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    Arthur BARNHILL, III, Appellant, v. STATE of Florida, Appellee. Arthur Barnhill, III, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC06-275, SC06-1803.
    Supreme Court of Florida.
    Oct. 25, 2007.
    Rehearing Denied Dec. 13, 2007.

      Bill Jennings, Capital Collateral Regional Counsel, and Robert T. Strain, Assistant CCRC — Middle Region, Tampa, FL, for Appellani/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Arthur Barnhill, III appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow we affirm the trial court’s order denying postconviction relief and deny the petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

On direct appeal, this Court summarized the facts in this case as follows:

Arthur Barnhill, III, (Barnhill) was raised by his grandparents after his mother essentially abandoned him and his father was imprisoned. When he was 20 years of age, Barnhills grandparents asked him to leave the house because Barnhill did not follow their rules. He went to live with the family of his friend, Michael Jackson, a codefendant in this case. He lived with the Jacksons for approximately two weeks before he was asked to leave their home as well. Barnhill decided to go to New York, where his girlfriend lived. To get there, Barnhill planned to steal a car and money from Earl Gallipeau, who was 84 years old. Gallipeau was a lawn service customer of Barnhills grandfather. Barnhill and Gallipeau met when Barn-hill did lawn work for his grandfather at Gallipeaus house.
On Sunday, August 6, 1995, Barnhill and Michael Jackson walked to Galli-peaus house to steal Gallipeaus car. They entered the house through the garage and waited in the kitchen for approximately two hours. Gallipeau was in another room watching television. According to Michael Jackson, it was not until they were in Gallipeaus kitchen that Barnhill revealed his plan to kill Gallipeau before taking the car. At that point, Jackson abandoned the enterprise and left. At least one witness saw Michael Jackson walking alone in Galli-peaus neighborhood away from Galli-peaus house.
When Gallipeau got up from watching television and went into the kitchen, Barnhill ambushed him and attempted to strangle him. When the attempt failed, Barnhill got a towel to use as a ligature around Gallipeaus neck. The second attempt was unsuccessful, so Barnhill removed Gallipeaus belt from around his waist and wrapped it around Gallipeaus neck four times, breaking Gallipeaus neck and killing him. Barnhill then dragged Gallipeau .through the house to a back bedroom and left him there.
Barnhill took Gallipeaus money, wallet, keys, and car, and eventually met Jelani Jackson, Michael Jacksons brother. Barnhill and Jelani Jackson drove to New York and Barnhill went to his girlfriends apartment. Shortly thereafter, New York police located Gallipeaus vehicle, found Barnhill, and arrested him on an old warrant.
Barnhill told police that he was at Gallipeaus house. with Jelani Jackson, but that Jelani Jackson actually killed Gallipeau and he only held Gallipeaus hands down to help. This, Barnhill indicated, explained the presence of Galli-peaus blood on his shirt. Barnhill filed a motion to suppress his statement to police and evidence obtained during his arrest, which the trial court denied. Within ten days after the suppression hearing, defense counsel requested a competency hearing for Barnhill. After counsel requested the competency hearing, he filed a motion to disqualify the trial judge based on certain comments made at the suppression hearing. The trial judge denied the motion to disqualify. Barnhill thereafter entered pleas of no contest to first-degree murder, burglary of a dwelling while armed, armed robbery, and grand theft. The trial court made a finding of guilt as to each charge.

Barnhill v. State, 834 So.2d 836, 840-41 (Fla.2002).

The case proceeded to the penalty phase where both aggravating and mitigating evidence was presented. The jury recommended death by a vote of nine to three. After a Spencer hearing, the trial court sentenced Barnhill to death. On direct appeal, Barnhill raised seven issues. In affirming the conviction and sentence, this Court rejected all the arguments raised.

Barnhill filed a petition for writ of cer-. tiorari to the U.S. Supreme Court which was denied. See Barnhill v. Florida, 539 U.S. 917, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003). Barnhill filed a motion to vacate judgments of conviction and sentences on December 1, 2003, pursuant to Florida Rule Criminal Procedure 3.851. The motion was amended on February 16, 2004, and June 8, 2004. An evidentiary hearing was held on May 19 and 20, 2005. The witnesses at the hearing included Barn-hill’s trial attorneys Arthur Haft and second chair, Timothy Caudill; Delores Barn-hill (Barnhill’s grandmother); Arthur Barnhill, Jr. (Barnhill’s father); Andrew Gruler (social worker); Dr. Bard Fisher (clinical forensic psychologist); Dr. Harry McClaren (clinical forensic psychologist); and Dr. Jeffrey Danziger (psychiatrist). The trial court denied the motion on January 12, 2006, Barnhill has appealed the denial to this Court, raising ten claims, and he has also filed a petition for writ of habeas corpus, raising one claim.

ANALYSIS

Rule 3.851 Claims

Ineffective Assistance of Counsel Claims

. Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied: (1) the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards, and (2) the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. See Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986).

As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). For the second prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052; see also Valle v. State, 705 So.2d 1331, 1333 (Fla.1997). “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.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

A court considering a claim of ineffectiveness of trial counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. See Maxwell, 490 So.2d at 932. Additionally, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. See Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).

Generally, this Court’s standard of review following a denial of a postcon-viction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court’s factual findings. See McLin v. State, 827 So.2d 948, 954 n. 4 (Fla.2002). “As long as the trial court’s findings are supported by competent substantial evidence, ‘this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’ ” Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)). However, the circuit court’s legal conclusions are reviewed' de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Additionally, there is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. See id. at 689, 104 S.Ct. 2052; see also Rivera v. Dugger, 629 So.2d 105, 107 (Fla.1993). The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

Failure to File Motion to Withdraw Plea

Barnhill first alleges trial counsel rendered ineffective assistance by failing to file a motion to withdraw his guilty plea that was entered, over counsel’s objections, at the start of the guilt phase of his trial. Barnhill asserts counsel’s query regarding his competency to proceed after the entry of plea coupled with the court-ordered competency evaluations should have led to a formal motion to withdraw the plea. Conversely, the State argues Barnhill failed to allege that he wished to withdraw his plea or that counsel prevented him from withdrawing his plea. Additionally, the State argues Barnhill failed to allege that the plea was not voluntary or that he was incompetent at the time.

Barnhill pled guilty over counsel’s objection at the start of the guilt phase on October 14, 1998, and the trial court conducted a full plea colloquy addressing the voluntariness of the plea. The next day trial counsel, Arthur Haft, advised the court that he noticed a drastic change in Barnhill’s behavior and questioned Barn-hill’s competency to proceed when Barnhill told them he wanted the death penalty. Haft informed the court Barnhill wore a suit to court every day except this day and he noticed the change before the plea was entered which may have resulted in the plea being an emotional decision. The trial court inquired of Barnhill on his choice to plead and request for the death penalty. Barnhill indicated he was able to understand the proceeding, he was sound of mind and able to act in his own interest.

Second chair trial counsel, Timothy Cau-dill, requested that the doctors evaluate Barnhill to determine if he was competent at the time he entered the plea. The trial court inquired of counsel if he felt Barnhill was competent at the time of plea to which Caudill responded, “Yes sir, I did.” The request was denied. The guilt-phase jury was released and the trial court ordered two experts • to examine Barnhill. Dr. Danziger, one of the court-ordered experts, submitted a report that competency was no longer an issue and the court declared Barnhill competent. Subsequently, a jury was selected for a penalty phase.

An ineffective assistance of counsel claim involving a guilty plea is determined by the same deficient performance prong as Strickland while the second prong involves the defendant demonstrating “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor v. State, 874 So.2d 1176, 1179 (Fla.2004) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). This Court has found strategic decisions do not constitute ineffective assistance of counsel if alternative courses of action have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. See Robinson v. State, 913 So.2d 514, 524 (Fla.2005); Brown v. State, 894 So.2d 137, 147 (Fla.2004).

The record reflects counsel was not deficient by failing to file a motion to withdraw the guilty plea. Both trial attorneys testified at the evidentiary hearing on this issue. When counsel noticed Barnhill’s changed mental state, they immediately advised the court and medical assistance was provided. Haft testified on direct and cross-examination that Barnhill never indicated to him that he wanted to withdraw the plea. Haft testified that Caudill’s notes reflect that Caudill may have spoken to Barnhill about withdrawing the plea. However, Haft could not remember Barnhill wanting to withdraw his plea. Haft testified that there were discussions regarding withdrawing the plea and whether or not withdrawal would be viewed as “jerking the court around.” Haft said the decision was made not to withdraw the plea but to use it as a mitigating factor.

Caudill testified that after viewing his notes it was apparent that Barnhill initially wanted to withdraw the plea. However, when he spoke with Barnhill about the ramifications of doing so, Barnhill indicated he understood it was not the best thing for him to do. Caudill also testified on cross-examination that he did not recall any further discussion on the issue after the meeting where the decision was made not to withdraw the plea. Both attorneys testified that after consultation with the defendant, a strategic decision was made not to withdraw the plea.

