author: PER CURIAM.

text:
    Roger Lee CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. SC02-2023.
    Supreme Court of Florida.
    April 12, 2007.
    Rehearing Denied June 7, 2007.

      Linda McDermott of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL and Kenneth S. Nunnelley, Senior Assistant Attorney General, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Roger Lee Cherry appeals an order of the circuit court denying his second motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and an order concluding that he is not mentally retarded under Florida Rule of Criminal Procedure 3.203. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As explained below, we affirm the circuit court’s denial of Cherry’s postconviction motion and the order on mental retardation.

I. FACTS AND PROCEDURAL HISTORY

Cherry was convicted of two counts of first-degree murder, one count of burglary with assault, and one count of grand theft following the 1986 murders of Ester and Leonard Wayne. Cherry v. State, 544 So.2d 184, 184-85 (Fla.1989). We affirmed both murder convictions and the death sentence imposed for Ester’s murder; however, we reversed the death sentence imposed for Leonard’s murder on proportionality grounds. Id. at 186-88. The facts of this case are fully set out in our prior opinion in Cherry’s direct appeal. See id. at 185-86.

The circuit court summarily denied each of the claims in Cherry’s first motion for postconviction relief. On appeal, we affirmed that denial with respect to most claims but remanded for an evidentiary hearing on Cherry’s ineffective assistance of penalty phase counsel claims. Cherry v. State, 659 So.2d 1069, 1074 (Fla.1995). After an evidentiary hearing, the circuit court again denied relief, and we affirmed that denial on appeal. Cherry v. State, 781 So.2d 1040, 1055 (Fla.2000).

On August 7,1997, Cherry filed a second postconviction motion, raising five claims. The circuit court held a Huff hearing, after which it summarily denied all five of Cherry’s claims. State v. Cherry, No. 1986-04473 (Fla. 7th Cir. Ct. order dated Oct. 16, 2001) [hereinafter Postconviction Order I]. Following Cherry’s motion for rehearing, the circuit court reversed part of its decision and granted Cherry’s motion for an evidentiary hearing to address the claim of newly discovered evidence.

At the hearing on June 10, 2002, Cherry presented the testimony of several witnesses regarding his newly discovered evidence claim, including Levester Hill, one of his childhood friends, who testified that another man, James Terry, confessed to playing a role in the murders. Terry also testified at the hearing, claiming that while he had talked with Hill about Cherry’s case, he never said that he played any part in the murder of the Waynes.

After the hearing, the circuit court denied relief on this claim. State v. Cherry, No. 1986-04473 (Fla. 7th Cir. Gt. order dated Aug. 12, 2002) [hereinafter Postcon-viction Order II]. Cherry appealed the denial of his postconviction motion, raising two issues.

While review of the circuit court’s decision was pending before this Court, Cherry filed a third motion for postconviction relief, based on the decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The State filed a motion to relinquish jurisdiction on the basis of this third motion. On November 18, 2004, we relinquished jurisdiction to the circuit court for a determination of mental retardation pursuant to rule 3.203. The circuit court held a hearing on July 25, 2005, at which the defense presented evidence.

Following this hearing, the circuit court found that Cherry did not meet the statutory definition for mental retardation. Cherry v. State, No. 86-4473 (Fla. 7th Cir. Ct. order filed Oct. 14, 2005) [hereinafter Supplemental Order],

On November 2, 2005, we granted leave to Cherry and the State to supplement their initial briefs to this Court on the basis of the circuit court’s determination that Cherry is not mentally retarded. Following oral argument on January 5, 2007, we now affirm the circuit court’s denial of each of Cherry’s claims.

II. ANALYSIS OF ISSUES ON APPEAL

A. Original Postconviction Issues

1. Newly Discovered Evidence

Cherry argues that the circuit court erred in denying his newly discovered evidence claim. Newly discovered evidence must meet two requirements in order for a court to set aside a conviction or death sentence. First, Cherry must show that the evidence could not have been discovered with due diligence at the time of trial. Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994). Moreover, “any claim of newly discovered evidence in a death penalty case must be brought within one year of the date such evidence was discovered or could have been discovered through the exercise of due diligence.” Glock v. Moore, 776 So.2d 243, 251 (Fla.2001). Second, Cherry must show that the evidence would probably produce an acquittal or a lesser sentence on retrial. Jones v. State, 591 So.2d 911, 915 (Fla.1991). In considering whether this evidence would affect the outcome at the guilt or penalty phase of a trial, courts consider whether the evidence would have been admissible at trial, the purpose for which the evidence would have been admitted, the materiality and relevance of and any inconsistencies in the evidence, and the reason for any delays in the production of the evidence. Jones v. State, 709 So.2d 512, 521-22 (Fla.1998).

In reviewing a circuit court’s decision on a postconviction motion, we do not substitute our judgment for that of the circuit court on questions of fact, questions concerning the credibility of the witnesses, or questions of the weight to be given to the evidence so long as those judgments are supported by competent, substantial evidence. Porter v. State, 788 So.2d 917, 923 (Fla.2001).

The evidence at issue that Cherry claims is newly discovered is a confession made by James Terry to Levester Hill that he (Terry) participated in these murders. At the hearing, Cherry submitted Hill’s affidavit and called Hill to testify. According to the affidavit, Hill and Terry discussed the crimes three separate times following Cherry’s conviction. Hill alleged that immediately after Cherry’s conviction and again in 1988, Terry said that Cherry had not committed the crimes for which he was found guilty. Also, in their 1988 conversation, Hill attested that Terry stated that he threw out a pair of shoes because they matched shoe prints at a crime scene. The final time that Hill talked about these crimes with Terry, which is the basis for the instant claim, was in October of 1994. According to Hill, Terry again stated that Cherry did not murder the Waynes. Terry then told Hill that he was at the crime scene and described the events that took place on the night of the murders. Terry told Hill that Mrs. Wayne woke up when Terry entered the house and that she then started screaming. Mr. Wayne entered the room and clutched his chest before falling to the floor.

Terry also told Hill that he had forced Lorraine Neloms to testify against Cherry at trial. Neloms was a key witness for the State, and she testified that Cherry was absent around the time of the murders and that Cherry confessed to her that he had entered a residence near the armory, a struggle had ensued between himself and the residents, and that he had stolen the wallet and car of the residents. Cherry, 544 So.2d at 185. Neloms was Cherry’s girlfriend at the time of the murders, and she was also Terry’s niece.

This evidence came to the attention of Cherry’s counsel on August 9, 1996, when Monica Conklin, an investigator for Capital Collateral Regional Counsel, began researching potential mitigation evidence on Cherry’s behalf in preparation for his post-conviction proceedings. Since Hill had been close friends with Cherry growing up, Conklin arranged a meeting with Hill. While interviewing him, Conklin discovered that Hill had this information concerning his conversations with Terry about the crime. At that interview, Hill signed an affidavit as to the facts stated above.

Cherry’s counsel attempted to introduce the affidavit at Cherry’s first postconviction hearing, but since it had not been raised in that motion, the circuit court did not permit its presentation. Cherry’s counsel thus filed the second posteonvietion motion, which is the subject of this appeal, on August 7,1997.

