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    Robert CARRATELLI, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-97.
    Supreme Court of Florida.
    July 5, 2007.

      Marcia J. Silvers of Dunlap and Silvers, P.A., Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and David M. Schultz, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   CANTERO, J.

In this case, we explain the standard that courts should apply in deciding whether a trial counsel’s failure to preserve a challenge to a potential juror constitutes ineffective assistance of counsel. In doing so, we resolve a conflict concerning the application of the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the case we review, the Fourth District Court of Appeal held that a defendant establishes prejudice under Strickland by proving that a biased juror served on the jury. See Carratelli v. State, 915 So.2d 1256 (Fla. 4th DCA 2005) (en banc) (Carratelli II). The court certified conflict with Austing v. State, 804 So.2d 603 (Fla. 5th DCA 2002). That case held that the defendant must show only that a reasonable doubt existed about the juror’s impartiality, which is the same standard used on direct appeal. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; see also Carratelli v. State, 935 So.2d 499 (Fla.2006) (granting review). We agree with the Fourth District. Below we (I) summarize the facts and holdings of the cases in conflict; (II) discuss the different standards applicable on appeal and in the postconviction context; (III) analyze whether the trial or the appeal should be the focus of the prejudice analysis; and (IV) define and apply the test for demonstrating whether counsel’s failure to preserve a juror challenge resulted in prejudice to the defendant.

I. THE CASES IN CONFLICT

The petitioner, Robert Carratelli, was charged with six counts of vehicular homicide stemming from an automobile collision. Media coverage of the case rendered impaneling a jury difficult. During jury selection, defense counsel moved to strike several jurors for cause, alleging that they could not be impartial. When his chai-lenges were denied, Carratelli struck three of the potential jurors (Johnson, Lott, and Nesbitt) with peremptory challenges. When the trial court denied his cause challenge to juror Inman, however, Carratelli used his remaining peremptory strike on another person; thus, Inman remained on the jury. The jury subsequently convicted Carratelli on all counts.

On appeal, Carratelli alleged that the trial court erred in denying his challenges for cause. Carratelli v. State, 832 So.2d 850, 852 (Fla. 4th DCA 2003) (Carratelli I). Citing relevant excerpts from the voir dire transcript, the Fourth District agreed that the trial court abused its discretion in denying challenges to the three jurors whom the defendant struck with peremptory challenges:

Here, the record demonstrates reasonable doubts concerning Nesbitt’s, Johnson’s, and Lott’s abilities to be fair and impartial. Those doubts were not dispelled during subsequent questioning. Each of these jurors expressed significant reservations about their suitability to sit as jurors in this case. While a prospective juror’s own perception of his or her unfitness to sit as a fair and impartial juror in a particular case does not end the inquiry, such an assessment cannot easily be disregarded. Because Nesbitt’s, Johnson’s, and Lott’s responses created a reasonable doubt as to their ability to sit as fair and impartial jurors, the trial court abused its discretion in denying appellant’s challenges for cause to this trio.

Id. at 854-55. Despite finding error as to these three, however, the district court denied Carratelli a new trial because his defense counsel failed to preserve the claim. Id. at 856. The district court found that counsel’s statement to the trial court after the State accepted the jury “was neither a motion nor a request for additional peremptory challenges,” and that even if the statement was deemed to be such, counsel failed to obtain a ruling on it. Id. Accordingly, the court found the errors had not been preserved. Although Carratelli also appealed the denial of his cause challenge to juror Inman, the Fourth District did not address the claim, and thus affirmed the denial of the cause challenge as to Inman as well.

Carratelli then filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He alleged that trial counsel was ineffective for failing to preserve the denial of the cause challenges. Carratelli II, 915 So.2d at 1258. Carratelli alleged that he was prejudiced because his convictions would have been reversed on appeal and because one juror — Inman—“who was biased against [him] and who should have been excused for cause, actually served on the jury.” The circuit court denied the motion, and Carratelli appealed.

The Fourth District equated the failure to preserve a challenge for cause with the failure to raise one. Both, the court said, “result in an issue not properly presented to the trial court for a ruling.” Id. Focusing on the prejudice prong of Strickland, the district court said:

Where a lawyer’s incompetence involves the failure to exercise or preserve a cause challenge, the proper inquiry for deciding whether prejudice under Strickland has occurred is not to ask whether the trial court would have sustained the challenge had it been made at trial, or whether the appellate court would have reversed the conviction had the objection been preserved. The Strickland requirement of actual prejudice imposes a stringent test for granting postconviction relief based on the failure to preserve a cause objection to a juror.
The test is whether the failure to preserve a challenge to a juror by sufficiently bringing the objection to the trial judge’s attention “resulted in a biased juror serving on the jury.”

Id. at 1260 (quoting Jenkins v. State, 824 So.2d 977, 982 (Fla. 4th DCA 2002)). The court then applied this standard to Carra-telli’s case. Noting that three of the four challenged jurors did not serve on the jury, the district court examined the voir dire statements of the remaining juror and held that “juror Inman’s slight familiarity with the case did not rise to that level of actual bias necessary for postconviction relief.” Id. at 1261. The court certified conflict with Austing. Id. at 1263.

In Austing, it was the State that challenged defense counsel’s peremptory strike. The trial court ruled that defense counsel’s response to the State’s challenge was not race-neutral. Austing, 804 So.2d at 604. Defense counsel failed to preserve the error by renewing the objection before the jury was sworn. Id. n. 1. Aust-ing later filed a postconviction motion alleging that his counsel was ineffective. The circuit court denied it, holding that Austing had not established prejudice by showing that with a different juror the outcome of the trial would have been different. The Fifth District reversed. The court addressed the prejudice prong of Strickland, stating that “there can never be a showing as to what would have occurred with a different jury,” id., and concluded:

The trial court’s erroneous denial of Austing’s peremptory challenge was per se reversible error, and, if properly preserved, would have resulted in a reversal by this court on direct appeal. Therefore, it is apodictic that the result would have been different-ie., reversal on appeal-had trial counsel been effective; therefore, the two-pronged Strickland test has been met.

Id. at 605 (citations omitted).

Therefore, Carratelli and Austing conflict on which standard to apply for determining prejudice when a defendant claims that defense counsel was constitutionally ineffective for failing to preserve a juror challenge. The Fourth District held that the defendant must demonstrate that someone actually biased against him served as a juror. The Fifth District, on the other hand, looked to the outcome of the appeal — not the trial — to determine prejudice. In that district, a defendant establishes prejudice if the error that counsel failed to preserve would have resulted in reversal on appeal — that is, if the defendant could establish a reasonable doubt concerning the potential juror’s impartiality.

II. REVIEWING JUROR CHALLENGES ON APPEAL AND POSTCONVICTION

“[T]he test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance.” Sanders v. State, 847 So.2d 504, 506 (Fla. 1st DCA 2003) (en banc) (quoting Hill v. State, 788 So.2d 315, 318 (Fla. 1st DCA 2001)), approved, 946 So.2d 953 (Fla.2006). On direct appeal, to obtain a new trial a defendant alleging the erroneous denial of a cause challenge must show only that preserved error occurred. See Goodwin v. State, 751 So.2d 537, 544 (Fla.1999). To obtain postconviction relief, however, the standard is much more strict.