In addition, Dr. Fisher and Dr. Danziger testified at the evidentiary hearing regarding Barnhill’s mental state at the time of and after the plea. Dr. Fisher testified that Barnhill suffered a brief reactive psychosis as a response to specific stressors. Specifically, Dr. Fisher testified and agreed with Dr. Danziger’s report that Barnhill’s reaction was due to the impact of the guilty plea in this case. Dr. Fisher also testified that Barnhill suffered from prior depression brought on by the events in his life prior to his arrest. Dr. Danziger testified that he saw Barnhill for the first time three days after entry of the plea. He testified Barnhill was alert, fully oriented, and his mood was good; he diagnosed him with a brief reactive psychosis which was being resolved. Dr. Danziger also said that at the time of the plea, Barnhill was not suffering from a psychotic disorder but the psychotic disorder developed after the plea.

The trial court found that no formal finding of incompetency was made and that ultimately Barnhill had been found to suffer from a “brief reactive psychosis,” a temporary psychotic episode triggered by extreme stress. Based on the experts’ testimony and that of counsel, the trial court further found that Barnhill was acting normal on the day of the plea and there was no reasonable belief that he was incompetent at the time that he entered the plea. Barnhill has failed to show any deficient performance on counsel’s part. Barnhill discussed the issue with his attorney, and a reasonable strategic decision was made to forego withdrawing the plea. There is competent, substantial evidence supporting the trial court’s finding that counsel was not deficient.

Because deficient performance has not been demonstrated, we need not examine the prejudice prong of Strickland. Ineffective assistance of counsel has not been demonstrated, and the trial court properly denied relief on this issue.

Motion to Disqualify

Barnhill argues counsel rendered ineffective assistance by filing and arguing a legally insufficient motion to disqualify the trial' judge. Barnhill asserts that this Court’s ruling on direct appeal finding the motion legally insufficient, in essence, found trial counsel ineffective as a matter of law. He further asserts that counsel’s verbal renewal of the motion at the start of the penalty phase instead of a current, written, and more legally sufficient motion and affidavit was further evidence of ineffective assistance. Barnhill alleged in the motion to disqualify that he had a well grounded fear that the judge would not be fair and impartial because of the judge’s finding that Barnhill was untruthful when he testified that he was living with his girlfriend. The motion to disqualify the trial judge was denied by the trial court and raised as an issue on direct appeal. See Barnhill, 834 So.2d at 842-43. This Court affirmed the trial court’s ruling that the motion was technically insufficient because the supporting affidavit made by Barnhill did not state the specific facts which led him to believe he would not receive a fair trial.

Barnhill has failed to show that counsel’s performance in filing the motion to disqualify, which was ultimately found to be legally insufficient, was ineffective assistance of counsel. As argued extensively on direct appeal, even if counsel had filed an amended legally sufficient motion, the allegations contained within did not warrant disqualification. The statement attributable to the judge would not have led a reasonable person to believe he or she would not receive a fair trial. A mere “subjective fear of bias will not be legally sufficient; rather, the fear must be objectively reasonable.” Arbelaez v. State, 898 So.2d 25, 41 (Fla.2005). The statement was made in the context of ruling on the motion to suppress and thus the motion to disqualify was legally insufficient in that respect. Therefore, counsel was not deficient because the motion was based on that allegation. Accordingly, Barnhill has failed to show ineffective assistance of counsel.

Voir Dire

Barnhill also argues trial counsel’s questioning during voir dire was ineffective, deficient, unreasonable, and constituted ineffective assistance of counsel. Barnhill argues Haft’s questioning was rambling, disjointed and nonsensical, and confused the jury. Furthermore, he contends that Haft skipped over and abandoned the opportunity and duty to question jurors Robinson and Lowe and that this failure undermined confidence in the outcome of the penalty phase. Conversely, the State argues Barnhill failed to allege prejudice or any bias by the jurors who actually served.

Barnhill’s claim that counsel ineffectively handled voir dire because his questioning was rambling, disjointed, and confused the jury was raised on direct appeal in two claims. See Barnhill, 834 So.2d at 843-47. On direct appeal, this Court found there was competent evidence in the record to support the trial court’s decision to excuse at least two jurors for cause, and we denied relief on the claims. Id. at 846. Additionally, this Court addressed Barnhill’s issue from voir dire that the trial court unreasonably limited defense counsel’s voir dire and unreasonably limited and restricted trial counsel by repeatedly interrupting, chastising, and threatening to replace counsel. This Court found that the trial court did not unreasonably limit counsel’s voir dire but simply tried to help defense counsel focus more precisely on the questions he was asking. Additionally, this Court found that the trial court’s interruptions were outside the hearing of the jury and were intended to make counsel’s questions clearer.

Haft testified at. the evidentiary hearing that he did not remember the specifics of the discussion during the trial. court’s interruptions. However, he remembered the side bar because the trial court believed his questions were not helpful. Haft further testified that he thought there was a reason but he could not exactly remember his thought process in terms of why he did not return to juror Robinson. As to juror Lowe, Haft said that he did not recall the reason he did not question the juror after the trial court’s query regarding predispositions about the death penalty.

While in hindsight counsel reflects his questioning could have been done differently, this Court found and the record supports the finding that counsel was competent in his questioning during voir dire. Barnhill asserts conelusory allegations that the outcome of the trial would have been different if counsel’s questioning had been done differently. Barnhill has not alleged, much less demonstrated, that any of the jurors who sat were prejudiced as a result of any action or inaction by counsel. This Court has repeatedly held “conclusory allegations are insufficient to warrant relief’ on an ineffective assistance of counsel claim. Wright v. State, 857 So.2d 861, 877 (Fla.2003). Moreover, a review of the record reveals venirepersons Robinson and Lowe were never selected for the jury or even as alternates. Barnhill has failed to allege or demonstrate prejudice based on counsel’s voir dire questioning; therefore, he has failed to demonstrate that counsel was ineffective.

Mitigating Evidence

Barnhill further argues trial counsel rendered ineffective assistance through inadequate preparation, investigation, and presentation of mitigating evidence. He contends trial counsel failed to interview Barnhill’s father and present him as a penalty-phase witness. Additionally, Barnhill asserts trial counsel failed to visit certain family members in New York and limited Barnhill’s social history to the mother’s component of the family history. The State contends trial counsel had legitimate, strategic reasons for not calling certain witnesses, in particular the father, and that the evidence presented at the eviden-tiary hearing was cumulative to the mitigation presented at the penalty phase.

During the penalty phase, trial counsel presented thirteen mitigation witnesses; including Barnhill’s paternal grandmother, aunts, cousins, school friends, Dr. Eisenstein, and Dr. Gutman. The lay witnesses essentially testified concerning the defendant’s childhood of abuse, neglect, and abandonment, difficulty in school, and his limited contact with his father. See Barnhill, 834 So.2d at 841. Dr. Eisenstein testified that Barnhill suffers from ADHD, is learning disabled, and may have frontal lobe impairment. He also said that Barnhill was not antisocial. Dr. Gutman testified at the penalty phase concerning psychological testing he performed on the defendant. While he disagreed with Dr. Eisenstein’s finding of a frontal lobe impairment, he did agree that the testing results from the MMPI left open to interpretation whether such an impairment existed. Based on the testimony of these witnesses, the trial court considered and found a number of mitigating circumstances, including, but not limited to, the facts that Barnhill suffers from a learning disability, has frontal lobe impairment, suffers from psychiatric disorders, had a difficult childhood, and grew up in an environment where the mother favored the daughters. The court also considered and weighed the facts that Barnhill was neglected by his mother, was a poor student, suffered shock and embarrassment when his father was arrested and given a lengthy prison sentence, and was raised essentially by his grandparents.

Trial counsel testified at the evidentiary hearing that he spoke with Barnhill about his family and made tactical decisions concerning which family members would make good mitigating witnesses. Haft also testified that he and Caudill did not have any confidence in what the mother might say; they had a difficult time contacting her at first, and it seemed Barnhill’s sisters, who were hostile to Barnhill, ran that household. Counsel testified that both Barnhill and other people informed them about the sisters’ hostility; Barnhill did not want them to contact his sisters.

Counsel further testified that they discussed with Barnhill his father, who was in prison. The discussion focused on whether or not the father should be used as a witness during the penalty phase. Counsel testified they went through the father’s court files to see what crimes he was charged with and sentenced for before making a decision. In the final analysis, it was decided that there were other family members to present whose reputation and veracity would not be an issue. They had available as witnesses the mother’s sister, maternal grandmother, a maternal aunt, maternal uncle, and paternal grandparents. Thus, counsel made a strategic decision that testimony from Barnhill’s father would not advance their theory of the case.

Barnhill’s father testified at the eviden-tiary hearing that he only learned about his son’s charges through communication with his mother, Barnhill’s grandmother, and through the prison’s law library. He said he was never contacted by defense counsel’s office during his son’s trial, and he would have been willing to testify on his son’s' behalf. Barnhill’s father testified concerning his times in prison; his treatment of women, including his son’s mother; and his belief that he was not the defendant’s father. He also testified he was physically abusive to Barnhill.