At the evidentiary hearing, Hill’s testimony was substantially similar to the statement in his affidavit. Two discrepancies did emerge, however. At the hearing Hill testified that Terry never specifically stated that he was in the Waynes’ house, but Hill assumed that Terry was at the crime scene given Terry’s knowledge about the events that night. This testimony is slightly different from the statement in Hill’s affidavit that Terry admitted to being at the crime scene. Hill also testified at the hearing that Terry did not state that he made Neloms testify against Cherry, which contradicts a statement from Hill’s affidavit.

Terry also testified at the evidentiary hearing. While he admitted to speaking with Hill in 1994 about the murders, he testified that he never said that Cherry did not commit the crime, that he never said he threw away a pair of shoes because they matched prints from a crime scene, and that he had never told Neloms what to testify to at trial. Terry also testified that he was not present at the Waynes’ residence on the night of the murders but was on a trip to Apopka with his employers.

The circuit court denied Cherry’s claims, holding that this newly discovered evidence was both procedurally barred and lacking in credibility. Postconviction Order II at 3.

a. Due Diligence

Cherry first argues that Terry’s alleged confession to Hill was discovered with due diligence. The circuit court rejected this claim, stating:

The actual confession in this case was unknown at the time of trial because it was allegedly made, piecemeal, beginning in 1987, after Defendant was convicted. Although the last “piece” of the alleged confession was made in 1994, it did not come to defense counsel’s attention until August 9, 1996, when defense counsel was preparing for the evidentia-ry hearing to be held in December of 1996, as ordered by the Florida Supreme Court. Defendant has only one (1) year from the date the evidence was discovered or could have been discovered to file a Rule 3.850 Motion. Glock v. Moore, 776 So.2d 243, 251 (Fla.2001); Jones, 591 So.2d at 915-16. Therefore, the Court finds that at the very least, this “newly discovered evidence” could have been discovered, by due diligence, in 1994 and brought to the Court’s attention within one year from that date. Thus, the Court finds that Defendant has not successfully demonstrated that the “evidence” is newly discovered. Accordingly, this claim is untimely.

Postconviction Order II at 2-3.

In 1996, when Conklin first spoke to Hill, it was only because Hill was a childhood friend of Cherry, and the investigator was attempting to gather mitigation evidence for Cherry’s first postconviction motion. While Cherry’s counsel had apparently suspected Terry was involved in the killings, they had no knowledge that Terry and Hill even knew each other, much less that they had spoken about the crimes. Hill offered the information about his conversations with Terry to Conklin on August 9, 1996. Counsel attempted to introduce the affidavit at the first postcon-viction motion hearing but was not allowed to do so and thus filed the present motion on August 7, 1997, within one year of Hill’s interview and affidavit signing.

We have barred evidence under the first prong of the newly discovered evidence rule before, but in those cases, the evidence was of such a nature that there was no reason the defendant could not have discovered it many years before. The evidence in these cases had either been in existence and accessible by the defense years before or was evidence of general, public knowledge. For example, in Glock v. Moore, 776 So.2d 243, 251 (Fla.2001), we held that evidence that traffic stops on the New Jersey Turnpike might have been illegal because of the discriminatory use of racial and drug profiling in 1983 was procedurally barred from being introduced as newly discovered at the postconviction hearing in 2000. The circumstances of the defendant’s stop were known by counsel and the use of racial and drug-profiling in traffic stops had been well known for many years, so the evidence was not newly discovered. Id.

Evidence was also procedurally barred in Jones v. State, 591 So.2d 911, 916 (Fla.1991), because the evidence included the testimony of witnesses at the crime scene who were listed in the police report, and their testimony concerned circumstances that occurred at the time of the murder. When the defendant attempted to resurrect this testimony as newly discovered evidence ten years later, we held that it was procedurally barred because it could have been discovered earlier with due diligence since these witnesses and their statements were found in police records at the time of the crime. Id. We also approved the decision of a postconviction court holding that the defendant had not exercised due diligence because the witness whose testimony was the newly discovered evidence had been interviewed by police at the time of the trial and the witness’s name appeared in the police reports. Swafford v. State, 828 So.2d 966, 977 (Fla.2002). Finally, a codefendant’s testimony that the defendant was not the ringleader of a gang involved in a murder was procedurally barred because the defendant was aware of the codefendant and could have deposed him at the time of trial. Walton v. State, 847 So.2d 488, 454 (Fla.2003).

We have also found evidence of conversations similar to those in the instant case to not be procedurally barred even though they were first introduced years later. For example, we approved a district court’s holding that a claim of newly discovered evidence, statements made in 1989 by the State’s key witnesses that they had lied at the defendant’s trial, were not pro-eedurally barred in 1996 under the first prong of Jones. Robinson v. State, 770 So.2d 1167, 1170 (Fla.2000). We also affirmed a postconviction order holding a 1980 confession by a codefendant to his cellmate and not presented until a 2001 postconviction motion was not procedurally barred under the first prong of Jones. State v. Mills, 788 So.2d 249, 250 (Fla. 2001). Also, in Jones, though certain evidence was procedurally barred, jailhouse confessions made in 1985 by the alleged actual killer “clearly qualified] as newly discovered evidence” in the defendant’s 1991 second postconviction claim. Jones, 591 So.2d at 916. In comparing these cases to the above situations, where we held that testimony and evidence were procedurally barred, our determination as to whether a defendant exercised due diligence tends to turn on whether the testimony and evidence are in the possession of persons with a personal or an on-the-record connection to a case.

In the present case, the confession which is the newly discovered evidence occurred in 1994, was not discovered until August 9, 1996, and was claimed in a motion filed on August 7,1997. The evidence was not in existence at trial and so could not have been discovered at that time. There was no evidence presented either by the State or Cherry that anyone ever knew of a connection between Hill and Terry or that Terry had spoken about this crime with anyone besides Hill. Hill stated at the hearing that the first person he ever told about these conversations was Conklin in 1996. This evidence is not the testimony of a witness who was either at the crime scene or was known to have any connection to the crime by either defense counsel or the State.

We conclude that the circuit court erred in holding that this evidence was proeedurally barred. There is no support for the conclusion that Hill’s testimony should have been discovered in 1994. Hill was not connected to any of the events of the crime. Thus, we conclude that Hill’s conversations with Terry could not have been discovered with due diligence prior to their actual discovery in 1996.

b. Effect of Newly Discovered Evidence

Even though we find that the evidence is not procedurally barred, we must still determine whether the evidence would probably produce an acquittal or lesser sentence on retrial. Cherry argues that Terry’s confession to his presence at the murder would have resulted in at least a life sentence rather than the death penalty, if not an acquittal on the murder charge. The circuit court held that Terry’s testimony was more credible than Hill’s testimony on key points and also denied the newly discovered evidence claim on its merits. The circuit court’s order states:

Moreover, the Court finds that the claim should otherwise be denied on its merits. Mr. Hill’s live testimony is inconsistent, albeit slightly, with his affidavit. More importantly, after hearing the testimony of all the witnesses and observing their demeanor, this Court finds that Mr. Hill’s testimony is simply not credible, nor worthy of belief. The testimony of Mr. Terry, on the other hand, is more credible on key points.

Postconviction Order II at 3.