A. Demonstrating Reversible Error on Appeal

The decision whether to excuse a juror for cause is a mixed question of fact and law that falls within the trial court’s discretion. Busby v. State, 894 So.2d 88, 95 (Fla.2004), cert. denied, 545 U.S. 1150, 125 S.Ct. 2976, 162 L.Ed.2d 906 (2005); Singer v. State, 109 So.2d 7, 22 (Fla.1959). “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984) (citing Singer, 109 So.2d at 24). When a party seeks to strike a potential juror for cause, the trial court must allow the strike when “there is basis for any reasonable doubt” that the juror had “that state of mind which w[ould] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.” Singer, 109 So.2d at 23-24; see also Ault v. State, 866 So.2d 674, 683 (Fla.2003) (same). Courts have held that ambiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror. See Cottrell v. State, 930 So.2d 827, 829 (Fla. 4th DCA 2006) (quoting Huber v. State, 669 So.2d 1079, 1081 (Fla. 4th DCA 1996) (“This court has held that it is error not to grant a challenge for cause when there is a basis for any reasonable doubt as to the juror’s ability to render an impartial verdict, and that close cases should be resolved in favor of excusing the juror rather than leaving doubt.”)); Smith v. State, 907 So.2d 582, 585 (Fla. 5th DCA 2005) (same).

Under our cases, the preservation of a challenge to a potential juror requires more than one objection. When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn. See Zack v. State, 911 So.2d 1190, 1204 (Fla.2005). “By not renewing the objection prior to the jury being sworn, it is presumed that the objecting party abandoned any prior objection he or she may have had and was satisfied with the selected jury.” Id.

The rule is not a mere technicality designed to place onerous burdens on overstressed trial counsel. In Joiner v. State, 618 So.2d 174 (Fla.1993), we explained its purpose:

We agree with the district court that counsel’s action in accepting the jury led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection. It is reasonable to conclude that events occurring subsequent to his objection caused him to be satisfied with the jury about to be sworn. We therefore approve the district court to the extent that the court held that Joiner waived his Neil objection when he accepted the jury. Had Joiner renewed his objection or accepted the jury subject to his earlier Neil objection, we would rule otherwise. Such action would have apprised the trial judge that Joiner still believed reversible error had occurred. At that point the trial judge could have exercised discretion to either recall the challenged juror for service on the panel, strike the entire panel and begin anew, or stand by the earlier ruling.

Id. at 176; see also Zack v. State, 911 So.2d at 1204 (reaffirming Joiner and holding that a Neil issue “is not preserved for appellate review if the party objecting to the challenge fails to renew the objection before the jury is sworn”). In other words, renewing an objection before the jury is sworn gives the trial court one last chance to correct a potential error and avoid a possible reversal on appeal. It also allows counsel to reconsider the prior objection once a jury panel has been selected. Without such a requirement, the defendant “could proceed to trial before a jury he unqualifiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial.” Joiner; 618 So.2d at 176 n. 2; see also Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (noting that these requirements exist so that “[t]he defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial”).

If the issue has been preserved, courts review the trial court’s discretionary decision for manifest error. The appellate court examines the record, keeping in mind that the trial court “has a unique vantage point in the determination of juror bias” that is unavailable to us in the record. Smith v. State, 699 So.2d 629, 635-36 (Fla.1997). When a defendant preserves a cause challenge, he must demonstrate on appeal both that the trial court erred in determining the juror’s competency and that the denial of the challenge caused prejudice. See Conde v. State, 860 So.2d 930, 941 (Fla.2003). Where the record demonstrates a reasonable doubt about a juror’s ability to be impartial, the trial court abused its discretion in denying the cause challenge. See Busby, 894 So.2d at 95; see also Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004) (“While the decision to accept or dismiss a putative juror is considered an exercise in discretion, we view the seating of a juror as to whom there is a reasonable doubt concerning impartiality an abuse of discretion and thus ‘manifest error.’ ”).

Having demonstrated error, the defendant must then show that the error requires reversal. The “expenditure of a peremptory challenge to cure the trial court’s improper denial of a cause challenge constitutes reversible error if a defendant exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury.” Busby, 894 So.2d at 96-97. The juror who served need not have been “legally objectionable” — that is, excusable for cause. Id. A defendant need only show “the same type of harm [peremptory] challenges are intended to cure — the seating of a juror whom the defendant suspects, but cannot prove, is biased.” Id. at 100-01.

Even where the reviewing court concludes that a juror who actually served on the jury should have been stricken, however, the court will not reverse for a new trial if the error has not been preserved. See Singer, 109 So.2d at 19 (finding reasonable doubt as to one juror’s impartiality, but refusing relief on this claim because it was not preserved for review).

B. Demonstrating Prejudice in the Postconviction Context

As demonstrated above, the standard for obtaining a reversal upon the erroneous denial of a cause challenge is relatively lenient: a defendant need only show that an objectionable juror — whether or not actually biased — sat on the jury. Our consideration of postconviction claims, however, is more restrictive. As we recently reiterated:

We have emphasized that “once a conviction has been affirmed on direct appeal ‘a presumption of finality and legality attaches to the conviction and sentence.’ ” ... “[T]he test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance.”

Sanders, 946 So.2d at 959 (citations omitted) (quoting Goodwin v. State, 751 So.2d 537, 546 (Fla.1999), and Sanders, 847 So.2d at 506). A defendant’s claim that his counsel offered ineffective assistance at trial, for whatever reason, must be analyzed under the standard the Supreme Court enunciated in Strickland. The purpose of the right to the effective assistance of counsel is to “ensure a fair trial,” Strickland, 466 U.S. at 686, 104 S.Ct. 2052, defined as “one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Id. at 685, 104 S.Ct. 2052. The Supreme Court established the following standard for determining when counsel has provided ineffective assistance warranting postconviction relief:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052.

Specifically, the Court stressed that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Therefore, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Witt v. State, 387 So.2d 922, 925 (Fla.1980) (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)).

III. WHICH IS THE RELEVANT PROCEEDING: THE TRIAL OR THE APPEAL?

Both the district court below and the court in Austing agree that the Strickland prejudice standard applies. The courts disagree, however, on which forum should be the focus of the analysis. The standard requires the postconviction court to consider whether there is a reasonable probability that the result of the proceeding would have been different. In these circumstances, the question becomes, which is the “proceeding” whose potential result should be scrutinized — the trial (as Carratelli II holds) or the appeal <as Austing holds)? Carratelli argues for the latter test based on his contention that (A) counsel renewing (or failing to renew) an objection before the jury is sworn acts as appellate counsel, and (B) the prejudice for such a failure occurs on appeal. We address these contentions below.

A. The Role of Trial Counsel in Preserving Objections

Carratelli’s claim that, in preserving an objection, counsel acts as appellate counsel, and therefore the prejudice analysis should focus on the appeal, is based on the Eleventh Circuit’s decision in Davis v. Secretary for the Department of Corrections, 341 F.3d 1310 (11th Cir.2003). There, a Florida defendant filed a petition for habe-as corpus in federal court alleging that trial counsel was ineffective for failing to renew (and thus preserve) an objection to the State’s peremptory challenge. Davis, 341 F.3d at 1312-13; see Davis v. State, 710 So.2d 723, 724 (Fla. 3d DCA 1998) (finding that the objection was not preserved); Davis v. State, 763 So.2d 332 (Fla. 3d DCA 2000) (affirming the summary denial of Davis’s postconviction motion alleging ineffective assistance of counsel for failing to preserve the claim). The Eleventh Circuit acknowledged that under Joiner, to preserve an objection counsel had to renew it at the conclusion of voir dire or accept the jury with a reservation. The federal court decided, however, that in such an “unusual” circumstance counsel acts as trial counsel when first raising the issue, but as appellate counsel when renewing it. See Davis, 341 F.3d at 1315-16; see also Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir.) (“This Court held that because the failure of counsel was solely in his role as appellate counsel at trial (those are not the words we used in Davis, but it is what we meant), the prejudice inquiry-should focus on the effect that counsel’s omission at trial had on the appeal.”), cert. denied, — U.S. -, 127 S.Ct. 587, 166 L.Ed.2d 436 (2006). The court concluded that the failure to preserve the issue by renewing the objection was error related to the appeal and “by its nature, unrelated to the outcome of [the] trial.” 341 F.3d at 1315. We believe that Davis misreads our opinion in Joiner.