Andrew Gruler, a clinical social worker, testified at the evidentiary hearing. He constructed a genogram, family tree, for Barnhill which showed no contact between Barnhill and his sisters and, in fact, revealed broken lines between Barnhill and his father, mother, and sisters. Gruler testified he gathered various accounts from several of Barnhill’s family members which revealed he had a hard life. Gru-ler’s testimony corroborated the testimony of family members presented at the penalty phase and in particular corroborated the testimony from Deloris Barnhill, who testified at both the penalty phase and the 3.851 evidentiary hearing.

Dr. Fisher, a clinical forensic psychologist, testified at the evidentiary hearing concerning the mitigation presented at the penalty phase. Dr. Fisher indicated that he reviewed the testing done by Dr. Rieb-same and Dr. McClaren. Dr. Riebsame examined Barnhill during the original proceedings but did not testify at the penalty phase. Dr. McClaren was the State’s expert witness at the penalty phase. Dr. Fisher testified that Barnhill suffered from depression as a result of all the stressors in his life but did not believe he was psychotic. Essentially, Dr. Fisher testified there were numerous mitigators in Barn-hill’s life' presented at the evidentiary hearing that were consistent with a conduct disorder, a prerequisite to a diagnosis of antisocial personality disorder.

Dr. McClaren, a clinical and forensic psychologist, and Dr. Danziger, a psychiatrist, testified for the State at the eviden-tiary hearing. Dr. McClaren testified that Barnhill suffered from a depressive disorder and he also has an antisocial disorder. He indicated the diagnosis is evident from Barnhill’s life history of setting fires, fighting, and stealing. This diagnosis is consistent with Dr. Fisher’s diagnosis as well as Dr. Riebsame’s.

Although additional witnesses were presented at the evidentiary hearing, the record supports the court’s findings that counsel adequately investigated and prepared mitigating evidence for the penalty phase. During the penalty phase, the defense presented a number of witnesses who testified about Barnhill’s social history. While counsel chose not to call the mother and sisters as witnesses after investigation and discussion with the defendant, the facts of his childhood were nonetheless presented through other family members and friends. Nothing of a significant difference was presented at the evi-dentiary hearing; the testimony that was presented is cumulative to and corroborates the evidence that was presented at the penalty phase. Even with the mental health testimony, the testimony at the evi-dentiary hearing was consistent in finding that Barnhill suffers from antisocial personality disorder. However, counsel’s decision to use Dr. Eisenstein and not Dr. Riebsame at the penalty phase resulted in the presentation of a mental health picture by the defense that did not include testimony concerning antisocial personality disorder.

The fact that there were other witnesses available who could have testified concerning Barnhill’s upbringing and his mental health does not demonstrate that counsel was ineffective in choosing the theory and strategy that was presented at the penalty phase. Barnhill simply has not demonstrated a substantial deficiency on the part of counsel that has undermined our confidence in the penalty phase proceeding. We, therefore, affirm the trial court’s denial of relief on this issue.

Closing Arguments

Barnhill contends trial counsel was ineffective because his closing argument indicated counsel’s own doubts or distaste for the case, and this was prejudicial and deprived Barnhill of a fair trial. The State argues trial counsel’s closing argument was not deficient and Barnhill’s assertions to the contrary are based on taking the argument out of context. Additionally, the State contends Barnhill cannot show prejudice from the closing argument because the four aggravating circumstances proven in this case would result in a sentence of death even with a perfect closing argument.

Defense counsel Haft testified at the evidentiary hearing that he had no distaste for Barnhill, and that there was nothing in this crime that would affect his allegiance to his client. Haft said that his statement that the jury might feel anger after seeing such a tragic death was made to establish some credibility with the jury. He said that acknowledgement of the gravity of first-degree murder is one way of establishing some credibility. He did not want the twelve people who were casting votes for life or death of the perpetrator to feel his arguments in the penalty phase were devaluing the gravity of the murder. Haft further testified he was urging the jury to keep their emotions out of the deliberations, and decide the case by giving proper weight to the various aggravating and mitigating circumstances. Haft testified he was trying his best to get them to recommend life.

In denying relief on this claim, the court found the excerpts cited from counsel’s arguments were taken out of context and must be read with the surrounding arguments, that is, the argument must be read as a whole. We agree and affirm the trial court’s determination that trial counsel adequately explained his strategy for arguing the case in the manner that he did. That strategy was a reasonable one given the fact that this was a brutal murder and robbery of an eighty-four-year-old man in his home.

Barnhill has not demonstrated that counsel’s performance was deficient, and therefore, we need not determine the prejudice prong. See Strickland.

Interviewing Jurors

Barnhill argues that rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar and Florida Rule of Criminal Procedure 3.575 violate his constitutional right of equal protection and deny him adequate assistance of counsel in pursuing his post-conviction remedies. The State argues this issue is procedurally barred because it was not raised on direct appeal. The State also argues that Barnhill fails to identify a specific incident of juror misconduct. We deny relief on this issue consistent with our prior decisions which have found that rule 4-3.5(d)(4) and rule 3.575, which collectively restrict an attorney’s ability to interview jurors after trial, do not violate the defendant’s constitutional rights. See Power v. State, 886 So.2d 952, 957 (Fla.2004); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002); Johnson v. State, 804 So.2d 1218, 1225 (Fla.2001).

Execution by Lethal Injection

Barnhill argues lethal injection is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. This Court has upheld the constitutionality of lethal injection in Florida after a full evidentiary hearing in Sims v. State, 754 So.2d 657 (Fla.2000). Subsequently, the Court rejected similar challenges to both the lethal injection statute and the execution protocol. Diaz v. State, 945 So.2d 1136, 1144-45 (Fla.), cert. denied, — U.S. -, 127 S.Ct. 850, 166 L.Ed.2d 679 (2006); Rolling v. State, 944 So.2d 176, 179 (Fla.), cert. denied, — U.S. -, 127 S.Ct. 466, 166 L.Ed.2d 332 (2006); Rutherford v. State, 926 So.2d 1100, 1113-14 (Fla.), cert. denied, 546 U.S. 1160, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006); Hill v. State, 921 So.2d 579, 582-83 (Fla.), cert. denied, 546 U.S. 1219, 126 S.Ct. 1441, 164 L.Ed.2d 141 (2006).

However, because there is ongoing litigation concerning Florida’s lethal injection protocol as a result of the execution of Angel Diaz, we deny Barnhill relief on this claim without prejudice to pursue any available remedies he may have in the appropriate trial court.

Jury Instructions

Barnhill argues the asserted jury instructions were in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments by diminishing the jury’s responsibility, shifting the burden of proof to Barnhill, and were premised on unconstitutionally vague and overbroad aggrava-tors. Additionally, Barnhill argues counsel rendered ineffective assistance by not litigating and preserving these issues. We deny relief because this Court has repeatedly held the standard jury instructions fully advise the jury of the importance of its role, correctly state the law, and do not denigrate the role of the jury. See Miller v. State, 926 So.2d 1243, 1257 (Fla.2006) (rejecting the claim that the jury instructions dilute the jury’s sense of responsibility); Rodriguez v. State, 919 So.2d 1252, 1280 (Fla.2005) (rejecting the claim that the standard jury instructions impermissibly shift the burden to the defendant to prove that death is not the appropriate sentence); Card v. State, 803 So.2d 613, 628 (Fla.2001) (finding the decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), not applicable in Florida); Brown v. State, 721 So.2d 274, 283 (Fla.1998) (finding the standard jury instructions fully advise the jury of the importance of its role, correctly state the law, and do not denigrate the role of the jury); San Martin v. State, 705 So.2d 1337, 1350 n. 5 (Fla.1997) (con-eluding that the weighing provisions of Florida’s death penalty statute and the accompanying jury instructions do not unconstitutionally shift the burden of proof).

Cumulative Errors

Barnhill argues the repeated instances of ineffective assistance of counsel, flawed jury instructions, and an unconstitutional process cumulatively deprived him of a fundamentally fair trial. Because all of the allegations of individual legal error are without merit, a cumulative error argument based upon these errors must also fail. The instances of ineffective assistance of counsel, flawed jury instructions, and unconstitutional process as alleged by Barnhill are without merit. See Griffin v. State, 866 So.2d 1, 22 (Fla.2003) (holding that a cumulative error claim must fail where individual claims of error alleged are either procedurally barred or without merit).

