state purpose.” Id.

Level 3 argues that the extension of the PSC’s authority to cover the company’s nonregulated revenues unduly discriminates against collocation companies that are ALECs. However, Level 3 is not similarly situated to companies that solely engage in the rental of collocation facilities. Under section 364.02(12)(a)-(f), a company that only provides facilities to other telecommunications providers is not considered a telecommunications company. Since Level 3 is not in the same class as those companies, because it provides facilities and telecommunications services, it has failed to show that it has been denied equal protection.

Accordingly, we affirm the PSC’s order determining that Level 3’s collocation revenues are subject to regulatory assessment fees.

It is so ordered.

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

LEWIS, J., concurs in result only.

      .Level 3 is a certified alternative local exchange and interexchange telecommunications service provider in Florida. An alternative local exchange telecommunications company (ALEC) is defined as any company certified by the Public Service Commission to provide local exchange telecommunications in Florida on or after July 1, 1995. See § 364.02(1), Fla. Stat. (2001). The federal Telecommunications Act of 1996 required incumbent local exchange carriers (ILECs) to allow ALECs to interconnect their networks with the networks of the new ALECs who sought entry into a particular market. See 47 U.S.C. § 251(c)(2)(2000). ILEC is defined by Florida law as a company certified by the PSC to provide local exchange service on or before June 30, 1995, see section 364.02(6), Florida Statutes (2001), and by federal law as a local exchange carrier that provided telephone exchange service in a particular area on February 8, 1996. See 47 U.S.C. § 251(h).

      . As part of an ILEC’s interconnection duties, the companies are required to allow ALECs to physically collocate their equipment on the ILEC’s premises. The federal statute describes the collocation duty as follows: "The duty to provide, on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, for physical collocation of equipment necessary for interconnection or access to unbundled network elements at the premises of the local exchange carrier, except that the carrier may provide for virtual collocation if the local exchange carrier demonstrates to the State commission that physical collocation is not practical for technical reasons or because of space limitations.” 47 U.S.C. § 251(c)(6).

      . Level 3’s gateway facilities provide locations where customers can physically collocate their equipment in order to connect directly to Level 3’s and other service providers’ networks.

      . The term "intrastate business” is not defined in chapter 364, Florida Statutes (2001). Under Florida’s rules of statutory construction, the term "intrastate business” must be given its plain and ordinary meaning. See Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000). The Court has noted: "When necessary, the plain and ordinary meaning 'can be ascertained by reference to a dictionary.' Further, it is a well-settled rule of statutory construction that in the absence of a statutory definition, courts can resort to definitions of the same term found in case law.” Id. (citation omitted). Section 207.002, which deals with taxation on the operation of motor vehicles, defines intrastate as follows: " ‘Intrastate’ means vehicle movement from one point within a state to another point within the same state.” § 207.002(14), Fla. Stat. (2001). Black’s Law Dictionary does not define intrastate business, but gives the following definition for intrastate commerce: "Commerce that begins and ends entirely within the borders of a single state.” Blades Law Dictionary 262 (7th ed.1999). Webster's defines intrastate as "existing or occurring within a state.” Merriam-Webster’s Dictionary 614 (10th ed.1998). Thus, it appears that intrastate business is defined as business occurring within the state of Florida.