As we explained in Joiner, jury selection is by nature a dynamic process. The requirement of renewing objections before the jury is impaneled allows both the attorney and the court, knowing the final composition of the jury, to reconsider their positions. From the attorney’s point of view, many factors may militate in favor of abandoning a previous objection. Joiner, 618 So.2d at 176. From the court’s point of view, the trial court may “exercise[] discretion to either recall the challenged juror for service on the panel, strike.the entire panel and begin anew, or stand by the earlier ruling.” Id. Thus, the renewal requirement provides the party with the opportunity at trial to timely raise a claim previously denied (or decide not to), and provides the trial court the opportunity to readdress the claim and possibly correct an error. Id. These considerations are quintessential^ issues about the trial, not the appeal. As the Fourth District noted: “The requirement of preservation is central to the trial process.” Carratelli II, 915 So.2d at 1262. Therefore, contrary to Carratelli’s argument, the requirements we imposed in Joiner address the trial itself. We reject the proposition that trial counsel renewing an objection (or failing to do so) before a jury is impaneled is acting as appellate counsel.

B. The Prejudice Occurs at Trial

Carratelli also argues that the prejudice a defendant suffers when trial counsel fails to renew an objection to the jury occurs on appeal, not at trial. The Fourth District held that the focus must be on the trial. Carratelli II, 915 So.2d at 1263-64. The Fifth District in Austing, however, stated that where counsel fails to preserve reversible error in jury selection, “there can never be a showing as to what would have occurred with a different jury,” 804 So.2d at 604, and concluded that “it is apodictic that the result would have been different— i e., reversal on appeal.” Id. at 605. We agree with the Fourth District.

In establishing the standard for postcon-viction relief, the Supreme Court stated that in determining prejudice, the “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696, 104 S.Ct. 2052 (emphasis added). In this case, the proceeding “whose result is being challenged” is the trial. Counsel’s failure to renew the objection — the subject of the ineffective assistance of counsel claim — occurred at the trial. The result at trial — a conviction — -is what Carratelli challenges; and had counsel renewed the objection, the trial court might very well have reconsidered the pri- or denial and granted the cause challenge. Moreover, the prejudice — a juror to whom Carratelli objects — occurs at trial.

Again relying on the Eleventh Circuit’s decision in Davis, Carratelli argues that the prejudice occurs on appeal. Davis applied the United States Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). See Davis, 341 F.3d at 1315 (“Flores-Ortega thus establishes that the prejudice showing required by Strickland is not always fastened to the forum in which counsel performs deficiently....”). But Flores-Ortega does not support petitioner’s argument. In that case, the defendant alleged that trial counsel was ineffective for failing to file a notice of appeal. Flores-Ortega, 528 U.S. at 473, 120 S.Ct. 1029. The Court held that to establish prejudice in such a case a defendant must “demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Id. at 484, 120 S.Ct. 1029. The Court compared the situation to that in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Id. at 485, 120 S.Ct. 1029. In Hill, the defendant alleged counsel’s ineffective assistance in advising the defendant about a guilty plea. The Court held that to demonstrate prejudice, the defendant had to show “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. In Flores-Ortega, the Supreme Court rejected any requirement that a defendant identify meritorious issues that could have been raised on appeal. 528 U.S. at 486, 120 S.Ct. 1029. The Court stated that “[i]n adopting this standard, we follow the pattern established ..., requiring a showing of actual prejudice (ie., that, but for counsel’s errors, the defendant might have prevailed) when the proceeding in question was presumptively reliable, but presuming prejudice with no further showing from the defendant of the merits of his underlying claims when the violation of the right to counsel rendered the proceeding presumptively unreliable or entirely nonexistent.” Id. at 484, 120 S.Ct. 1029. Thus, the Supreme Court did not hold that the Strickland standard, as applied to trial counsel, is sometimes assessed based on the outcome of the appeal, as the Eleventh Circuit found in Davis. See Davis, 341 F.3d at 1315. Rather, it held that prejudice may be presumed when the defendant essentially was deprived of any proceeding at all. In Flores-Ortega, counsel’s failure to file a notice of appeal deprived the defendant of an appeal. In Hill, counsel’s deficient advice deprived the defendant of a trial.

In this case, Carratelli alleged that trial counsel was ineffective for failing to preserve reversible error in jury selection. He was not deprived of a judicial proceeding, as in Hill and Flores-Ortega, and he is not entitled to a new trial simply because reversible error was not preserved. He had a trial that was presumptively reliable, and under Strickland, it is that trial “whose result is being challenged.” Accordingly, we hold that a defendant alleging that counsel was ineffective for failing to object or preserve a claim of reversible error in jury selection must demonstrate prejudice at the trial, not on appeal.

IV. DEMONSTRATING PREJUDICE

Having concluded that a defendant alleging counsel’s ineffectiveness in failing to renew an objection to the jury must demonstrate prejudice at the trial, we now consider the standard a court must apply. Below we (A) conclude that to establish prejudice the defendant must demonstrate that an actually biased juror served on the jury; and (B) apply this standard to Car-ratelli’s case.

A. The Standard for Demonstrating Prejudice

Taking into account both the differing standards that apply to direct appeals and postconviction proceedings and the concerns about the contemporaneous objection rule, the Fourth District held that to meet the prejudice prong of Strickland, the defendant must demonstrate that someone on the jury was actually biased against the defendant. Carratelli II, 915 So.2d at 1260 (citing Miller v. Webb, 385 F.3d 666, 674 (6th Cir.2004)). The district court relied on its prior decision in Jenkins, which held that the test for prejudice should be “whether the lawyer’s failure to raise a challenge resulted in a biased juror serving on the jury.” Jenkins, 824 So.2d at 982 (citing Goeders v. Hundley, 59 F.3d 73 (8th Cir.1995)). In Jenkins, the court recognized that “[a] lawyer’s competence in failing to make a cause challenge should not be reviewed in a 3.850 proceeding in the same way that a denial of a cause challenge is reviewed on direct appeal.” Id. at 982. The court declined to apply the Singer standard, which applies to direct appeals. Id. As explained above, under this standard when the record supports “any reasonable doubt” about a juror’s impartiality, the reviewing court will find that the trial court abused its discretion by denying the challenge. Busby, 894 So.2d at 96. Both Jenkins and Carratelli II held that in postconviction proceedings the error must be egregious. See Jenkins, 824 So.2d at 982; Carratelli II, 915 So.2d at 1261. As the district court stated:

From a practical standpoint, a jury selection error justifying postconviction relief is so fundamental and glaring that it should have alerted a trial judge to intervene, even in the absence of a proper objection, to prevent an actually biased juror from serving on the jury, thereby irrevocably tainting the trial. Where reasonable people could disagree about a juror’s fitness to serve, the showing of prejudice required for post-conviction relief is lacking.

Carratelli II, 915 So.2d at 1261.

We agree that while the Singer standard may be appropriate for direct appeals, it is not appropriate as a postcon-viction standard. Under Strickland, to demonstrate prejudice a defendant must show that there is a reasonable probability—one sufficient to undermine confidence in the outcome—that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694, 104 S.Ct. 2052. In the context of the denial of challenges for cause, such prejudice can be shown only where one who was actually biased against the defendant sat as a juror. We therefore hold that where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.