We find that the circuit court’s conclusion as to the merits of the newly discovered evidence is supported by competent, substantial evidence. In evaluating a circuit court’s order, “this Court will not substitute its judgment for that of the trial court on ... the credibility of the witnesses and the weight to be given to the evidence,” provided its order is supported by competent, substantial evidence. Porter, 788 So.2d at 923. We are highly deferential to circuit court determinations of credibility. Archer v. State, 934 So.2d 1187, 1196 (Fla.2006). After our careful review of the record, we conclude that the circuit court’s determination on this issue should be affirmed.

In addition, in assessing the weight to be accorded to newly discovered evidence, we consider the evidence in conjunction with all other admissible evidence. Jones, 709 So.2d at 522. Physical evidence introduced at trial confirms that Cherry was at the crime scene. Blood found on window panes at the Waynes’ house, on a piece of paper near their cut telephone fines, and on a towel inside the Waynes’ stolen car was consistent with Cherry’s blood type. Cherry, 544 So.2d at 185. Cherry also had a cut on his thumb at the time of his arrest four days later, which he told police he had received while he was cutting the head off of a fish. Id. Lorraine Neloms testified that when Cherry had returned home the night that the murders took place, Cherry was bleeding from a cut on his thumb and that he told her that the injury was the result of having cut a fine. Id. Cherry’s palm print was also found on one of the doors inside the home, and his thumb print was found on one of the window panes. Id. This physical evidence, along with Neloms’ testimony, served as the State’s primary evidence and led to Cherry’s conviction and death sentence. Id. Thus, it has not been demonstrated that even had Hill’s testimony been presented at trial, Cherry probably would have received a different conviction or sentence. Even if Hill’s testimony was wholly credible and believed by the jury, at no point in his statement did he indicate that Terry confessed to committing the murders or that Cherry did not participate in the events that night.

2. Scientific Evidence

Cherry next argues that the population frequency statistics of blood types presented at his trial should have been subject to a Frye analysis, in accordance with this Court’s decision in Brim v. State, 695 So.2d 268 (Fla.1997). In Brim, we held that the Frye test was to be applied in determining whether to admit population frequency statistics of DNA. Id. at 271. The circuit court summarily denied this claim, holding that it was procedurally barred and should have been raised at trial or on direct appeal. Postconviction Order I at 433-34.

The relevant trial testimony was that of David Baer, a crime laboratory analyst in the serology section of the Florida Department of Law Enforcement Crime Laboratory. Baer, admitted as an expert on serology, testified that some of the blood found at the crime scene matched Cherry’s blood group typing. Baer also calculated while on the stand that Cherry’s blood group factor and the six enzymes found in his blood are found in approximately one and nine-tenths percent (1.9%) of the population. While Cherry’s counsel argued prior to Baer’s testimony at trial that the expert’s testimony should be confined to his area of expertise, Cherry did not object when Baer testified as to this population frequency analysis or request a Frye hearing on this testimony. Additionally, Cherry first raised this issue only after his conviction and sentence became final on direct appeal.

Cherry argues that this issue is not procedurally barred because it could not have been raised at trial, on direct appeal, or even in his first postconviction motion because those proceedings all took place before this Court’s opinion in Brim was issued in 1997. Thus, Cherry argues that Brim should be applied retroactively and cites to Murray v. State, 692 So.2d 157 (Fla.1997), as an example of such retroactive application.

In Murray, the State offered DNA evidence that was objected to at trial by the defendant on the basis that both the method of DNA testing and the probability calculations used by the State’s expert to report the frequency of a match should have been subject to the standards of Frye before they were admitted. Id. at 160. Murray objected to this evidence at the pretrial suppression hearing, but the judge allowed the evidence, holding that the methodology used to analyze the evidence was a weight issue for the jury to consider. Id. at 161. On appeal, we applied Brim in reiterating that both parts of DNA testing and analysis, including the population frequency analysis, are subject to a Frye analysis and held that it was the trial judge’s responsibility to determine whether the methods used were proper under Frye. Id.

Cherry argues that because the trial in Murray occurred before the decision in Brim, we retroactively applied Brim when we relied on it in Murray’s direct appeal. However, in Murray, we addressed a preserved claim on direct appeal, to which Brim need not have been retroactively applied. Murray simply is not an example of the retroactive application of Brim.

Brim has never been held to apply retroactively. In fact, in Armstrong v. State, 862 So.2d 705 (Fla.2003), an appeal of a postconviction motion, we declined to hold trial counsel ineffective for failing to object to population frequency analysis in the context of DNA testing because the trial in question occurred before Brim was issued. Specifically, we stated:

We further note the error in Armstrong’s assertion that his trial counsel provided ineffective assistance by failing to challenge more specific elements of DNA testing, such as autoradiograms and population substructuring, through a Frye hearing. This trial occurred in 1991, six years prior to this Court’s clarification of the Frye test in Brim v. State, 695 So.2d 268 (Fla.1997), that each stage of the DNA process, i.e., the methodology for determining DNA profiles, as well as the statistical calculations used to report the test results, are subject to the Frye test. Armstrong’s trial counsel cannot be found ineffective for not demanding the satisfaction of a more complex test than was required by the law at the time of trial.

Armstrong, 862 So.2d at 713 n. 7. Our description of Brim as a “clarification of the Frye test” suggests that Brim did not issue a new rule of law to be given retroactive effect. Therefore, we conclude that the circuit court properly denied Cherry’s claim that the population frequency analysis should have been subject to a Frye analysis because that claim is procedurally barred.

B. Mental Retardation Claim

Finally, Cherry challenges the circuit court’s determination that he is not mentally retarded in accordance with the definition set forth in section 921.137(1), Florida Statutes (2002), which provides:

As used in this section, the term “mental retardation” means significantly subav-erage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services. The term “adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

Thus, Cherry must establish that he has significantly subaverage general intellectual functioning. If significantly subaverage general intellectual functioning is established, Cherry must also establish that this significantly subaverage general intellectual functioning exists with deficits in adaptive behavior. Finally, he must establish that the significantly subaverage general intellectual functioning and deficits in adaptive behavior manifested before the age of eighteen.

The circuit court appointed two expert psychologists to test, examine, and evaluate Cherry for the court’s mental retardation determination: Dr. Peter Bursten on behalf of the defense; and Dr. Greg Prich-ard on behalf of the State. Both Dr. Bur-sten and Dr. Prichard submitted reports on their findings.

At the July 25, 2005, hearing, the defense first called Dr. Bursten to testify. Dr. Bursten stated that he interviewed Cherry, reviewed a large amount of background information, administered the Wechsler Adult Intelligence Scale, third edition (WAIS-III), and interviewed three people who knew Cherry before the offense. On the WAIS-III test Dr. Bursten administered, Cherry scored a full scale IQ of 72. On cross-examination, Dr. Bursten agreed that the two standard deviations language in the rule would place the mental retardation cutoff score at 70.

The defense then also called Dr. Prich-ard. Dr. Prichard also administered several tests, although he relied on the WAIS-III test administered by Dr. Bur-sten for Cherry’s IQ score. Both Drs. Bursten and Prichard testified that the standard error of measurement (SEM) should be taken into account in every IQ analysis. Dr. Bursten stated:

The concept of mental retardation is considered to be a range or band of scores, not just one score or a specific cutoff for mental retardation. The idea behind that is there’s recognition that no one IQ score is exact or succinct, that there’s always some variability and some error built in.
And the Diagnostic and Statistical manual which is what we — meaning the mental health professionals — rely on when arriving at diagnostic hypotheses. That manual guides us to look at IQ scores as being a range rather than absolute. And the manual talks about a score from 65, a band, so to speak, from 65 to 75 — and of course, lower than 65— comprising mental retardation.