Habeas Corpus Claim

Incompetency at Time of Execution

Barnhill concedes that his claim involving competency to be executed is not ripe for review as he has not yet been found incompetent and a death warrant has not been signed. He contends that he is only raising this issue for preservation purposes. This Court has repeatedly found that no relief is warranted on similar claims. See State v. Coney, 845 So.2d 120, 137 n. 19 (Fla.2003) (rejecting the defendant’s claim that he is insane to be executed where he acknowledged that claim was not yet ripe and was being raised only for preservation purposes); Jones v. State, 845 So.2d 55, 74 (Fla.2003) (finding claim that defendant may be insane to be executed “not ripe for review” where defendant was not yet found incompetent and death warrant not yet been signed; noting that defendant made claim “simply to preserve it for review in the federal court system”); Hall v. Moore, 792 So.2d 447, 450 (Fla.2001) (stating that it is premature for a death-sentenced individual to present a claim of incompetency or insanity, with regard to his execution, if a death warrant has not been signed).

Thus, Barnhill’s claim on this issue is denied.

CONCLUSION

For all the foregoing reasons, we affirm the trial court’s denial of Barnhill’s motion for postconviction relief and deny the petition for writ of habeas corpus.

It is so ordered.

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

      . The facts and evidence are sufficient to demonstrate first-degree murder and Barn-hills participation as a principal.

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

      . Trial counsel made a strategic decision not to use Dr. Riebsame at the penalty phase because he diagnosed Barnhill with antisocial disorder, which was contrary to the defense's mitigation theory of trying to show Barnhill was abused and neglected but had redeeming qualities. Moreover, during an interview with Dr. Riebsame, Barnhill revealed a different version of the murder that made him seem more culpable.

      . Because we are denying relief on the merits of this claim, counsel cannot be ineffective for failing to object to jury instructions which this Court has upheld against the constitutional challenges being asserted here. See, e.g., Thomas v. State, 838 So.2d 535, 541 (Fla.2003).

      . Barnhill litigated the issue concerning the jury instructions on the aggravating circumstances on his direct appeal and cannot reliti-gate the issue on postconviction. See Barnhill, 834 So.2d at 849-51.

      . Barnhill also makes an argument concerning the constitutionality of Florida's capital sentencing scheme relying on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Because we have consistently denied relief on such claims, we do not address the issue any further.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Marilyn TAYLOR and Robert Taylor, Appellants, v. Steven RICHARDS and Donna Richards, Appellees.
    No. 4D06-1173.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Michael T. Calvit, Yero Beach, for appellants.
    Ira C. Hatch of Hatch & Doty, P.A., Vero Beach, for appellees.
   On Motion for Rehearing

POLEN, J.

We grant in part appellees’ motion for rehearing and substitute the following for our slip opinion of February 28, 2007.

Appellants Robert and Marilyn Taylor (“the Taylors”) appeal a final judgment for appellees Stephen and Donna Richards (“the Richards”), wherein the trial court granted the Richards’ claim for specific performance, requiring the Taylors to convey certain real estate. We reverse and remand with instructions to enter judgment in favor of the Taylors on the Richards’ specific performance claim, and we direct the lower court to conduct further hearings on the issue of damages.

The Richards, as purchasers, entered into a written real estate contract with the Taylors for the sale and purchase of a condominium unit in Vero Beach, Florida. Just before closing, two hurricanes struck the area, causing damage to the condominium. The Richards then notified the Tay-lors that their lender, Bank of America, would not allow closing until all of the hurricane damage had been repaired. The Taylors advised that Bank of America could inspect the damage to the condominium, offered 3% of the assessed value of the property pursuant to Standard 0 of the contract, and rescheduled the closing for October 22, 2004.

On October 15, 2004, Donna Richards and Bank of America’s representative inspected the damage to the condominium. They observed that the Florida room roof and awning had been torn off and the windows had blown out. They were also made aware of a problem with the air conditioner. Later that day, the Richards notified the Taylors by letter that they intended to settle and close on the property, but that they first needed information to determine how to exercise their rights under Standard 0 of the contract. However, the Taylors never supplied the Richards with the requested information. .

Even before they inspected the property damage, the Richards, concerned that the repairs might not be timely completed as required by Bank of America, made alternative arrangements for financing the purchase of the condominium. They contacted a long-time friend, Ken Becker (“Becker”), and requested a mortgage loan from him so that they would have sufficient funds to close on the purchase of the condominium. Having the financial wherewithal, Becker agreed to provide the Richards with the requested loan. The Richards’ concerns about their financing from Bank of America proved justified. On October 20, 2004, Bank of America issued them a letter stating that it would not go forward with the loan due to the hurricane damage to the condominium that had not been repaired.

On October 22, 2004, the Taylors unilaterally cancelled the real estate contract and directed the escrow agent to return all of the Richards’ deposits. The Richards proceeded to file a complaint against the Taylors seeking specific performance of the contract, as well as damages. At the conclusion of a bench trial, the trial court found the Richards ready, willing and able to purchase the condominium, and determined that the Taylors failed to comply with Standard O of the contract. Based on those findings, the court concluded that the Richards were entitled to specific performance. The Taylors filed a notice of appeal of the final judgment, and the trial court entered a subsequent order staying effect of its judgment until the conclusion of this appeal.

On appeal, the Taylors argue that the trial court erred in finding the Richards ready, willing and able to pay the contract sum, and thus reversibly erred in granting the Richards specific performance of the contract. We agree. ■ “When a cause is tried without a jury, the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.” Universal Bevs. Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005) (citations omitted). “[I]n order for a purchaser to obtain specific performance of a real estate sales contract, they must allege and prove that the vendee has either paid the balance, tendered the balance, [or] was ready, willing, and able to pay such balance or has been excused from such performance.” Leverette v. Cochran, 876 So.2d 2, 3 (Fla. 4th DCA 2004). To prove that a prospective purchaser of property is ready, willing and able to buy, the purchaser must show that he is able to command the necessary money to close the deal on reasonable notice or within the time stipulated, by the parties. Perper v. Edell, 160 Fla. 477, 485, 35 So.2d 387 (1948); see also Sticht v. Shull, 543 So.2d 395, 396 (Fla. 4th DCA 1989) (citations omitted) (stating that spe cific performance may be required of a seller of real property only where a .prospective purchaser can command the requisite resources to close upon the terms and within the time stated by the seller); Hollywood Mall, Inc. v. Capozzi 545 So.2d 918 (Fla. 4th DCA 1989) (stating that it is the plaintiffs’ burden of proof to show they are ready, willing and able to perform the contract in order to establish a prima facie case for specific performance) (citing Glare v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967)).

In Capozzi, this court applied the following test for determining whether a purchaser is ready, willing and able to buy:

Generally speaking, a purchaser is financially ready and able to buy: (1) If he has the needed cash in hand, or (2) if he is personally possessed of assets — which in part may consist of the property to be purchased — and a credit rating which enable him with reasonable certainty to command the requisite funds at the required time, [citations omitted] or (3) if he has definitely arranged to raise the necessary money — or as much thereof as he is unable to supply personally — by obtaining a binding commitment for a loan to him for that purpose by a financially able third party, irrespective of whether such loan be secured in part by the property to be purchased.
Although no precise line of demarcation between the application of the second and third divisions of the above rule can be laid down for all cases, it is clear-in the light of the purpose of the rule-that where the purchaser relies primarily, not upon his own personal assets, but upon the proceeds of a contemplated loan or loans to be made to him by a third party, he is financially able to buy only if he has a definite and binding commitment from such third-party loaner. Even though the third party is financially able, his promise is of no avail unless made for an adequate consideration. A purchaser who personally has little, if any, cash or other assets must establish that the financial crutches to be loaned him by others are both legally and financially dependable.

Capozzi 545 So.2d at 920-21 (quoting Shell Oil Co. v. Kapler, 235 Minn. 292, 50 N.W.2d 707 (1951)). The Richards contend that they satisfied the third prong (third party lender), as they requested a mortgage loan from Becker, Becker agreed to provide them with the loan, and Becker had the financial ability to do so. However, there is no record evidence that they obtained a binding commitment from Becker, i.e., that Becker made anything but a gratuitous promise, as there is no proof of consideration or other indications of a legally binding commitment. See id. at 920 (stating that a buyer “cannot be considered to be ready, willing and able to perform when its only ability is derived from funds not within its control and subject to the gratuitous payment by another”); see also Sticht, 543 So.2d at 397 (finding that purchaser failed to demonstrate ability to command the funds necessary to make purchase where his alleged business partner, who was to provide necessary financing for the purchase, was not legally obligated to perform under the contract). Therefore, although Becker testified that he was a long-time friend of the Richards and told the Richards that he would be capable and willing to lend them the money to close on the condominium, we find that the trial court erred in granting the Richards specific performance based on their alleged ability to obtain financing from him.

The Richards also suggest that they satisfied the second prong of the Ca-pozzi test (personal possession of assets) by presenting evidence of their ability to obtain the necessary funds through a home equity line of credit on another property. Donna Richards testified that she and her husband could have obtained a home equity loan on another property sufficient to support the purchase of the condominium, but chose not to, opting instead to rely on a promise from Becker. However, even considering the financial ability of the Richards to close this transaction, such ability is not sufficiently present in the record.