A juror is competent if he or she “can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk, 446 So.2d at 1041. Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. See United States v. Wood, 299 U.S. 123, 133-34, 57 S.Ct. 177, 81 L.Ed. 78 (1936) (stating, in a case involving a statute permitting government employees to serve as jurors in the District of Columbia, that the defendant in a criminal case still has the ability during voir dire to “ascertain whether a prospective juror ... has any bias in fact which would prevent his serving as an impartial juror”). Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial—i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record. See Carratelli II, 915 So.2d at 1260 (citing Jenkins, 824 So.2d at 982); see also Patton v. Yount, 467 U.S. 1025, 1038-40, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (stating that in habeas review a state court’s findings are presumed correct and that although the record showing the ambiguous voir dire answers of three jurors challenged for cause “arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty”).

We disagree with Austing's application of the Strickland prejudice standard. In Austing, the Fifth District held that failure to preserve a juror challenge that would constitute reversible error on appeal fulfills both prongs of Strickland. Such a lenient standard disregards the fundamental differences, which we have discussed, between review on appeal and the much higher standard applicable to postconviction relief.

The Austing standard also eliminates the requirement for preserving error at trial. As we have explained,

[t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

Castor v. State, 365 So.2d 701, 703 (Fla.1978). Applying the Singer standard in the postconviction context would essentially eviscerate the requirement of contemporaneous objections because it would apply the same standard in the postconviction context to unpreserved claims that applies on appeal to preserved claims. A defendant asserting ineffective assistance for failing to preserve a cause challenge would have no greater burden than a defendant asserting preserved error on appeal. As the Third District stated in response to a similar claim that proof of an unpreserved reversible error was sufficient to meet Strickland:

If counsel should fail, as here, to preserve for appellate review an otherwise reversible error, it would be of little moment as the conviction would still be subject to being vacated based on an ineffective assistance of counsel claim. The preservation of error rule would have no real consequence as it would apply only when counsel failed to preserve points which would not have merited a reversal in any event. In effect, a “wild card” exception to the preservation of error rule would be created allowing appellate courts to pass on the merits of unpreserved, non-fundamental errors in criminal cases, and-to upset criminal convictions based thereon.

Anderson v. State, 467 So.2d 781, 787 (Fla. 3d DGA 1985); see also Jenkins, 824 So.2d at 982 (“A lawyer’s competence in failing to make a cause challenge should not be reviewed in a 3.850 proceeding in the same way that a denial of a cause challenge is reviewed on direct appeal. To do so is to undermine the trial process and to nullify the reasons for requiring a timely objection in the first place.”).

As we have said, “[t]he sole exception to the contemporaneous objection rule applies where the error is fundamental.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003). To be fundamental, “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.” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). Because, as we noted above, the failure to raise or preserve a cause challenge is not reviewable on direct appeal, it cannot constitute fundamental error per se. If an appellate court refuses to consider unpreserved error, then by definition the error could not have been fundamental. Yet, as Anderson recognized, by imposing no greater burden on postconviction than on appeal, a standard such as that articulated in Austing allows courts to review — and order new trials based on— unpreserved non-fundamental error. To make matters worse, such new trials will occur much later in the process — after the postconviction motion is filed and decided, which may happen years after the original trial. If we agreed to such a standard, it would be more efficient simply to allow appellate courts to review unpreserved error even if not fundamental. Such a rule would eliminate the contemporaneous objection requirement and permit counsel to save" certain arguments for appeal. We are not willing to begin a journey down that dangerous path.

B. Applying the Standard to Carratelli’s Case

Having determined that the prejudice standard applicable to Carratelli’s postcon-viction claim is whether the juror is actually biased, we consider the circumstances of this case. As stated above, Carratelli’s case was the subject of much pretrial publicity, including an article appearing in the Palm Beach Post the day before jury selection began. The undisputed facts were that Carratelli was speeding through a red light when his car collided with another vehicle, killing all six passengers. Carra-telli’s reported defense, which he used at trial, was that he was unconscious at the time because of a medical condition attendant to his Type I diabetes. Carratelli I, 832 So.2d at 857. Potential jurors were questioned about their exposure to media reports and their opinions about the case.

When Mr. Inman — the only juror at issue — was questioned, he stated that he had heard a recent newscast about the incident; had overheard — but did not participate in — a discussion in a barbershop about it; and had read the recent Post article. Although the barbershop patrons opined that Carratelli was guilty, Inman had no opinion. Asked if he could listen to the evidence, ignore the media reports and conversations he had overheard, and follow the law, Inman replied: “I believe that I could, and listen to what was here and what was said to be the law and I would follow that.” Defense counsel questioned him about the barbershop conversation, and Inman responded that the barbershop patrons did not believe Carratelli’s explanation for the incident. Emphasizing that he had not joined the conversation, Inman said that after hearing it, he had “not form[ed] any definite opinion of yes or no” about the case. Questioned whether he had any indefinite opinion, Inman said he knew nothing about diabetes, but he thought “there should have been some kind of forewarning [of the reaction],” “because of when you get sick you have some kind of forewarning.” He did not have the opinion that Carratelli was guilty. The following exchange then occurred:

DEFENSE COUNSEL: So when you left [the barbershop] you felt that the defense that was being asserted didn’t make some sense?
INMAN: That’s basically it, that was my thought.

Asked about the article in the Post, Mr. Inman said he found it too “editorialized.” Defense counsel continued:

DEFENSE COUNSEL: How did that do — what did that [the article] do to the opinion that you had already held about the defense not making sense?
INMAN: I believe in my own mind that if there is some — I will call them doctors, whatever that can say, that there would be no forewarning of any symptoms to cause him to stop or continue or anything like that, I would listen to it.

Later, the following exchange ensued:

DEFENSE COUNSEL: Would you say that this is a fair statement that you have an opinion about the defense but it’s not — you have not positively made up your mind?
INMAN: That’s correct.
DEFENSE COUNSEL: But it would certainly be more difficult for Mr. Car-ratelli to convince you of his innocence now than if you had not read the article had not been involved in that discussion?
INMAN: I believe that’s a fair statement.

The court then questioned Mr. Inman as follows:

COURT: Mr. Inman, you used a phrase a minute ago but I don’t want to put words in your mouth, as to this type of defense; I gather that you think it’s possible there is a medical explanation that would explain the situation?
INMAN: Well, there’s a possibility that that could happen.
COURT: And regardless of what discussions you had already, you’d be willing as a juror, to sit here and listen to whatever medical testimony you hear?
INMAN: Absolutely.
COURT: Whether it makes sense or it doesn’t?
INMAN: Yes.
COURT: Would you be able to set aside any input you had, bias or prejudice, and sit here and assure us all that you can be a fair and impartial juror?
INMAN: If I come in here as a juror, I will sit down with an open slate and listen to what is said and make up my mind from there.

(Emphasis added.)

After reviewing this same record on direct appeal, the Fourth District affirmed without discussing Carratelli’s claim that the trial court abused its discretion in denying his cause challenge to juror Inman. See Carratelli I, 832 So.2d at 855. Then, in reviewing Carratelli’s ineffective assistance claim in his 3.850 motion, the en banc court applied to these facts the actual bias standard we adopt here and held that “|j]uror Inman’s slight familiarity with the case did not rise to that level of actual bias necessary for postconviction relief.” Carratelli II, 915 So.2d at 1261. We agree. The record plainly shows that juror Inman held no firm opinion except that he could be fair, listen to the evidence, and follow the law. Thus, Carratelli fails to demonstrate prejudice under Strickland.