Several exhibits were also submitted by the defense. Among these exhibits were several preseritence investigation reports throughout the defendant’s life which included various IQ scores. The defense rested, and the State produced no witnesses at the evidentiary hearing. Following the hearing, the circuit court denied Cherry’s motion for a determination of mental retardation. Supplemental Order at 15.

In reviewing mental retardation determinations in previous cases, we have employed the standard, of whether competent, substantial evidence supported the circuit court’s determination. See Johnston v. State, 31 Fla.L.Weekly S273 (Fla.2006). To the extent that the circuit court decision concerns any questions of law, however, we apply a de novo standard of review.

The fundamental question considered by the circuit court and raised in this appeal is whether the rule and statute provide a strict cutoff of an IQ score of 70 in order to establish significantly subaverage intellectual functioning. Cherry argues that the standard error of plus or minus five points should be taken into account so that the actual cutoff, score is 75, in accordance with provisions and rules from the Diagnostic and Statistical Manual of Mental Disorders and the American Association on Mental Retardation. Cherry also argues that because of the SEM, the IQ measurement is more appropriately expressed as a range of scorés rather than just one number. Thus, his IQ score should actually be described as within the range of 67 to 77.

However, the circuit court denied this argument, holding:

Neither Rule nor statute reference the standard error measurement or use the word “approximately”. The Florida Department of Children and Families, in determining mental retardation for eligibility for developmental services, makes the 70 IQ score a bright-line cutoff. This Court notes, however, that the DSM-IV-TR recognizes IQ is more accurately reported as a range of scores, a position reflected in the staff analysis for (what was ultimately) Fla. Stat. § 921.137. The Legislature had mental retardation definitions from various states before it, some of which unequivocally provided that certain IQ scores created a mere presumption either for or against mental retardation; language the Legislature did not include in the Florida law. Neither did they set the cutoff at 75. This Court declines to perform a blanket change of the clearly stated IQ criteria, however, the +/-5 standard of error is a universally accepted given fact and, as such, should logically be considered, among other evidence, in regard to the factual finding of whether an individual is mentally retarded.

Supplemental Order at 7 (citations and footnotes omitted).

Both section 921.137 and rule 3.203 provide that significantly subaverage general intellectual functioning means “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” One standard deviation on the WAIS-III, the IQ test administered in the instant case, is fifteen points, so two standard deviations away from the mean of 100 is an IQ score of 70. As pointed out by the circuit court, the statute does not use the word approximate, nor does it reference the SEM. Thus, the language of the statute and the corresponding rule are clear. We defer to the plain meaning of statutes:

When [a] statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002). In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. See State v. Burris, 875 So.2d 408, 410 (Fla.2004). When the statutory language is clear, “courts have no occasion to resort to rules of construction — they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So.2d 989, 990-91 (Fla.1996).

Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64-5 (Fla.2005). Because the circuit court applied the plain meaning of the statute, it did not err in its conclusion that Cherry failed to meet this first prong.

In Atkins, the Supreme Court recognized that the various sources and research differ on who should be classified as mentally retarded. For this reason, it left to the states the task of setting specific rules in their determination statutes. The Legislature set the IQ cutoff score at two standard deviations from the mean, and this Court has enforced this cutoff:

The evidence in this case shows [the defendant’s lowest IQ score to be 79. Pursuant to Atkins, ... a mentally retarded person cannot be executed, and it is up to the states to determine who is “mentally retarded.” Under Florida law, one of the criteria to determine if a person is mentally retarded is that he or she has an IQ of 70 or below. See § 916.106(12), Fla. Stat. (2003) (defining retardation as a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age eighteen, and explaining that “significantly subaverage general intellectual functioning” means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department); Cherry v. State, 781 So.2d 1040, 1041 (Fla.2000) (accepting expert testimony that in order to be found retarded, an individual must score 70 or below on standardized intelligence test).

Zack v. State, 911 So.2d 1190, 1201 (Fla.2005).

Given the language in the statute and our precedent, we conclude that competent, substantial evidence supports the circuit court’s determination that Cherry does not meet the first prong of the mental retardation determination. Cherry’s IQ score of 72 does not fall within the statutory range for mental retardation, and thus the circuit court’s determination that Cherry is not mentally retarded should be affirmed.

Because we find that Cherry does not meet this first prong of the section 921.137(1) criteria, we do not consider the two other prongs of the mental retardation determination. We affirm the circuit court’s denial of Cherry’s motion for a determination of mental retardation.

III. CONCLUSION

For the reasons stated, we affirm the circuit court’s denial of his postconviction motion, and the circuit court’s determination that Cherry is not mentally retarded.

It is so ordered.

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

      .The claims raised by Cherry were: (1) he was denied access to important files and records by State agencies and offices; (2) newly discovered evidence would have altered the outcome of his trial; (3) inadmissible, inaccurate scientific evidence was improperly admitted at his trial; (4) execution by electrocution is cruel or unusual punishment or both; and (5) appellate lawyers should not be prohibited from interviewing trial jurors.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . Cherry raised the following issues on appeal: (1) newly discovered evidence existed, which if introduced at his trial, would have altered the outcome of the trial; and (2) certain scientific evidence was improperly admitted at his trial.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye test requires a judicial determination that the basic underlying principles of and methods used to analyze scientific evidence have been sufficiently tested and accepted by the relevant scientific community. Id. at 1014.

      . We also note that the evidence in the instant case deals with the population frequency analysis of blood typing, as opposed to the more novel DNA testing at issue in Brim.

      . The following IQ scores were reported in the exhibits, in- addition to the test administered in 2005: 71 on Kent test administered in 1968; 85 on Beta test administered in 1972; 79 on Kent test administered in 1976; 86 on Beta test administered in 1979; 68 on Beta test administered in 1987; 72 on WAIS-R test administered in 1992; and 78 on WAIS-R test administered in 1996.

      . In Atkins, the Supreme Court noted that "[i]t is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” 536 U.S. at 309 n. 5, 122 S.Ct. 2242. However, the Court concluded, “As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, 'we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.' Id. at 405, 416 — 17[, 106 S.Ct. 2595].” Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (alterations in original).

      . Indeed, another jurisdiction considering a similar claim noted that fourteen of the twenty-six jurisdictions with mental retardation statutes have a cutoff of seventy or two standard deviations below the mean. Bowling v. Commonwealth, 163 S.W.3d 361, 373-74(Ky.) (upholding use of seventy IQ score cutoff), cert, denied, 546 U.S. 1017, 126 S.Ct. 652, 163 L.Ed.2d 528 (2005).


source: Caselaw Access Project

author: STEVENSON, C.J. PER CURIAM.

license: Public Domain

text:
    Scott LEWIS, Carol Lewis and Scott Lewis Gardening & Trimming, Inc., a Florida corporation, Appellants, v. NICAL OF PALM BEACH, INC., a Delaware corporation, Amy Habie, Patrick Bilton and Boies, Schiller & Flexner, LLP, Appellees.
    Nos. 4D05-1841, 4D05-1987, 4D05-2835.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Order Denying Rehearing, Rehearing En Banc, Clarification and Certification Aug. 1, 2007.