A purchaser may provide sufficient evidence that he is ready, willing and able to perform a contract when he provides proof that “he was personally possessed of assets and a credit rating which would enable him with reasonable certainty to command the requisite funds to close.” Capozzi, 545 So.2d at 920. Evidence of the financial responsibility and business standing of a proposed purchaser is also admissible to prove financial ability, Perper, 160 Fla. at 485, 35 So.2d 387, as is a showing that the purchaser is “a person of substance.” Mogul v. McClaskey, 309 So.2d 254, 256 (Fla. 4th DCA 1975) (quoting Sharp v. Long, 283 So.2d 567 (Fla. 4th DCA 1973)). In the instant case, there is no evidence in the record, such as proof of ownership of the other property, which would support Donna Richards’ claim, nor is there evidence of the Richards’ credit rating, financial responsibility, business standing or reputation for substance.

In Capozzi, this court said that even though it was reluctant to reverse a judgment of a trial court on an issue of fact, it was its duty to do so when there was no evidence in the record which would support that judgment. Capozzi, 545 So.2d at 921. In the case sub judice, there is testimony that the Richards were financially able to buy the condominium, e.g., Donna Richards’ testimony regarding an available home equity line of credit sufficient to enable the purchase of the condominium. Nevertheless, there is no evidence to support this testimony. Likewise, there is evidence that the Richards obtained a promise from a non-institutional third party lender, Becker, to obtain the necessary funds, yet there is no showing that the promise constituted a legally binding commitment on Becker’s part. Based on the insufficiency of this evidence, we conclude the trial court erred in concluding that the Richards were ready, willing and able to perform their financial obligations under the contract.

Based on the foregoing, we reverse and remand with instructions to the trial court to enter judgment in favor of the Taylors on the Richards’ specific performance claim. As to all other issues raised on appeal, we affirm. We also instruct the trial court to conduct further hearings on the issue of damages. Lastly, we note that this decision may be limited by the peculiar circumstances of this case — two hurricanes that hit the area in September 2004, causing significant property damage throughout the area and complicating real estate transactions.

Reversed and Remanded with Directions.

GUNTHER and HAZOURI, JJ., concur.

      . Standard O — Risk of Loss — is the operative provision in the contract for the options available to the parties as a result of hurricane damage to the condominium. It states as follows:
      If the property is damaged by fire or other casualty before closing and costs of restoration does not exceed 3% of the assessed valuation of the property so damaged, cost of restoration shall be an obligation of seller and closing shall proceed pursuant to the terms of this contract with restoration costs escrowed at closing. If the cost of restoration exceeds 3% of the assessed valuation of the property so damaged, buyer shall either take the property as is, together with either the 3% or any insurance proceeds payable by virtue of such loss or damage, or receive a refund of deposits), thereby releasing buyer and seller from all further obligations under this contract. (Emphasis added).

      . The requested information included repair estimates establishing the extent of damage to the condominium and the amount of insur-anee proceeds payable or that had been paid by virtue of the loss or damage sustained to the condominium.


author: VILLANTI, Judge.

text:
    Peter P. CLAPS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5279.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.
   VILLANTI, Judge.

We affirm the trial court’s summary denial of the claims in Peter P. Claps’ motion for postconviction relief, but we write to make explicit what has long been implicit in Florida regarding double jeopardy: a defendant may be charged and tried for both an offense and a necessarily lesser-included offense even though the defendant cannot ultimately be adjudicated and sentenced for both offenses due to the protections afforded by the prohibition against double jeopardy.

Following a jury trial, on March 22, 2002, Claps was sentenced for DUI manslaughter, leaving the scene of an accident involving injury and/or death, driving under the influence of alcoholic beverages or controlled substances with injury, and two counts of driving under the influence of alcoholic beverages or controlled substances with property damage. On double jeopardy grounds, the court neither adjudicated nor sentenced Claps on three other charges. The court sentenced him to consecutive fifteen-year prison terms for the offenses of DUI manslaughter and leaving the scene and to time served for the remaining offenses. This court affirmed the judgment and sentences on direct appeal. See Claps v. State, 860 So.2d 416 (Fla. 2d DCA 2003) (table decision).

In January 2005, Claps filed a timely motion pursuant to Florida Rule of Criminal Procedure 3.850 seeking to vacate the judgment and sentences, asserting three grounds for relief based on ineffective assistance of counsel at various stages of the trial. The postconviction court ultimately granted relief and ordered a resentencing hearing on one claim, which led to a reduction in prison time on one count, but summarily denied the remaining claims. Following resentencing, Claps filed this appeal.

In his petition, Claps alleges that trial counsel was ineffective for failing to move prior to trial for dismissal on double jeopardy grounds of some of the charges against him and that this failure resulted in prejudice to Claps. In particular, he asserts that counsel should have moved for dismissal of the charges resulting in guilty verdicts on the counts for which he was neither adjudicated nor sentenced, arguing that merely presenting those charges to the jury violated his right against double jeopardy and prejudiced his defense.

“The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be ‘subject for the same of-fence to be twice put in jeopardy of life or limb.’” Jones v. Thomas, 491 U.S. 376, 380, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989). The Florida Constitution has a similar provision:

Modeled after the double jeopardy provision of the Fifth Amendment to the United States Constitution, article I, section 9 of the Florida Constitution states that “no person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. This Court has explained that “where multiple punishments are imposed at a single trial, ‘the role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act.’ ” Hayes v. State, 803 So.2d 695, 699 (Fla.2001) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)).

Kelso v. State, 961 So.2d 277, 279 (Fla.2007). The concept of double jeopardy affords three basic protections: “against a second prosecution for the same offense following an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments for the same offense.” Rodriguez v. State, 875 So.2d 642, 644 (Fla. 2d DCA 2004) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). Its emphasis is thus on adjudications of guilt and sentences, not on jury verdicts. While the latter may be a condition precedent to an adjudication of guilt and sentence, by itself a verdict imposes no punishment.

Claps argues, however, that counsel was ineffective for not moving to prevent the jury from hearing all of the charges which the State felt it could prove, when both the State and the court knew he could not lawfully be adjudicated and sentenced for some of the charges if found guilty on others. Generally, when asserting a claim of ineffective assistance of counsel, a defendant must prove that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Claps’ case, the postconviction court concluded that while the rule against conviction for multiple counts arising from a single act is clear, no law prevents charging a defendant with multiple counts. In support of that conclusion, the court cited a successful State appeal of just the kind of dismissal of charges that Claps now argues his counsel should have requested. See State v. Lewek, 656 So.2d 268, 268 (Fla. 4th DCA 1995) (holding that “[djespite this clear rule saying that a defendant cannot be convicted of both manslaughter and vehicular homicide for a single death, there is no such rule saying that he cannot be charged with both crimes”). Thus, Claps’ argument fails because counsel cannot be found ineffective for failing to pursue a course of action that counsel would — or should — have known was futile. See Teffeteller v. Dugger, 734 So.2d 1009, 1020 (Fla.1999).

In Lewek, the appellate court reversed a trial court’s dismissal of a vehicular homicide charge as a lesser-included offense of manslaughter. Id. Thus,- even if Claps’ trial counsel had succeeded in having the lesser charges dismissed prior to trial, that result would have been considered reversible error. Therefore, counsel’s failure to move for dismissal was neither deficient nor prejudicial. “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. It can hardly be considered unreasonable for counsel not to request a disposition that would inevitably be considered reversible error if granted.

Even so, Claps argues that this court should extend double jeopardy protections to an earlier stage in the proceedings, such as the information or jury selection phase. His argument, though, fails for the reasoning already noted. Double jeopardy concerns require only that the trial judge filter out multiple punishments at the end of the trial, not at the beginning. Although Claps argues that he suffered prejudice when the jury was faced with considering multiple charges, “[t]he purpose [of double jeopardy] is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments.” See Jones, 491 U.S. at 381, 109 S.Ct. 2522. It is the legislature’s prerogative to define the elements of a statutory crime, Burnette v. State, 901 So.2d 925, 927 (Fla. 2d DCA 2005), and proof of essential elements of crimes, such as those applicable to Claps, is achievable in more than one manner, see, e.g., State v. Tinsley, 683 So.2d 1089 (Fla. 5th DCA 1996) (holding that the elements of second-degree murder can be satisfied in a variety of ways other than by use of a weapon). The State’s ability to choose from a menu of options to pursue a criminal conviction in no way conflicts with double jeopardy considerations.

Claps, however, would have us usurp the State’s discretion to make strategic decisions about charging alleged criminal activity. Further, he would have us usurp the jury’s role in deciding facts and determining guilt or innocence. This would be an inappropriate judicial function, infringing on the executive domain of state attorneys to make strategic and tactical decisions within the boundaries of their policies and duty to follow the law. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (noting the discretion afforded prosecutors — “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute” — to decide whether to prosecute and which charges to bring); see also Wilcott v. State, 509 So.2d 261, 265 (Fla.1987) (Shaw, J., dissenting) (asserting that the State is entitled to charge “so-called permissive lesser included offenses as separate offenses” if it so chooses and commenting that “[i]t is not the prerogative of the courts to substitute their judgment for that of the prosecutor on what charges should be brought”).