VI. CONCLUSION

The issue in this case requires us to address only the requirements for establishing prejudice under Strickland on a postconviction claim that counsel was ineffective for failing to preserve or raise a cause challenge before a jury is sworn. Accordingly, we need not address the requirements for meeting Strickland’s first prong — deficient performance. In Carra-telli II, the district court held that the prejudice must relate to the trial, not the appeal. Further, to obtain relief the defendant must establish actual bias. We agree. We also agree that Carratelli failed to meet that standard. Accordingly, we approve the Fourth District’s decision in Carratelli II. We disapprove the Fifth District’s decision in Austing to the extent it is inconsistent with our opinion.

It is so ordered.

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

      . In a specially concurring opinion, however, one judge argued that the trial court also erred in denying the cause challenge to Mr. Inman, who served on the jury. Carratelli I, 832 So.2d at 863.

      . State v. Neil, 457 So.2d 481, 486 (Fla.1984), prohibited the use of peremptory challenges to exclude jurors based on race.

      . Although Joiner involved a Neil objection, district courts have applied it to jury selection issues in general, including denial of cause challenges. See Milstein v. Mut. Sec. Life Ins. Co., 705 So.2d 639, 640 (Fla. 3d DCA 1998) (stating that the "reasoning of Joiner renders it applicable to jury selection generally” and that the court did "not think Trotter [v. State, 576 So.2d 691 (Fla.1990)] stands for the proposition that it is unnecessary for the litigant to renew the objection prior to the time that the jury is sworn”); see also Couch v. Dunn Ave. Shell, Inc., 803 So.2d 803, 805 (Fla. 1st DCA 2001) ("[W]e join the Milstein court and other Florida appellate courts in holding that Joiner is not confined to the Neil context. Thus, for the reasons discussed, we find that Couch has failed to preserve for appellate review the alleged error in failing to grant peremptory challenges.”).

      . If a defendant is granted the same number of additional peremptories as cause challenges erroneously denied, however, he cannot demonstrate prejudice. Busby, 894 So.2d at 97.

      . The Eleventh Circuit has since recognized that Davis articulated a “razor thin exception,” and acknowledged that the “reasoning and the result in Davis arguably were pushing things given what the Supreme Court said in Strickland about measuring the effect of counsel's errors at the guilt stage of a trial against the result of the trial instead of the appeal.” Purvis, 451 F.3d at 739-40.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony DARVILLE, Petitioner, v. STATE of Florida, Respondent.
    No. SC05-2014.
    Supreme Court of Florida.
    July 5, 2007.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Celia A. Terenzio, Bureau Chief, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Darville v. State, 912 So.2d 63 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal cited Paul v. State, 912 So.2d 8 (Fla. 4th DCA 2005), quashed in part, 934 So.2d 1167 (Fla.2006), a case which was then pending before this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed this case and proceeded to issue our decision in State v. Paul, 934 So.2d 1167 (Fla.2006). Once that decision was final, we issued an order directing the respondent to show cause why we should not exercise our jurisdiction to summarily quash the decision under review and remand for reconsideration in light of our decision in Paul. Upon consideration of respondent’s response and petitioner’s reply thereto, we have determined to do so.

We accordingly grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Paul

It is so ordered.

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


author: PARIENTE, J.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. HOLY CROSS HOSPITAL, INC., etc., Respondent. Holy Cross Hospital, Inc., et al., Petitioners, v. Allstate Insurance Company, Respondent.
    Nos. SC05-435, SC05-545.
    Supreme Court of Florida.
    July 12, 2007.

      Richard C. Godfrey, Andrew A. Kassof, and R. Christopher Heck of Kirkland and Ellis, LLP, Chicago, IL, and Jack R. Reiter of Adorno and Yoss, LLP, Miami, FL, for Petitioner/Cross-Respondent.
    George A. Vaka of Vaka, Larson, and Johnson, PL, Tampa, FL, and Laura M. Watson of Watson and Lentner, Fort Lauderdale, FL, for Respondent/Cross-Petitioner.
    Peter J. Valeta of Meckler, Bulger and Tilson, LLP, Chicago, IL, on behalf of the Florida Insurance Council, Inc.; Eric Lee of Lee and Amtzis, PL, Boca Raton, FL, and Lawrence M. Kopelman of Kopelman and Blankman, Fort Lauderdale, FL, on behalf of Florida Consumer Action Network; and Laura M. Watson, Fort Laud-erdale, FL, on behalf of Florida Hospital Association and Florida Orthopaedic Society, as Amicus Curiae.
   PARIENTE, J.

This case arises from a dispute concerning the amount an automobile insurance company was required to pay a hospital at which its insureds received medical treatment. In Allstate Insurance Co. v. Holy Cross Hospital, Inc., 895 So.2d 1241 (Fla. 4th DCA 2005), the Fourth District Court of Appeal certified conflict with the Fifth District Court of Appeal’s decision in Nationwide Mutual Fire Insurance Co. v. Central Florida Physiatrists, P.A., 851 So.2d 762 (Fla. 5th DCA 2003) (CFP ) The conflict issue is whether a personal injury protection (PIP) insurer must comply with the requirements of section 627.736(10), Florida Statutes (2006), in order to pay PIP benefits based on a reduced rate that a medical provider contractually agreed to accept. The Fourth District aligned itself with the Second District Court of Appeal’s decision in Nationwide Mutual Insurance Co. v. Jewell, 862 So.2d 79 (Fla. 2d DCA 2003), which concluded that compliance with section 627.736(10) is not a prerequisite to the payment of PIP benefits at reduced rates that the medical provider contractually agreed to accept. Because we agree with both the Second District and the Fourth District on this issue, we approve the Fourth District’s decision in Holy Cross and the Second District’s decision in Jewell and disapprove of the Fifth District’s decision in CFP.

FACTS AND PROCEDURAL HISTORY

Lawrence Weisner and Matthew Winik were injured in separate automobile accidents on April 12, 2001, and May 10, 2001, respectively. Weisner and Winik each had automobile insurance policies through Allstate that contained PIP benefits. Both received medical treatment on the day of their accidents at Holy Cross Hospital, Inc. (Holy Cross), which submitted the medical bills to Allstate. Although the record is silent as to how Weisner and Winik chose to receive treatment at Holy Cross, there is no evidence to suggest that they were directed to this hospital by Allstate.

Rather than remitting eighty percent of the entire bill as charged, Allstate paid eighty percent of a reduced rate. Allstate’s payment at this reduced rate was predicated on separate contracts that Holy Cross and Allstate each allegedly entered into with a provider network known as Beech Street Corporation (Beech Street). Allstate asserted that, based on Holy Cross’s contract with Beech Street and Beech Street’s contract with Allstate, the hospital agreed to provide medical services to covered insureds at reduced rates. Holy Cross insisted that because neither Weisner nor Winik had preferred provider (PPO) policies with Allstate and because Allstate had not contracted directly with any health care provider, Allstate could not take advantage of any reduced rates and was required to pay eighty percent of all reasonable medical expenses, i.e., eighty percent of the full bill as charged, as set forth in section 627.736(l)(a), Florida Statutes (2006). Based on assignments from Weisner and Winik of their benefits under Allstate’s policies, Holy Cross filed suit seeking declaratory judgment and damages.

The county court granted Holy Cross’s motion for partial summary judgment based on the Fifth District’s decision in CFP, which at that time was the only appellate court to have addressed the issue. The county court also certified the following question as one of great public importance to the Fourth District: “Is an insurer required to comply with the provisions of section 627.736(10), Fla. Stat. in order to take preferred provider reductions in the payment of PIP benefits for medical services rendered to its insureds?” Holy Cross, 895 So.2d at 1242.

On appeal, the Fourth District answered the certified question in the negative, adopting the view of the Second District in Jewell. Accordingly, the Fourth District reversed the trial court’s grant of summary judgment in favor of Holy Cross, remanded to the trial court for a determination of any outstanding issues concerning the contracts between Beech Street and both Holy Cross and Allstate, and certified conflict with CFP. See Holy Cross, 895 So.2d at 1244-45. We accepted jurisdiction to resolve the conflict.