      Scott Lewis and Carol Lewis, West Palm Beach, pro se.
    Jack Scarola of Searcy, Denny, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellant Scott Lewis Gardening & Trimming, Inc., and as Special Prosecutor.
    Elliot H. Scherker, Alan T. Dimond and Daniel M. Samson of Greenberg Traurig, P.A., Miami, for appellees Nical of Palm Beach, Inc., and,Amy Habie.
    Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for appellees Nical of Palm Beach, Inc., and Patrick Bilton.
    Jay M. Levy of Jay M. Levy, P.A., Miami, for appellee Boies, Schiller & Flexner, LLP.
   STEVENSON, C.J.

These are consolidated appeals from three orders of the trial court on motions for contempt filed by Scott and Carol Lewis and Scott Lewis Gardening & Trimming, Inc. (“SLG & T”), seeking to hold Nical of Palm Beach, Inc. (“Nical”), Amy Habie, and Patrick Bilton in contempt of court. In the first of these orders, the trial court found Nical and Bilton guilty of indirect criminal contempt and, in the second order, pronounced sentence. The trial court imposed a fine upon Nical and sentenced Bilton to a term of incarceration, a portion of which is suspended upon his payment of a fine and his not further violating any orders of the court. As an additional sanction, the trial court disqualified the law firm that had been representing Nical, Ha-bie, and Bilton. In the third order, the trial court denied a further motion to hold Nical, Habie, and Bilton in civil contempt. Scott and Carol Lewis and SLG & T (collectively referred to as “the Lewis parties”) have appealed from all three orders; Nical, Habie, and Bilton (collectively referred to as “the Nical parties”) have appealed from the order of indirect criminal contempt and the resulting sentence.

As a consequence of the discussion which follows: (1) we affirm the trial court’s order to the extent that it holds Nical and Patrick Bilton in indirect criminal contempt as a consequence of Bilton’s conversation with White; (2) we affirm the sentence imposed upon Bilton and the fine imposed upon Nical as a consequence of Bilton’s conversation with White; (3) we reverse that portion of the order holding Nical in indirect criminal contempt as a consequence of the issuance of the subpoena to White and reverse the. resulting fine imposed against Nical; (4) we reverse that portion of the criminal contempt sentencing order disqualifying the Nical parties’ counsel and remand without prejudice for the trial court to once again impose such a sanction after affording Attorney Rash and the law firm notice and the opportunity to be heard on the issue; (5) we affirm the trial court’s ruling that the evidence failed to support the imposition of a compensatory civil contempt sanction for any of the violations, but reverse the court’s holding that a coercive civil contempt sanction was not available as a remedy; and (6) since these additional sanctions are, in fact, imposable, on remand, the trial court may reconsider the entire penalty scheme consistent with this decision.

The Initial Litigation & the S.ettlement

About ten years ago, Amy Habie purchased a landscape business, Scott Lewis Gardening & Trimming, Inc., from its principal, Scott Lewis. Habie operated her newly-purchased landscape business under the name Nical of Palm Beach, Inc. Amy Habie owns 50% of Nical, Patrick Bilton 25%, and the Boies family trust the remaining 25%. The purchase agreement contemplated that Lewis would work for Habie. Disputes soon arose, and Lewis resumed his business under the name Scott Lewis Gardening & Trimming, Inc. Litigation between Nical, Scott and Carol Lewis, and SLG & T ensued. This litigation was resolved through a 1998 settlement agreement. The agreement provided in part that (1) Nical would transfer all right to the name “Scott Lewis Gardening & Trimming, Inc.” to Lewis; (2) Nical would discontinue the use of any business name that includes “Scott Lewis” and discontinue such listings in telephone and other directories; and (3) the parties would refrain from contacting, communicating with, or soliciting one another’s customers. The settlement was adopted by the trial court in a final judgment entered February 19,1999.

Subsequent Violations of the Settlement Agreement & the Contempt Proceedings that Resulted in the Orders Appealed

The truce was short lived. In the years which followed, Habie and Nical were found in contempt on numerous occasions for violating court orders related to the settlement agreement, particularly involving the use of similar business names, misleading telephone and internet directory listings, contact with Lewis’s clients, and the like. Some of the subsequent contempt violations, but not all, are discussed in Nical of Palm Beach, Inc. v. Lewis, 815 So.2d 647 (Fla. 4th DCA 2002). In regard to the instant appeal, Lewis filed a contempt motion on September 30, 2004, alleging that Nical, Habie, and Bilton had violated the settlement agreement and the court’s orders by contacting one of Lewis’s clients, the Town of Palm Beach, via a conversation between Bilton and Steve White, a town official. On December 7, 2004, the Lewis parties filed another motion, alleging Habie and Nical violated a court order when their counsel, Boies, Schiller & Flexner, issued a subpoena to White in violation of a July 6, 2000 order requiring court approval before the issuance of a subpoena to any individual on either party’s client list.

An evidentiary hearing was held on the contempt motion and, on March 21, 2005, Judge Gerber entered an order finding Nical and Bilton guilty of indirect criminal contempt as a consequence of Bilton’s conversation with White and finding Nical guilty of indirect criminal contempt as a consequence of the issuance of the subpoena. Habie was found not guilty of indirect criminal contempt concerning Bilton’s conversation with White and no specific findings were made regarding Habie and the contempt charge stemming from the subpoena. The trial judge found the violations had to be characterized as criminal contempt because there was no purgeable, coercive sanction that could be imposed and a compensatory fine could not be imposed as Lewis had failed to demonstrate actual loss. As a sentence for the criminal contempt, in an order dated April 29, 2005, the trial court disqualified Boies, Schiller & Flexner from further representing Ni-cal, Bilton, Habie, or any other Nical employee; imposed against Nical two $500 fines; and sentenced Bilton to 90 days incarceration with 60 days of that sentence suspended on the condition that Bilton pay a $500 fine and not further violate any court orders. The contempt and sentencing orders were timely appealed by both Lewis and Nical.

On June 2, 2005, Lewis filed a sworn motion for an order to show cause as to why Nical, Habie, and Bilton should not be held in civil contempt, alleging that Bilton was communicating with Veronica Butler, a Lewis client, and doing more than $100,000 of work at the Eigelberger estate at the direction of Butler. In an order dated June 15, 2005, the trial court denied the motion. Among other things, the trial judge found that a compensatory fíne was not appropriate because the allegations regarding financial damages were “coneluso-ry” and that a coercive sanction was not appropriate because the motion failed to allege what act Nical, Habie, and/or Bilton had not performed “which a contempt order c[ould] coerce them into performing in the future.” The Lewis parties appealed. Although the motion was denied “without prejudice,” we find from the context of the case that the court’s decision that it had no authority to order a coercive sanction was a definitive and final ruling.