The Double Jeopardy Clauses of the United States and Florida Constitutions provide a defendant with a shield from punishment; conversely, they do not provide a defendant with a sword to wield against the State’s executive decisions. See Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (observing that a defendant “should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution” on remaining charges after being found guilty of other related offenses). Allowing the jury to exercise its fact-finding function to decide which crime — or crimes — may have been committed, even when based on the same facts, is a classic and appropriate function of the jury trial system, just as a court’s determination as a matter of law which guilty verdicts will be precluded from adjudication and sentencing on double jeopardy grounds is a similarly appropriate function of the judiciary.

Affirmed.

NORTHCUTT, C.J., and WHATLEY, JJ., Concur.


author: WEBSTER, J.

text:
    Annette BLANN, Former Wife, Appellant, v. Gregg L. BLANN, Former Husband, Appellee.
    No. 1D07-0100.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.
    Rehearing Denied Jan. 4, 2008.

      Charles E. Willmott of Charles E. Will-mott, P.A., Jacksonville, and Michael J. Korn, and Tonya H. Walker of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellee.
   WEBSTER, J.

The former wife seeks review of the trial court’s denial of her motion to enforce the consent final judgment of dissolution of marriage by ordering the former husband to indemnify her after he waived a portion of his military retirement pay so that he might receive veterans’ disability benefits. Because the former husband unilaterally reduced the amount of retirement pay awarded to the former wife in the consent final judgment, the former wife claims that she is entitled to an equivalent benefit as part of an action to enforce the consent final judgment. We agree. Accordingly, we reverse and remand for further proceedings.

In 2002, the trial court entered a consent final judgment of dissolution of marriage which was based on the parties’ mediated settlement agreement and provided that the parties waived the right to receive alimony, the former wife would receive 42.5 percent of the former husband’s military retirement pay upon his retirement, and jurisdiction would be reserved “to modify and enforce th[e] final judgment to the full extent permitted by law.” When the former husband retired in June 2006, he waived a portion of his military retirement pay in order to receive veterans’ disability benefits, effectively reducing the amount of retirement pay received by the former wife. In October 2006, the former wife filed a motion for enforcement which requested that the former husband be ordered to pay her the full amount of her vested interest in his military retirement pay. Although conceding that the result was inequitable, the trial court concluded that there was no authority allowing it to enforce the consent final judgment by ordering the former husband to indemnify the former wife after he waived a portion of his military retirement pay in order to receive veterans’ disability benefits. This appeal follows.

The United States Supreme Court has held that while states have authority under federal law to divide disposable retired or retainer pay, they do not have the power to treat as divisible property military retirement pay which has been waived to receive veterans’ disability benefits. Mansell v. Mansell, 490 U.S. 581, 589, 595, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). Even if the parties enter into a settlement agreement to divide veterans’ disability benefits, such an agreement is unenforceable because it is preempted by federal law. Abernethy v. Fishkin, 699 So.2d 235, 239 (Fla.1997). However, this does not prevent the enforcement of an indemnification provision which provides for alternative payments from non-disability sources to compensate for the reduction in military retirement benefits divided as part of the property settlement agreement. Id. at 240. Furthermore, even in the absence of an express indemnification provision, the trial court may order an equivalent benefit as part of an action to enforce a property settlement agreement if one spouse commits a voluntary act which defeats the intent of the parties. Padot v. Padot, 891 So.2d 1079, 1081-84 (Fla. 2d DCA 2004); Janovic v. Janovic, 814 So.2d 1096 (Fla. 1st DCA 2002). See also Longanecker v. Longanecker, 782 So.2d 406 (Fla. 2d DCA 2001).

The former husband correctly notes that neither the mediated settlement agreement nor the consent final judgment contains an indemnification provision or awards a specific dollar amount in retirement benefits. However, this is not fatal to the former wife’s enforcement action. In Janovic, this court held that the trial court could enforce a consent final judgment by ordering the former husband to indemnify the former wife after the former husband waived a portion of his military retirement pay in favor of veterans’ disability benefits even though the final judgment did not contain an indemnification provision or award a specific dollar amount in military retirement benefits. 814 So.2d at 1100-01. Rather, we explained that the key issue was whether the parties intended to maintain level monthly payments pursuant to their settlement agreement. Id. at 1101. We concluded that the retention of jurisdiction in the final judgment of dissolution of marriage, the waiver of alimony, and the award of a percentage of the former husband’s military retirement to the former wife constituted evidence of an intent to have the former wife receive a level periodic payment in return for not receiving alimony. Id. Similarly, the consent final judgment in this case includes a retention of jurisdiction, a waiver of alimony, and an award of a percentage of the former husband’s military retirement to the former wife which constitutes evidence of an intent to have the former wife receive a level periodic payment in return for not pursuing alimony.

In light of Janovic, the trial court erred in concluding that there was no authority to enforce the consent final judgment by ordering the former husband to indemnify the former wife after he waived a portion of his military retirement pay so that he might receive veterans’ disability benefits. Accordingly, we reverse the trial court’s order denying the former wife’s motion for enforcement and remand for further proceedings. On remand, the trial court should order the former husband to indemnify the former wife if it finds that he can do so from a source other'than his veterans’ disability benefits.

REVERSED and REMANDED with directions.

ALLEN and VAN NORTWICK, JJ„ concur.


author: LAWSON, J.

text:
    Denise BURCHFIELD and Robert Burchfield, Appellant, v. REALTY EXECUTIVES, et al., Appellee.
    No. 5D06-4416.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Scott E. Zimmer of Mancuso, Zimmer & Howell, P.A., Tampa, for Appellant.
    Timothy C. Schuler and Lynn A. Brauer of Law Office of Timothy C. Schuler, Seminole, for Appellee.
   LAWSON, J.

Denise and Robert Burchfield appeal the final summary judgment entered in favor of Realty Executives on the Burch-field’s claim for breach of fiduciary duty. We affirm.

This case presents two narrow issues of statutory construction involving section 475.278, Florida Statutes. Enacted in 1997, this statute creates a presumption that all Florida real estate licensees “are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer.” § 475.278(l)(b), Fla. Stat. (2006). The statute further provides that “[a] transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity.” § 475.278(2)(a), Fla. Stat. (2006) (emphasis added). In lieu of a general fiduciary duty, the statute sets forth specific duties that a transaction broker owes, including, for example, the duty to deal honestly and fairly, use skill, care and diligence, and maintain limited confidentiality. § 475.278(2)(a), Fla. Stat. (2006).

The Burchfields sued Realty Executives solely under a common law theory of breach of an implied fiduciary duty, and argue two reasons why this cause of action should have survived summary judgment notwithstanding the express statement in section 475.278 that a transaction broker is not a fiduciary. First, the Burchfields argue that the statute simply does not supplant the common law cause of action for breach of an implied fiduciary duty against a transaction broker. See, e.g., Wallace v. Odham, 579 So.2d 171, 175 (Fla. 5th DCA 1991) (applying common law rule that a “real estate broker is an agent of his principal in every sense, and when the relationship is undertaken, a fiduciary relationship is created”).

Although a statute in derogation of a common law right must be strictly construed, see, e.g., Fullerton v. Florida Medical Ass’n, Inc., 938 So.2d 587 (Fla. 1st DCA 2006), we agree with the trial judge that this statute unequivocally replaces the fiduciary duty owed by real estate brokers at common law with a more narrowly defined set of statutory duties. See also Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207-1208 (Fla.1997) (holding that a statute “ ‘designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law is intended unless the statute is explicit’ ”) (quoting Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362, 364 (Fla.1977)). Under this statute, which explicitly provides that a transaction broker “does not represent” either buyer or seller “in a fiduciary capacity,” it is clear that no cause of action is available against a transaction broker for common law breach of an implied fiduciary duty.

Second, the Burchfields argue that the statutory presumption that Realty Executives were acting as transaction brokers should not apply in this case because Realty Executives failed to provide them with a statutorily-required notice. Section 475.278(2)(b), Florida Statutes, requires all transaction brokers to provide a “separate and distinct disclosure document” either at or before the time of “entering into a listing agreement or an agreement for representation or before the showing of property, whichever occurs first.” The document is required to “advise customers of the duties of limited representation” owed by a transaction broker. Id. It is undisputed that Realty Executives failed to provide the Burchfields with this disclosure statement. Under section 475.278, however, the failure to disclose does not affect the statutory presumption.

Again, in clear and unambiguous language, the statute expressly limits the circumstances under which the statutory presumption can be rebutted to cases where: (a) a single agent relationship is established in writing, or (b) a no brokerage relationship is established in writing. The Legislature could also have provided that the presumption would be rebutted, or simply did not apply, in cases where the agent failed to make the required disclosure. They did not. “Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.” Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996). The trial court properly applied this principle to interpret section 475.278, Florida Statutes, and properly found that failure to provide the required disclosure document does not rebut or affect the statutory presumption.