ANALYSIS

The issue we decide is whether an automobile PIP insurer must comply with the requirements of section 627.736(10) in order to pay PIP benefits based on a reduced rate that a medical provider contractually agreed to accept. Because the conflict issue requires this Court to interpret provisions of the Florida Motor Vehicle No-Fault Law (No-Fault Law), the standard of review is de novo. See Foundation Health v. Westside EKG Assocs., 944 So.2d 188, 193-94 (Fla.2006) (applying the de novo standard of review to questions of statutory interpretation); Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004) (same).

In 1971, the Florida Legislature enacted the No-Fault Law. See ch. 71-252, § 1, Laws of Fla. The No-Fault Law is a comprehensive statutory scheme, the purpose of which is to “provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits.” § 627.731, Fla. Stat. (2006); accord United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001) (stating that the intent of the No-Fault Law is “to provide a minimum level of insurance benefits without regard to fault”). The No-Fault Law mandates security that can be established by alternative means, one of which is PIP insurance. See § 627.733, Fla. Stat. (2006).

The “Required Personal Injury Protection” provision, or the PIP statute, is codified at section 627.736 and is “an integral part of the no-fault statutory scheme.” Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002). The statute requires motor vehicle insurance policies issued in Florida to provide PIP benefits for bodily injury “arising out of the ownership, maintenance, or use of a motor vehicle.” § 627.736(1), Fla. Stat. (2006); accord Blish v. Atlanta Cas. Co., 736 So.2d 1151, 1153 (Fla.1999). The PIP statute is unique, in that it abolished “a traditional common-law right by limiting the recovery available to ear accident victims” and in exchange, required PIP insurance that was recoverable without regard to fault. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1077 (Fla.2006). Although recovery is restricted under this statutory scheme, this Court has held that the PIP statute is a reasonable alternative to common law tort principles in that it provides “swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Id. (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000)). For purposes of determining whether insurers may pay PIP benefits based on contractually agreed-upon reduced rates, a discussion of the relevant subsections of the PIP statute is helpful.

Subsection (1) of the PIP statute outlines the coverage that PIP insurers must provide for medical, disability, and death benefits. As to medical benefits, which are the subject of this case, insurers must pay “Mighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including ... medically necessary ambulance, hospital, and nursing services.” § 627.736(l)(a), Fla. Stat. (emphasis supplied). PIP insurers are required to comply with subsection (1) and cover all medically necessary medical expenses at that percentage, unless one of the specific exclusions set forth in subsection (2) applies. See § 627.736(2), Fla. Stat (2006).

Subsections (4) and (5) set forth strict guidelines for both PIP insurers and medical providers, including how and when charges must be submitted and benefits paid. See § 627.736(4)-(5), Fla. Stat (2006). For instance, subsection (5)(a) provides that any “physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by [PIP] insurance may charge the insurer and injured party only a reasonable amount pursuant to this section.... In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services.” § 627.736(5)(a), Fla. Stat. In sum, these subsections detail standards for the type of PIP policies that may be issued, the percentage of the medical bills a PIP insurer is required to cover, and how the benefits under those policies must be paid.

When the PIP statute was initially enacted in 1971, it was unclear whether PIP insurers were authorized to increase the medical benefits coverage beyond the standard eighty percent required by subsection (l)(a). Fla. H. Comm, on Ins., CS/HB 2089 Staff Analysis 5 (June 12, 1991). This question was resolved in 1991, when the Legislature added subsection (10), the provision at issue in this case, which for the first time authorized PIP insurers to enter into contracts with preferred providers, increase PIP medical benefits beyond the standard eighty percent, and reduce the standard PIP deductibles in certain circumstances. See ch. 91-106, § 7, Laws of Fla.

As originally enacted, the provision provided:

(10) An insurer may negotiate and enter into contracts with licensed health care providers for the benefits described in this section, referred to in this section as “preferred providers,” which shall include health care providers licensed under chapters 458, 459, 460, 461, and 463. The insurer may provide an option to an insured to use a preferred provider at the time that medical services are sought by the insured for the benefits described in this section. If the insured elects to use a provider who is not a preferred provider, the medical benefits provided by the insurer shall be as required by this section. If the insured elects to use a provider who is a preferred provider, the insurer may pay medical benefits in excess of the benefits required by this section and may waive or lower the amount of any deductible that applies to such medical benefits. The insurer may not require a policyholder or applicant to make any election in this regard at the time of purchase of the policy or at any time other than at the time that medical services are sought. The insurer shall provide each policyholder with a current roster of preferred providers and shall make such list available for public inspection during regular business hours at the principal office of the insurer within the state.

Id. Thus, the original version of subsection (10) did not allow PIP insurers to issue PPO policies, because that would have required insureds to decide whether to participate in the PPO program at the time they purchased a policy. Rather, insureds could choose to use a preferred provider only at the time medical services were sought. If the insured used such a provider, PIP insurers could “pay medical benefits in excess of the benefits required by [statute] and may waive or lower the amount of any deductible that applies to such medical benefits.” Id.

In 1992, the Legislature amended this provision, deleting the prohibition against the issuance of PPO policies and specifically authorizing such policies if the insurer complied with the requirements of the subsection. See ch. 92-318, § 84, Laws of Fla. Subsection (10), with the 1992 amendments shown in underline and strike-through, currently reads as follows:

(10) An insurer may negotiate and enter into contracts with licensed health care providers for the benefits described in this section, referred to in this section as “preferred providers,” which shall include health care providers licensed under chapters 458, 459, 460, 461, and 463. The insurer may provide an option to an insured to use a preferred provider at the time of purchase of the policy for personal injury protection benefits, if the requirements of this subsection are met feat-medical services-are-sought by the-insured for the benefits described in this- section. If the insured elects to use a provider who is not a preferred provider, whether the insured purchased a preferred provider policy or a nonpre-ferred provider policy, the medical benefits provided by the insurer shall be as required by this section. If the insured elects to use a provider who is a preferred provider, the insurer may pay medical benefits in excess of the benefits required by this section and may waive or lower the amount of any deductible that applies to such medical benefits. If the insurer offers a preferred provider policy to a policyholder or applicant, it must also offer a nonpreferred provider policy. The insurer may-not require a policyholder or applicant- to make any election in this regard-ah the time ■ of purchase of the policy or at any time other than at the time that medical-services are- sought. The insurer shall provide each policyholder with a current roster of preferred providers in the county in which the insured resides at the time of purchase of such policy, and shall make such list available for public inspection during regular business hours at the principal office of the insurer within the state.

Id.

As always, legislative intent is the polestar that guides a court’s inquiry under the No-Fault Law. Rodriguez, 808 So.2d at 85; Blish, 736 So.2d at 1155. Such intent is derived primarily from the language of the statute. Cason v. Florida Dep’t of Mgmt. Servs., 944 So.2d 306, 312 (Fla.2006). “Where the wording of the [No-Fault] Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language.... ” Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1095 (Fla.2005) (quoting Rodriguez, 808 So.2d at 85).

Holy Cross and Allstate both maintain that the language in this provision is clear and unambiguous, yet they reach completely opposite conclusions as to the statute’s meaning. Holy Cross cites the Fifth District’s decision in CFP to support its argument that PIP insurers must comply with the strict guidelines of subsection (10) whenever an insurer reimburses a health care provider at a reduced rate. Conversely, Allstate cites the Second District’s decision in Jewell to support its contention that the requirements of subsection (10) do not regulate the contracts at issue here because the provision applies only when a PIP insurer offers a PPO policy to its insured. We agree with Allstate that neither the language of subsection (10) nor any other provision of the PIP statute provides a blanket prohibition against an insurer paying a health care provider based on a reduced rate that the provider contractually agreed to accept.