The Nical Parties’ Challenge to being held in Indirect Criminal Contempt & to the resulting Sentences

A. Patrick Bilton

The Nical parties first allege that the order holding Bilton in indirect criminal contempt is improper because Bilton was not specifically named in the February 1999 order. The order prohibits “Nical of Palm Beach, Inc.” from contacting, communicating with, interfering with, or soliciting the Lewis parties’ clients. Thus, as Bilton asserts, he is not specifically named in the injunctive order. This does not mean, though, that the order cannot be enforced against him or that he cannot be held in contempt for violating the order. Florida Rule of Civil Procedure 1.610(c) specifically provides that “[ejvery injunction . .■. shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.” See also Ex parte Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110 (1897) (upholding finding of contempt against employee in case where injunction was enteréd against employer and employee was aware of injunction); United States v. Paccione, 964 F.2d 1269, 1274 (2d Cir. 1992) (citing Federal Rule of Civil Procedure 65(d) and recognizing that “[o]rdi-narily, the class of parties subject to an injunction or restraining order include the named parties, officers, agents, servants, employees, attorneys of the named parties and successors in interest to the property that is subject to the injunction or restraining order”); Neshaminy, Water Res. Auth. v. Del-Aware Unlimited, Inc., 382 Pa.Super. 461, 481 A.2d 879, 884 (1984) (stating “where an injunction has issued against a corporation, it may be enforced against officers, agents, representatives, and employees of the corporation who knowingly violate its provisions”). Here, evidence at the contempt hearing established that Bilton was a shareholder and an employee of Nical and was aware of the order enjoining Nical from contacting and communicating with Lewis’s clients.

We similarly reject the Nical parties’ claims that the order holding Bil-ton in contempt must be reversed because the February 1999 order did not unambiguously prohibit contact with White and the evidence was insufficient to show Bilton’s actions amounted to interference. First, while Steve White was not included on Lewis’s list, the Town of Palm Beach was. White testified that he met with Bilton after Bilton called to inquire why one of his client’s hedges had been cut back more drastically than others during the post-hurricane clean-up. According to White, Bilton said that he had legal problems with Lewis and it appeared as though the extreme cutting was done because the owner was a Nical customer. Bilton reached out to the Town of Palm Beach and his contact and communication with White was in White’s capacity as a representative of the Town of Palm Beach. Second, there was evidence of “interference” as Lewis testified that he was forced to spend a considerable amount of time and energy speaking with White and his superiors addressing concerns raised by Bilton’s remarks.

B. Nical

The Nical parties insist the trial court erred in holding Nical in indirect criminal contempt of court as a consequence of the issuance of a subpoena to White. The Nical parties make several arguments: one, that Nical could not be held in criminal contempt as there was no evidence that Nical or its officers and/or shareholders had any involvement in its lawyers’ decision to issue the subpoena; two, that the issuance of the subpoena was not in violation of the July 6th order; and, three, that the evidence was insufficient to demonstrate the subpoena was issued with the intent to violate the July 6th order. We find the first of these arguments to be persuasive and thus reverse the order appealed to the extent that it found Nical guilty of criminal contempt based upon the issuance of the subpoena and imposed a $500 fine for such conduct.

This, then, brings us to the trial court’s decision to disqualify the firm of Boies, Schiller & Flexner from further representing Nical, Bilton, Habie, or any other employee, officer or agent of Nical in the matter. The disqualification of the firm was precipitated by evidence at the contempt hearing demonstrating that (1) Ni-cal, Habie, and Bilton were not paying for the legal services provided by the firm; (2) Bilton was married to a firm attorney; (3) Habie was CFO of the firm; and (4) a trust benefiting David Boies’s children had a 25% ownership interest in Nical. The sentencing order stated that the actions of Rash and the law firm throughout the history of the case demonstrated that the law firm’s exercise of independent professional judgment had been “materially limited by the law firm’s own interests” and “the financial ties between employees of the ... law firm and employees of Nical.” The trial court concluded that the firm had violated Rule 4-1.7(b) of the Rules Regulating the Florida Bar and referred the firm to the Bar. According to the trial court, disqualification was necessary to prevent further defiance of the court’s orders in that “Nical and the Boies, Schiller & Flexner law firm already have been warned and reprimanded through prior contempt orders and fines levied upon Ni-cal due in part to the law firm’s intentional conduct.”

The Nical parties contend the decision to disqualify its counsel must be reversed because the trial court lacked the authority to impose such a sanction as a punishment for indirect criminal contempt. We need not decide this issue as the trial court, unquestionably, had the authority to disqualify counsel for litigation misconduct and violation of the rules. See Carnival Corp. v. Beverly, 744 So.2d 489 (Fla. 1st DCA 1999). The Nical parties’ claim that reversal of such sanction is required as neither it nor the law firm was given notice that disqualification was “on the table” is, however, another matter. Due process requires that a person be put on notice that he or she faces sanctions. See Fisher v. State, 840 So.2d 325 (Fla. 5th DCA 2003) (reversing order holding mother in contempt for failing to pay restitution where mother was never put on notice that she, personally, could be subject to sanctions, including contempt). Neither Attorney Rash nor the firm was named in the Lewis parties’ motions for contempt or the court’s orders setting the same for hearing. And, while it is true that such a sanction was referenced in one of two proposed orders filed by the special prosecutor seven days prior to the hearing and mentioned by Lewis during his testimony at the hearing, we find that this was insufficient to put the firm on notice that sanctions, including disqualification, could be imposed against it. Cf. Clare v. Coleman (Parent) Holdings, Inc., 928 So.2d 1246 (Fla. 4th DCA 2006) (noting that while an attorney’s pro hac vice status may be revoked when his misconduct effects the administration of justice, counsel cannot be disqualified without notice and an opportunity to be heard).

Our conclusion in this regard compels us to reverse the trial court’s order to the extent that it disqualifies the Boies, Schiller & Flexner firm from further representing the Nical parties in this, litigation. While we recognize that disqualification of counsel is an “extraordinary remedy,” see Therriault v. Berghmans, 788 So.2d 1119, 1120 (Fla. 2d DCA 2001), having reviewed the extensive record in this case, we cannot agree with the Nical parties’ claim that such a sanction was too harsh and thus an abuse of discretion. See Forbes v. State, 988 So.2d 706, 713-14 (Fla. 4th DCA 2006) (applying abuse discretion standard in reviewing criminal contempt sentence). Our reversal on this issue is without prejudice for the trial court to once again take up the issue of the disqualification of counsel as a sanction after first affording Attorney Rash and the firm notice and the opportunity to be heard.

The Lewis Parties’ Challenge to the Trial Court’s Refusal to Hold the Nical Parties in Civil Contempt

“[Fjines for civil contempt are considered coercive or compensatory.” Politz v. Booth, 910 So.2d 397, 398 (Fla. 4th DCA 2005). Here, the trial court concluded that neither Bilton’s conversation with White nor the issuance of the subpoena could support a finding of civil contempt as neither type of sanction was sustainable:

[I]t is clear that the violations at issue cannot be characterized as ones for indirect civil contempt with a goal that is remedial and for the benefit of the complainants. The alleged violations are predicated upon past conduct, not continuing conduct. Thus, sanctions cannot be imposed for coercion into compliance because there is no continuing conduct for this Court to coerce, nor any sanction which can be eliminated by purging the conduct leading to the contempt.