In summary, we hold that section 475.278, Florida Statutes, replaces the common law fiduciary duty owed by a transaction broker to its clients with a more narrowly-defined set of statutory duties. We also hold that the statutory presumption that a licensee is acting as a transaction broker applies in cases where the broker fails to meet the statute’s notice requirement.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

      . In addition to the general duties set forth in the statute, a transaction broker owes any additional duties mutually agreed to with a party in writing. § 475.278(2)(a)7., Fla. Stat. (2006). Therefore, a transaction broker could be liable as a fiduciary, if the brokerage contract or other written agreement expressly creates a fiduciary relationship.

      . Failure to provide the notice would, of course, be a basis for administrative discipline against Really Executives.


author: GRIFFIN, J.

text:
    BURGER KING CORPORATION, Appellant, v. Willie QUASH, Appellee.
    No. 5D07-45.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Jan. 3, 3008.
    John P. Wiederhold, of Wiederhold & Moses, P.A., West Palm Beach, for Appellant.
    Marshall E. Rosenbach, of Law Offices of Marshall E. Rosenbach, Beverly Hills, CA, for Appellee.
   GRIFFIN, J.

Burger King Corporation [“Burger King”] appeals the trial court’s non-final order denying its motion to dismiss for forum non conveniens.

For reasons best known to Burger King, the motion to dismiss for forum non conve-niens was not accompanied by any affidavits. Burger King says the merit of its motion is “evident” from the face of the complaint; thus, no affidavit is required. See Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138 (Fla. 5th DCA 1998). Presumably, this refers to the fact that the complaint alleges that the incident on which the suit is based happened in Virginia. Burger King asserts that its witnesses are there but no evidence is offered of who the witnesses are or where they are. Appellee did file an affidavit setting forth the identity of his Florida witness and the prejudice to him if his choice of venue were disturbed. On this record, there is no basis for this court to reverse the trial court’s denial of Burger King’s motion.

AFFIRMED.

THOMPSON and EVANDER, JJ., concur.


author: PADOVANO, J.

text:
    FLORIDA STATE ORIENTAL MEDICAL ASSOCIATION, INC., (“FSO-MA”), Appellant, v. Stephen Marc SLEPIN, Richard Freiberg and Charlotte James, Appellees.
    No. 1D06-5296.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 8, 2008.

      Sorraya Solares and Nancy C. Ciampa of Carlton Fields, P.A., Miami; Dean A. Morande of Carlton Fields, P.A., West Palm Beach; Daniel Hernandez, Tallahassee, for Appellant.
    Stephen Marc Slepin of Maddox Horne, pro se, Tallahassee; Richard Freiberg, pro se, Pompano Beach; Charlotte James, pro se, Homestead.
   PADOVANO, J.

This is an appeal by a corporation from a judgment awarding attorney fees to a private lawyer who claimed to be providing legal services on the corporation’s behalf. Because there is no evidence that the attorney had actual or apparent authority to represent the corporation in the matter that is the subject of the fee award, we reverse with directions to enter a judgment for the corporation.

The appellant, Florida State Oriental Medical Association, Inc., is a nonprofit corporation organized to promote acupuncture and other forms of oriental medicine. Charlotte James was the president of the company and Richard Freiberg was the vice president. They also served as two of the corporation’s nine directors. The ap-pellee, Steven Slepin, is an attorney in private practice.

The present controversy arose in the wake of an internal dispute over Mr. Frei-berg’s activities. He wanted to teach a course on a certain medical procedure after he had lobbied the legislature for a law authorizing oriental medical specialists to perform the procedure. Some members of the board of directors were concerned that these objectives might be in conflict with each other. Fearing that the alleged conflict might expose the corporation to liability, they proposed to obtain a legal opinion on the issue.

Mr. Freiberg did not wish to seek a legal opinion, and Ms. James supported him on this point. A bitter split soon developed among the board members, with six of the nine members in favor of seeking legal advice and conducting an ethics investigation. Freiberg and James were joined by one other director in the minority of three. Eventually, all communication between the two camps became impossible, and the business of the corporation came to a standstill.

Amid growing animosity, the board ultimately voted to obtain a legal opinion and to conduct an ethics investigation into the possible conflict. A series of special or emergency board meetings ensued. Although both James and Freiberg were invited to the meetings, they did not attend. In a meeting held on January 6, 2002, the six members of the board voted to remove Freiberg from his position as vice president. Later, on January 26th, the six members voted to remove James from her position as president.

Freiberg retained attorney Slepin to file a defamation suit on his behalf against the six board members. James also decided that she would retain Slepin as her lawyer in connection with her removal as president. Slepin then began to advise Frei-berg and James on how they could suspend the six board members, reconstitute the board of directors, and retake control of the corporation.

In the beginning, the parties understood that Slepin was representing James and Freiberg in their individual capacities. Slepin had represented the corporation before in unrelated matters, but he informed Freiberg that their agreement for legal services would “kill” his representation of the corporation, and he made it clear that he would have to bill Freiberg for “personal representation.” Freiberg wrote Slepin a check in the amount of $1,500.00, drawn on his personal account.

On January 23, 2002, James met with Freiberg and the third board member in the minority. Acting ostensibly as the corporation’s ethics committee, they found the six board members who opposed them to be in violation of their duties. They voted to rescind the board memberships of those six members and to reconstitute the board of directors. On the next day, Slepin advised them that James should take control of the corporation’s bank accounts from the treasurer, which she did.

The six board members took the position that the suspensions were invalid, because the by-laws of the corporation specify that the ethics committee has no authority to suspend a director. According to the bylaws, the committee may make a recommendation for suspension, but the recommendation must be ratified by a majority of the board before it has any effect. Based on their belief that the attempted suspensions were unlawful, the six members continued to assert their authority as the governing board of the corporation.

It soon became apparent that Freiberg was unable to pay Slepin from his personal funds, but by then James had control of the corporate checking account. Slepin made it known that he would like to represent the corporation, in addition to James and Freiberg individually, and wrote in an email to Freiberg, “[s]hort of representation of [the corporation], I can’t give a whole lot more time to this drama.” Frei-berg responded that he would suggest to the “reconstituted board” that Slepin represent their version of the corporation. Slepin replied by stating that he would require a $10,000.00 retainer. The retainer was to cover 40 hours of work after which the corporation would be billed $250.00 per hour plus expenses.

The three directors purporting to act as the board formally authorized James to retain Slepin, and on January 31, 2002, James executed a retainer agreement with Slepin on- behalf of the corporation. She signed a $10,000.00 retainer check from the corporation’s legal defense fund. Using this retainer, Slepin filed a lawsuit against the six board members. The plaintiffs named in the case were James, Freiberg and the corporation.

The six members of the board retained attorney Greg Cesarano to represent the corporation. Cesarano sent a letter to Sle-pin, stating that the six board members constituted a majority of the duly elected voting board members, and therefore they were the true board of directors of the corporation. In the letter, he advised Sle-pin that the board did not endorse James and Freiberg’s actions, nor did it authorize Slepin to represent the corporation.

James, Freiberg and the third board member resigned by the middle of March, 2002, and the so-called reconstituted board stopped meeting. The retainer had been exhausted by this time, as well, and the bills Slepin was sending to James were not being paid. Because his fees were going unpaid, Slepin moved to withdraw the following May. The trial court granted the motion, and, in September of 2002, the lawsuit was voluntarily dismissed.

Slepin then filed suit to recover the unpaid legal fees incurred in the defamation action against the six board members. He sought to recover fees not only from James and Freiberg individually, but also from the corporation. He claimed that he had represented the corporation in the defamation action and that he had billed the corporation for work done on its behalf. The corporation defended on grounds that Freiberg and James lacked authority to hire Slepin on behalf of the corporation.

Following a bench trial, the trial court rendered a judgment in Slepin’s favor. The court found that Slepin had been hired to represent the corporation in the defamation case, that he had billed the corporation for his earned fees and that the fees remained unpaid. Based on these findings, the trial court awarded Slepin damages against the corporation in the amount of $25,288.16, and damages against Frei-berg and James in the amount of $2,388.34 each. The part of the judgment that pertains to Freiberg and James individually is not at issue here. This appeal was filed by the corporation.

We begin with several important principles of corporation law. A corporation is managed by its board of directors or by its officers acting under the direction and control of the board. This is generally true as a matter of corporation law throughout the United States, see Harry G. Henn and John R. Alexander, Laws of Corporations, §§ 203, 219 (1983), and it is true as a matter of Florida law as to both corporations for profit and not-for-profit. See § 607.0801 and 617.0801, Fla. Stat. (2007). The officers of a corporation are selected and removed by the directors.

An officer generally does not have authority to remove one of the directors. That may be done only by the shareholders in the case of a corporation for profit, see § 607.0808, Fla. Stat. (2007), or by the voting members in the ease of a not-for-profit corporation. See § 617.0808, Fla. Stat. (2007). While these basic principles might be subject to exceptions stated in the corporate charter or by-laws, it does not appear that any exception would apply here.