As is evident from the language of subsection (10), the 1992 amendments authorized insurers to issue PPO policies in the context of PIP insurance. Subsection (10) is the sole avenue by which insurers can modify the standard PIP policy as outlined in section 627.736 and when such policies are offered, the insurers clearly must comply with the statutory mandates of subsection (10). Under subsection (10), if an insured purchases a PPO policy and chooses to use a preferred provider, then the PIP insurer may “pay medical benefits in excess of the benefits required [by statute] and may waive or lower the amount of any deductible that applies to such medical benefits.” § 627.736(10), Fla. Stat. Thus, an insurer could cover medical benefits at 100% (instead of the standard 80% re-quired by subsection (l)(a)). Basically, PPO policies can provide insureds with the opportunity to obtain full coverage of their medical bills (up to 100%), and allow insurers to increase the standard $10,000 policy limit or waive the applicable deductible.

In sum, subsection (10) authorizes insurers to provide consumers with alternatives to the standard coverage options in the PIP statute. This provision allows PIP insurers to enter into contracts with preferred providers, issue PPO policies, and, most importantly, increase the “medical benefits in excess of the benefits required by this section” and “waive or lower the amount of any deductible that applies to such benefits.” § 627.736(10), Fla. Stat. However, where the insurer is neither issuing PPO policies nor attempting to modify the standard PIP insurance policy as set forth in section 627.736, we conclude that there is nothing in the language of the statute that requires an insurer to comply with subsection (10).

Contrary to Holy Cross’s assertion, we do not interpret the first sentence in subsection (10) as providing the only authority for an insurer to enter into contracts with healthcare providers. That sentence states that “[a]n insurer may negotiate and enter into contracts with licensed health care providers for the benefits described in this section, referred to in this section as ‘preferred providers,’ which shall include health care providers licensed under chapters 458, 459, 460, 461, and 463.” § 627.736(10), Fla. Stat. Although this sentence clearly involves contracts between PIP insurers and medical providers, the phrase “for the benefits described in this section,” indicates that this sentence is part of the provision’s scheme to authorize the issuance of PPO policies. In essence, it is the necessary first step that mpkes it possible for PIP insurers to create preferred provider networks and issue PPO policies for PIP benefits. It would be a strained reading to interpret this sentence as prohibiting insurers from entering into contracts with health care providers unless the contract is utilized for the sole purpose of issuing PPO policies. Further, absent an express prohibition against such contracts, we do not read the permissive “may” in the first sentence as precluding the types of contractual relationships that Allstate allegedly negotiated in this case.

We reject Holy Cross’s argument in the alternative that a payment which is eighty percent of a contractually agreed-upon reduced rate is a per se violation of section 627.736. First, there is no provision in subsection (10) or the entire PIP statute that specifically precludes an insurer from entering into a contract with a provider to create an agreed-upon fee schedule for reduced rates. See Jewell, 862 So.2d at 83. Second, payment at a reduced rate does not violate subsection (l)(a) so long as the insurer pays “eighty percent of all reasonable expenses.” § 627.736(1)(a), Fla. Stat. (emphasis supplied). What a provider customarily charges or has previously accepted are important factors for determining whether a fee is reasonable. See § 627.736(5)(a), Fla. Stat. This is especially true where the provider has agreed to accept a certain fee as reasonable payment for the services rendered. Jewell, 862 So.2d at 86. Accordingly, “[i]f a provider has agreed in a valid and enforceable contract to accept payment for services at a particular rate, that rate would necessarily be a ‘reasonable amount for the services ... rendered.’ ” Id. (quoting § 627.736(5)(a), Fla. Stat.).

Finally, Holy Cross and its amici assert that Allstate has circumvented the statute and created its own silent PPO or managed care system with its provider network scheme, at the expense of the quality of healthcare and to the detriment of its insureds. Although we recognize that these are valid concerns, there is no evidence in the record to suggest that Allstate has created a silent PPO or managed care system that forces an insured to use preferred providers, engaged in actions to the detriment of its insureds, or otherwise violated the statutory scheme.

CONCLUSION

Based on the foregoing analysis, we conclude that an insurer, which neither violates the provisions of section 627.736 nor otherwise attempts to modify its responsibilities under the standard PIP policy, is not required to comply with the requirements of section 627.736(10) in order to pay PIP benefits based on a reduced rate that a medical provider contractually agreed to accept. Subsection (10) regulates insurers that issue PPO policies or otherwise attempt to amend the standard PIP benefits set forth in the PIP statute. A PIP insurer that merely enters into a contract with a preferred provider to create an agreed-upon fee schedule for medical services and does not issue PPO policies or amend the standard PIP policy requirements in section 627.736 may do so without complying with the requirements of subsection (10). In essence, the effect of such contractual agreements would be to predetermine what constitutes a reasonable expense” for a covered service, which comports with the purpose of the PIP statute to provide “swift and virtually automatic payment” of PIP benefits. Nichols, 932 So.2d at 1077 (quoting Ivey, 774 So.2d at 683-84).

Therefore, we approve the Fourth District’s decision in Holy Cross and the Second District’s decision in Jewell and disapprove the Fifth District’s decision in CFP to the extent that it conflicts with this opinion. Because the trial court and Fourth District expressly declined to address any issues relating to the contracts between Beech Street and both Holy Cross and Allstate, any outstanding issues concerning the contracts should be addressed on remand.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, and BELL, JJ., concur.

CANTERO, J., recused.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      .The parties disagree as to the substance of, and even the existence of, these contracts. Holy Cross contends that, even if the contracts exist, they do not cover payment of PIP benefits. However, because Holy Cross argued that Allstate had violated the statute notwithstanding the existence of these agreements, the trial court and the Fourth District assumed the contracts existed and reached the statutory construction issue. Accordingly, our analysis of this case assumes the existence of enforceable contracts by which Holy Cross agreed to accept PPO rates from Allstate for any of its insureds that received treatment covered by their PIP policies. Any issues regarding the contracts may be addressed on remand.

      . The county court awarded damages in the amount of $74.95 and $349.23 (including prejudgment interest) on the Winik and Weisner claims, respectively.

      . Section 627.730, Florida Statutes (2006), states that ",[s]ections 627.730-627.7405 may be cited and known as the 'Florida Motor Vehicle No-Fault Law.' ”

      . PPO policies are in essence a managed care option to insurance, in which insurers "strongly encouragef] [policyholders] to choose a preferred’ provider ... [through] economic incentives such as no copayments, lower deductibles, and higher coverage.” H. Ward Classen, Provider-Based Preferred Provider Organizations: A Viable Alternative Under Present Federal Antitrust Policies?, 66 N.C. L.Rev. 253, 255 (1988).

      . At oral argument, Holy Cross argued that the Allstate insureds may still be liable to Holy Cross for 20% of the full amount billed rather than 20% of the reduced rates. Allstate counters that the insured will benefit by having to pay only 20% of the reduced rate. For the purposes of this opinion, we are assuming that the maximum liability of the insureds would be 20% of the reduced rate.

      . We decline to address any of the affirmative defenses that the Fourth District ruled had been waived by Allstate. Holy Cross, 895 So.2d at 1245.


author: BROWNING, C.J. DAVIS, J.,

text:
    Jimmy R. SMITH and Patricia Segrest Smith, Appellants, v. John Vernon HAGGARD and Wife, Jennifer Ann Haggard, Appellees.
    No. 1D05-4645.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Rehearing Denied April 23, 2007.
    Bret A. Moore, of The Moore Law Firm, P.A., Niceville, for Appellants.
    Mark Welton and John C. Bryan, Jr., of Welton & Williamson, LLC, Crestview, for Appellees.
   BROWNING, C.J.