Later, in its June 15, 2005 order denying the Lewis parties’ next motion for civil contempt involving the contact with Veronica Butler, the trial court also ruled that it had no authority to enter coercive sanctions for the past violation of its orders. The Lewis parties challenge the trial court’s refusal to hold the Nical parties in civil contempt, insisting both coercive and compensatory fines were appropriate for the alleged contempt in the orders appealed.

The Lewis parties argue that a coercive civil contempt sanction was available because (1) civil contempt is appropriate when a sanction or fine can be imposed to coerce not just action, but also inaction, on the part of the contemnor and (2) the imposition of a fine suspended on the condition that the contemnor comply with the court’s orders in the future is an appropriate, coercive sanction for civil contempt. We agree on both counts.

“The same contemptuous conduct may be the subject of both criminal and civil proceedings” and whether a contempt is viewed as civil or criminal turns upon the “ ‘character and purpose’ of the sanctions involved.” Parisi v. Broward County, 769 So.2d 359, 363-64 (Fla.2000) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). “ ‘Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court.’ ” Id. (quoting Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985)). In contrast, a sanction will be considered civil “if it ‘is remedial, and for the benefit of the complainant.’ ” Id. (quoting Bagwell, 512 U.S. at 827-28, 114 S.Ct. 2552). In order for a sanction to qualify as one imposable for civil contempt, it must contain a purge provision that affords the contemnor the opportunity to avoid the sanction. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994).

Nothing in these fundamental principles underlying the distinction between civil and criminal contempt precludes the imposition of a sanction intended to coerce inaction. And, in United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), the Supreme Court itself imposed a suspended fine as a coercive civil contempt sanction for violation of an in-junctive order prohibiting the union and its president from encouraging workers to strike. Many years later in International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 834, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), the Court declined to categorically hold that simply because an order prohibited an act, its violation could not give rise to a coercive civil contempt sanction. Florida’s courts have taken a consistent view, repeatedly recognizing that “[i]f the purpose of the proceeding is to coerce action or non-action by a party, the order of contempt is characterized as civil.” Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977) (emphasis added); see also Andrews v. Walton, 428 So.2d 663, 665 (Fla.1983) (citing this language from Pugliese). And, in Parisi, in the context of a discussion regarding the distinction between a valid coercive fine and a fine that would be criminal in nature, our supreme court wrote “the imposition of a fixed fine that is ‘imposed and suspended pending future compliance’ with the court’s prior orders is considered a purgeable sanction.” 769 So.2d at 365 (quoting Bagwell, 512 U.S. at 829, 114 S.Ct. 2552). We thus hold that a coercive civil contempt sanction in the form of a fine suspended on future compliance with the court’s order was available to the trial court in this case. We affirm the trial court’s denial of any compensatory sanctions based on the evidence presented.

We have carefully considered the other issues raised by the Nical parties and the Lewis parties, but find no error beyond that discussed in this opinion. Accordingly, the orders on appeal are affirmed in part and reversed in part. This cause is remanded for further proceedings consistent with this decision.

Affirmed in Part, Reversed in Part, and Remanded.

WARNER and TAYLOR, JJ., concur.

On Motions for Clarification, Rehearing, Rehearing En Banc & Certification

PER CURIAM.

Following issuance of this court’s opinion, both the Lewis parties and the Nical parties filed motions seeking rehearing, rehearing en banc, and/or certification in this case. Carol and Scott Lewis filed a pro se motion seeking clarification. Having carefully considered the arguments raised, we deny the parties’ motions in all respects. On the matter of the availability of a suspended fíne as a coercive, civil contempt sanction, we acknowledge that the Supreme Court’s approval of such a sanction has been limited to the circumstance where “the conduct required of ... [the contemnor] to purge the suspended fíne was relatively discrete.” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 830 n. 4, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). We believe the actions prohibited by the parties’ prior settlement agreement are sufficiently definite such that a purge provision specifying “discrete” conduct in which the Nical parties must not engage if they are to avoid the suspended fine can be crafted by the trial court.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Kenneth Lee STARLING, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-4549.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Kenneth Lee Starling, pro se, Appellant.
    Kim Fluharty, General Counsel, and Anthony Andrews, Assistant General, Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

The circuit court’s order denying Kenneth Lee Starling’s petition for writ of habeas corpus on the grounds that he should have sought relief by filing a petition for writ of mandamus is REVERSED. Richardson v. Fla. Parole Comm’n, 924 So.2d 908, 910 (Fla. 1st DCA 2006)(stating that inmate may seek review of a Commission order revoking conditional release “by petitions for habeas corpus or mandamus filed in the circuit court.”). Upon remand, Starling should be given an opportunity to amend his petition for writ of habeas corpus to add an allegation that his conditional release was unlawfully revoked based upon the violation of a curfew condition which is imposed for crimes “committed on or after October 1, 1995,” section 947.1405(7)(a), Florida Statutes (2006), and his offense took place several years before that date. See King v. Fla. Parole Comm’n, 898 So.2d 1100 (Fla. 1st DCA 2005).

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


author: HAZOURI, J. GROSS, J.

text:
    PRO-ART DENTAL LAB, INC., a Florida Corporation, Petitioner, v. V-STRATEGIC GROUP, LLC, a Florida limited liability company, Respondent.
    No. 4D06-5016.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Opinion Denying Rehearing June 27, 2007.

      David H. Charlip and Eric A. Jacobs of Charlip Law Group, LC, Hollywood, for petitioner.
    Craig S. Barnett and Cory W. Eichhorn of Greenberg Traurig, P.A., Fort Lauder-dale, for respondent.
   HAZOURI, J.

Petitioner, Pro-Art Dental Lab, Inc. (tenant), filed this petition for writ of cer-tiorari from an opinion of the Broward County circuit court, acting in its appellate capacity, which affirmed a county court final judgment for possession, entered in favor of the respondent, V-Strategic Group, LLC (landlord). We deny the petition, finding that, under the summary procedure of section 51.011, Florida Statutes (2006), the county court properly entered a default against the tenant after disposing of the tenant’s defensive motion.

In April 2006, the landlord filed a complaint in county court to recover possession of the premises which the tenant, was occupying pursuant to a lease, alleging that the parties had agreed that the tenant would vacate in February 2006 or sooner. The complaint alleged that the tenant refused to deliver possession to the landlord. The landlord titled its complaint as one for ejectment. However, the complaint’s allegations describe a suit for possession arising out of a traditional landlord-tenant relationship.

On April 10, 2006, the tenant was served with a copy of the complaint and a “5 day eviction summons,” which provided that the tenant had to serve written defenses within five business days or a default would be entered. Within the five-day period, the tenant filed a motion to dismiss for lack of subject matter jurisdiction and motion to quash service of process. The motions challenged the jurisdiction of the county court and the landlord’s entitlement to use the summary procedure of section 51.011, Florida Statutes (2006).

The trial court denied the motion to dismiss on April 28, 2006. The landlord orally advised the trial court that the tenant had not filed an answer and thus, moved for a default. After the April 28, 2006 hearing, the tenant filed and -served its answer and affirmative defenses, denying, inter alia, that there was an agreement for the termination of the lease. At a hearing on May 1, 2006, the county court granted the landlord’s motion for default and issued 'a final judgment for possession. Within the final judgment, the trial court granted the landlord’s motion for default; found the tenant’s answer was untimely and could not be considered; took the landlord’s factual allegations as true; held the landlord was entitled to immediate entry of a final judgment; entered final judgment in favor of the landlord; and directed the clerk of the court to issue a writ of possession forthwith.