In this corporation, like most others, a minority faction of the board of directors cannot take control simply by voting to remove the directors in the majority. Yet that is what Freiberg and James attempted to do. They convened an “ethics committee” to evaluate the conduct of the six board members in the majority, concluded that these members had committed violations of the corporation’s policies, announced that they were removed from office, and then convinced themselves that they were in control of the corporation as the newly reconstituted board. As much as Freiberg and James may have wished that they had the power to take these actions, they did not. The board members in the majority continued to control the corporation.

The judgment in this case necessarily rests on the premise that James had authority as an agent of the corporation to retain Slepin to perform legal services on the corporation’s behalf. But that premise is not correct. There is no competent substantial evidence in the record to support a finding that James had either actual or apparent authority to bind the corporation by signing a retainer agreement with Slepin. All of the evidence demonstrates that she did not have such authority. Consequently, the retainer agreement did not create an obligation on the part of the corporation.

There can be little doubt that James lacked the actual authority to retain Slepin as the corporation’s lawyer. A finding of actual authority would require evidence that the principal acknowledged the agent’s power, that the agent accepted the responsibility of representing the principal, and that the principal retained control over the agent’s actions. See Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003); Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990); Restatement (Second) of Agency § 1 (1957). In the present case, James had been removed from office five days before she signed the retainer agreement with Slepin. From that point on, she had no actual authority to take any action on behalf of the corporation, much less to sign a contract on its behalf.

Nor did James have apparent authority to act for the corporation. Apparent authority arises under Florida law only when the principal creates the appearance of an agency relationship. See Lensa Corp. v. Poinciana Gardens Ass’n, 765 So.2d 296 (Fla. 4th DCA 2000). It does not depend on representations by the person claiming to be an agent or on the subjective belief of the person dealing with the purported agent. See Jones v. Tallahassee Mem. Reg. Healthcare, Inc., 923 So.2d 1245 (Fla. 1st DCA 2006). Rather, it is based entirely on the acts or omissions of the principal. As the court explained in Roessler v. Novak, 858 So.2d 1158, 1161 (Fla. 2d DCA 2003), apparent authority is authority that a principal “knowingly tolerates or permits,” or that the principal “by it actions or words holds the agent out as possessing.”

An agency relationship based on apparent authority exists only if the party asserting the existence of the relationship proves all three of the following elements: (a) a representation by the purported principal; (b) reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. See Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995). The record in this case does not support the first element, as there is no evidence that the corporation held James out as its agent.

Apparent authority might be a viable theory of recovery if Slepin reasonably believed that James had authority to retain him as the corporation’s lawyer, but that assumption is not reasonable. This is not a case in which a lawyer has been engaged to file a suit on behalf of a corporation against a third party, only to find out later that the officer signing the retainer agreement lacked authority. One faction of the board of directors retained Slepin purportedly on behalf of the corporation to sue another faction of the board. The nature of the engagement was enough in itself to put him on notice that the people hiring him might not speak for the corporation.

In these circumstances, it would be illogical to conclude that James had apparent authority to act on behalf of the corporation. To do so, we would have to accept the premise that Slepin reasonably believed the corporation had authorized James to retain him on its behalf to file suit against a majority of its own directors. This is a self-defeating proposition. As we have explained, the power to operate and control a corporation resides with its board of directors. A majority of the board of directors represents the will of the corporation. Surely the corporation did not intend to sue itself.

The assumption that James was authorized on behalf of the corporation is not only unreasonable under the circumstances, it is also refuted by direct evidence. When Slepin first agreed to represent Freiberg and James, he acknowledged that he would no longer be able to represent the corporation. It was only when it appeared that individual representation was not economically feasible that he brought up the idea of representing the corporation under the authority of the newly reconstituted board of directors. By then he knew that Freiberg and James had been removed from office by a majority of the board. Although it was obvious from the circumstances that James did not represent the corporation, a lawyer representing the six members in the majority of the board of directors also wrote to Slepin and categorically informed him that James was not authorized to act on behalf of the corporation.

Because the evidence presented in this case does not support a finding that James had actual or apparent authority to act on behalf of the corporation, the retainer agreement she made with Slepin does not bind the corporation. Accordingly, we reverse with instructions to enter a judgment for the corporation.

Reversed.

WOLF and POLSTON, JJ., concur.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. George GREEN, Appellee.
    Nos. 4D05-2009, 4D05-2247.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, State of Florida, appeals the trial court’s downward departure of appel-lee, George Green’s, sentence and Green cross-appeals. We affirm Green’s cross-appeal without discussion but reverse the downward departure sentence and remand for resentencing.

The State asserts that the trial court erred in imposing a downward departure sentence because the evidence presented was legally insufficient to meet the statutory requirements for such departure. In particular, the State argues that Green failed to establish that the Department of Corrections could not provide the specialized treatments for his physical disabilities.

Section 921.002(l)(f), Florida Statutes (2004), provides:

The Criminal Punishment Code embodies the principles that:

(f) Departures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.

Section 921.0026, entitled “Mitigating circumstances,” provides in pertinent part:

(1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.
(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:
(d) The defendant requires' specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.

§ 921.0026, Fla. Stat. (2004).

The two-step process for permitting a departure sentence and its review was propounded in Staffney v. State, 826 So.2d 509 (Fla. 4th DGA 2002):

A trial court’s decision whether to depart from the guidelines.is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground. Legal grounds are set forth in case law and statute and the facts supporting the ground must be proved by a preponderance of the evidence. This aspect of the court’s decision to depart is mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight.
Second, where the requirements set out above are met, the court must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant. In making this determination, the court must weigh the totality of the circumstances in the case, including aggravating and mitigating facts. This decision is within the sound discretion of the court and will be sustained on review absent an abuse of discretion.

Id. at 511 (citations omitted).

At the sentencing hearing, Green presented the testimony of a doctor from a Veteran’s Administration clinic who testified to Green’s mental and physical disabilities and his needs for specialized treatments. Green also testified concerning his medical problems and that during his stay in the county jail, he was given only Tylenol which was ineffective in treating his problems. At the close of the evidence, the trial court concluded that “there was testimony that he is only able to receive in his incarceration Tylenol and not other drugs better to treat him.”

“To receive a sentence pursuant to [section 921.0026(2)(d) ], a defendant must prove that-the Department of Corrections (DOC), cannot provide the specialized treatment required.” State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); see also State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005) (“There is no evidence in the record that DOC could not or would not accommodate any treatment needed.”); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005) (“To show that a defendant requires specialized treatment for a mental disorder, ‘it must be established that the mental disorder requires treatment that is not available in the Department of Corrections.’ ”) (quoting State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004)); State v. Green, 890 So.2d 1283, 1286-87 (Fla. 2d DCA 2005) (DOC’s ability to treat defendant is not appropriate subject for judicial notice, downward departure reversed); State v. Porche, 826 So.2d 1062, 1063 (Fla. 2d DCA 2002) (no evidence defendant will not receive necessary treatment while in DOC custody, downward departure reversed); State v. Tyrrell, 807 So.2d 122, 127-28 (Fla. 5th DCA 2002) (no evidence that defendant required specialized treatment or that any treatment required could not be adequately provided by DOC); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000) (same); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998) (same).

Green has the burden of proving that the DOC could not provide the specialized treatment he requires and such proof was not presented to the trial court. We reverse the downward departure sentence and remand for resentencing. The other arguments presented by the state are found to be without merit.

Appeal Reversed and Remanded; Cross Appeal Affirmed.

STONE and STEVENSON, JJ., concur.

      . In State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998), the court held that "a lack of available treatment in prison is not required under the statute.”1 Id. at 36.1 Green asserts that this court should follow the Fifth District’s lead in deciding this case. We note that the Fifth District has held otherwise since its decision in Spioch. See Mann; Tyrrell; Thompson.


author: PER CURIAM.

text:
    Stewart PHILLIPS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-4247.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 25, 2008.
    William S. Abramson, West Palm Beach, for petitioner.
    No response required for respondent.
   PER CURIAM.

Petitioner has filed a petition for writ of prohibition seeking to disqualify the presiding judge. We deny the petition on the merits.

Petitioner is the defendant in a criminal case. His attorney is currently a candidate for circuit court judge. Petitioner alleged his belief that the presiding judge’s husband has made a campaign contribution to petitioner’s counsel’s opponent in the judicial race. Petitioner speculates that the donor is in fact the judge’s husband. Petitioner alleges that based on that campaign contribution he fears that that the presiding judge will not treat him fairly or impartially.

We hold that petitioner’s “belief’ of a donation, or even an actual donation, by the spouse of a sitting judge is too remote to warrant disqualification in this case. Compare Neiman-Marcus Group, Inc. v. Robinson, 829 So.2d 967, 968 (Fla. 4th DCA 2002) (citing Cherradi v. Andrews, 669 So.2d 326 (Fla. 4th DCA 1996)).

We deny the petition for writ of prohibition.

STONE, POLEN and KLEIN, JJ., concur.