Appellants appeal a final judgment of foreclosure and allege that the trial court erred by not determining that Appellants tendered legal payment to Appellees prior to the entry of the final judgment of foreclosure that barred its entry. We agree and reverse.

This appeal stems from an action to foreclose an agreement for deed given by the Appellees to Appellants. After considerable litigation the trial court entered the two orders that form the basis of this appeal. One order was entered on June 3, 2004, and provides that Appellants owe Appellees $90,815.30 and that such amount must be paid on or before May 12, 2004, to the office of Appellees’ attorney, and if not paid on that date, upon submission of an affidavit from Appellees’ attorney of nonpayment, a final judgment would be entered ex parte. Proceedings after the June 3, 2004, order necessitated entry of another order specifying and ordering payment by Appellant of $90,815.30, plus a per diem interest charge of $25.09 from May 12, 2004, until payment of such amount to Appellees’ attorney on or before October 15, 2004. If not paid, the order further provided that the remedies available to Appellees under the court’s order of June 3, 2004, were available to Appellees.

After entry of the October 13, 2004, order, Appellants, on October 19, 2004, tendered a good and sufficient check for the amount owed to Appellees under the October 13, 2004, order, made payable jointly to Appellees and Washington Mutual Bank, the holder of the mortgage lien on the property to be conveyed by Appel-lees to Appellants; the mortgage indebtedness was the debt of Appellees, who could not give Appellants a marketable title without removing this lien by payment. Appellees rejected such tender on the ground that Appellants were required to pay the full amount only to Appellees, and that they would have to trust that Appellees would pay Washington Mutual Bank and clear the title to the property Appellants were purchasing. In other words, Appellees insisted on Appellants’ receiving an encumbered title at closing and trusting Appellees to do the proper thing, pay off Appellees’ mortgage indebtedness. Appellants prudently rejected such possibility, paid Washington Mutual Bank directly, and paid the balance owed to Appellees solely. These payments would have provided to, and for, Appellees’ benefit, the total amount due to them under the judge’s orders, but Appellees rejected such payment as well and continued the litigation before the trial court by moving ex parte for entry of a final judgment of foreclosure. Appellants made a timely objection to entry of such final judgment.

At the ensuing hearing, Appellants argued that their tender of such payment constituted “payment” as a matter of law, but the trial court disagreed and ordered the lands sold at a foreclosure sale. Ap-pellees bid in the property for $50,000.00, leaving a deficiency of $48,815.30, plus interest. Appellants were unable to bid because of their funds being under the control of their financing bank, and they did not have the $1,300.00 clerk’s fee that was imposed.

The precise issue presented by this appeal has never been addressed by an appellate court of this state. However, there are cases that deal with the elements of “legal payment” that give guidance. See Goble v. Frohman, 901 So.2d 830 (Fla.2005); Nehme v. Smithkline Beecham Clinical Lab., Inc., 863 So.2d 201 (Fla.2003). These cases define “payment” not only as direct payment, but also the discharge of a creditor’s debt by a debtor in certain circumstances. Here, Appellees’ debt, a mortgage indebtedness that had to be satisfied before Appellees could convey an unencumbered title to the property to Appellants as required by the parties’ agreement for deed, would have been discharged had not Appellees refused Appellants’ tender. We conclude that in these circumstances, Appellants’ tender of the joint check to Appellees constituted legal payment.

We are not unmindful of, and consider persuasive on this decision, the long-standing equitable principle that substance prevails over form. See Schupler v. E. Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948). Our decision is buttressed by this maxim. Appellants, by their tender of the joint check to Appellees, provided them with every dollar owed to them if Appellants performed as required by the parties’ agreement for deed. To hold that payment was improper because Appellees wanted to personally pay their lien indebtedness to Washington Mutual Bank violates such maxim.

Moreover, to hold otherwise would lead to an absurd result and impose burdensome consequences on the real estate closing market. Closing attorneys and title companies close thousands of transactions each business day. Where the property involved in a transaction is subject to an existing lien, which is the rule rather than the exception, at closing any lien-holders are paid off and the amount credited to the party that created the lien. Payment to the lienholder is considered payment to the debtor party because it is for the benefit of such party by discharging that party’s debt and clears the title for the purchasing party, as required by most contracts to purchase. The consequences of not following such a rule would expose closing agents to professional liability, foster litigation, and encourage unwanted business practices.

For these reasons, we REVERSE and REMAND for proceedings consistent with this opinion.

KAHN, J., concurs in result; DAVIS, J., dissents with opinion.

DAVIS, J.,

dissents.

I respectfully dissent. I cannot find that the Smiths properly exercised their right of redemption because they failed to comply with the trial court’s orders.

On June 28, 2000, the Smiths purchased a house from the Haggards and agreed to pay the Haggards the purchase price plus interest and taxes in monthly installments. Because the' Smiths failed to make some of the payments, the Haggards brought a foreclosure action. At some point after the sale of the property, which was never recorded, the Haggards obtained a mortgage on the property through Washington Mutual Bank.

The parties entered into a settlement agreement by which the Smiths either could pay sums owed as of January 23, 2004, or could give written notice of their intent to close a loan and close the loan within thirty days of that notice. The Haggards moved for entry of final judgment due to the Smiths’ failure to comply with the settlement agreement. The Smiths opposed the motion arguing that the Haggards would not cooperate with the Smiths’ lending institution. On June 3, 2004, the court entered an order setting the amount of money due and directing the Smiths to pay the money to the Haggards’ counsel. The court also stated that the Haggards’ counsel could execute an affidavit and a proposed final judgment of foreclosure if the Smiths failed to comply with the order.

In response to motions filed by both parties, the trial court entered another order on October 13, 2004, again stating that the Smiths should pay the Haggards’ attorney and that payment was due no later than October 15, 2004. The Smiths did not tender payment until October 19, 2004, and the Haggards’ attorney refused to accept the check because it was made jointly payable to the Haggards and Washington Mutual Bank. On October 26, 2004, the trial court entered a final judgment of foreclosure stating that the property would be sold on November 29, 2004, unless the Smiths paid the Haggards or their attorneys the total amount owed. On November 10, 2004, the Smiths filed a notice of payment of redemption amount stating that they paid a portion of the sums owed directly to Washington Mutual Bank and the remaining sums to the court registry.

The trial court found that the Smiths failed to properly exercise their right of redemption because the Smiths failed to deliver payment by October 15. The trial court also found that the Smiths’ attempts to exercise their right of redemption by paying the Haggards and the mortgage company jointly and by paying off the mortgage directly were improper. The court noted that this was not a normal real estate closing and that it should not have been treated as such by the Smiths. The trial court confirmed the sale of the property.

I cannot agree with Judge Browning’s position that the Smiths properly exercised their right of redemption in this case because the Smiths failed to comply with the trial court’s orders. The trial court repeatedly set deadlines for the tender of payment and the Smiths repeatedly failed to meet these deadlines. Additionally, the Smiths should have tendered payment directly to the registry of the court or to the mortgagee, which was the Haggards in this case, not to the mortgagee and a third party. Indian River Farms v. YBF Partners, 777 So.2d 1096, 1099 (Fla. 4th DCA 2001); Saidi v. Wasko, 687 So.2d 10, 12 (Fla. 5th DCA 1996). If the Smiths truly wanted to exercise their right, all they had to do was comply with the trial court’s order. Therefore, I would affirm the trial court’s final judgment of foreclosure and confirmation of the sale of the house. I note that there is no majority opinion of precedential value in this case, but merely a judgment of this court to reverse and remand for additional proceedings.