The tenant appealed to the circuit court, which affirmed. Although the landlord titled the complaint as an action for ejectment, the. circuit court found that the county court correctly looked to the allegations of the complaint and determined that it had subject matter jurisdiction under section 88.21, Florida Statutes (2006), pertaining to the removal of a tenant by a landlord. Moreover, the circuit court found section 51.011, Florida Statutes (2006), contemplated that a defendant have only one opportunity to present all available defenses, within five days from the date of service, and thus the trial court was correct not to consider the tenant’s untimely answer and affirmative defenses.

The standard of review applicable to a petition for writ of certiorari filed from a decision the circuit court rendered in its appellate capacity is whether the circuit court denied petitioner procedural due process and whether the circuit court applied the correct law, both expressions of ways in which the circuit court may have departed from the essential requirements of law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 580-31 (Fla.1995).

The tenant contends that the county court lacked subject matter jurisdiction over the landlord’s complaint because the landlord sought and obtained “ejectment” in the county court, but section 26.012(2)(f), Florida Statutes (2006), provides that circuit courts have “exclusive original jurisdiction” over ejectment. However, we agree with the lower court’s and circuit court’s conclusion that the allegations of the complaint raised an eviction claim and not one for ejectment, which gave the county court subject matter jurisdiction over the case under section 34.011, Florida Statutes (2006).

Next, the tenant argues that the entry of default and final judgment, after it filed its answer and affirmative defenses, departed from the essential requirements of law, and that the courts’ interpretation of section 51.011 to create an automatic default was unsupported by Florida law. We disagree.

Section 51.011(1), Florida Statutes (2006), states:

(1) PLEADINGS. — Plaintiffs initial pleading shall contain the matters required by the statute or rule prescribing this section or, if none is so required, shall state a cause of action. All defenses of law or fact shall be contained in defendant’s answer which shall be filed within 5 days after service of process. If the answer incorporates a counterclaim, plaintiff shall include all defenses of law or fact in his or her answer to the counterclaim and shall serve it within 5 days after service of the counterclaim. No other pleadings are permitted. All defensive motions, including motions to quash, shall be heard by the court prior to trial.

§ 51.011(1), Fla. Stat. (2006) (emphasis added). By its plain language, section 51.011(1) requires defendants to file all defenses of law or fact in an answer within five days of being served. Thus, in a summary proceeding, a motion to dismiss does not toll the time to file an answer; the proper method of raising defenses usually asserted in a motion to dismiss is to incorporate them in an answer.

By not filing its answer within five days of being served, the tenant in the instant case waived its additional defenses. Accordingly, after denying the tenant’s motion to dismiss, the trial court properly accepted the allegations in the landlord’s complaint as true and appropriately entered a final judgment for possession in favor of the landlord.

Petition Denied.

WARNER and GROSS, JJ., concur.

ON MOTION FOR REHEARING

GROSS, J.

We deny Pro-Art’s motion for rehearing and write to certify conflict with Crocker v. Diland Corporation, 593 So.2d 1096 (Fla. 5th DCA DCA 1992).

As the panel opinion indicated, this case involves a Chapter 51 proceeding where Pro-Art, a tenant, after being served with a five day eviction summons, filed defensive motions but not an answer. At a hearing, the court denied the motions and the landlord orally moved for a default. Before the default was entered, the defendant filed an answer and affirmative defenses. Three days later, the court granted the landlord’s motion for default and entered a final judgment for possession.

This fact scenario is similar to Crocker. There, a defendant filed a counterclaim for unlawful detainer pursuant to Chapter 82, Florida Statutes (1989), a proceeding subject to Chapter 51 summary procedure. Crocker, 593 So.2d at 1097. Eighteen days after service of the counterclaim, the defendant moved for default due to the plaintiffs failure to file an answer; the defendant noticed the motion for hearing 33 days later. Id. at 1097. On the day of the motion hearing, the plaintiff filed a “motion to dismiss,” which the fifth district characterized as a “defective answer.” Id. at 1100. The trial court denied the motion for default, ruling that the motion to dismiss tolled the time for an answer. On certiorari review, the landlord challenged the trial court’s refusal to enter a default. The fifth district applied Florida Rule of Civil Procedure 1.500(c) to hold that entry of default would have been improper, because the plaintiff had “plead[ed] or otherwise defend[ed]” within the meaning of the rule.

If Crocker and rule 1.500(c) controlled this case, then we would be required to grant the writ; after the court disposed of its defensive motions, but before the entry of a default, Pro-Art filed an answer. Crocker allows an untimely answer, filed outside the time limits of section 51.011, to preclude the entry of a default. However, we read section 51.011 as allowing the entry of a default once the time to answer has expired and the court has disposed of timely-filed defensive motions.,

Section 51.011(1), Florida Statutes (2006), states that “all defenses of law or fact shall be contained in defendant’s answer which shall be filed within 5 days after service of process.” The presence of the two “shalls” in the statute means that such filing is mandatory. The mandatory time limit for filing an answer is a crucial procedural requirement of section 51.011, since it brings the case to issue within 5 days of service, so it can be set for trial. The section does not contemplate defensive motions that toll the time to file an answer, such as a motion to dismiss for failure to state a cause of action; the statute states that “all defenses of law or fact” shall be contained in the answer. The purpose of chapter 51 is to provide for an expedited procedure in certain actions and to avoid the protracted procedural dance that is allowed under the rules of civil procedure.

Significantly, Florida Rule of Civil Procedure 1.010 states: “The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed the statutes governing the proceeding unless these rules [i.e. the rules of civil procedure] specifically provide to the contrary.” Chapter 51 is a “special statutory proceeding” under rule 1.010.

Rule 1.500(c) allows a defendant to file an answer “at any time before a default is entered.” Crocker applies this rule in a Chapter 51 case.

Such an application of rule 1.500(c) would allow, as a matter of routine, the filing of answers after five days of service of process. The practice Crocker condones contravenes the mandatory time limit of section 51.011(1). Rule 1.500(c) does not say that it applies in Chapter 51 actions; it does not therefore “specifically provide” a contrary time limit rule, as is required by rule 1.010 to modify the time for pleading contained in a special statutory proceeding. Therefore, rule 1.500(c) does not apply to allow the filing of an untimely answer in a Chapter 51 proceeding, even one filed before the entry of a default.

WARNER and HAZOURI, JJ., concur.

      . We note that the "defense of lack of jurisdiction of the subject matter may be raised at any time.” Fla. R. Civ. P. 1.140(b) & (h)(2).

      . It is not uncommon that defenses raised in an eviction action — such as failure of a three-day notice or improper service — are raised within the five-day time limit in a pleading called a "motion to dismiss.” Such issues must be "heard by the court prior to trial or the entry of a default. § 51.011(1), Fla. Slat. (2006).

      . The usual time limits for setting a case for trial do not apply to Chapter 51 proceedings. See Fla. R. Civ. P. 1.440(d).


text:
    Calise ROBERTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2089.
    District Court of Appeal of Florida, First District.
    May 9, 2007.
    Rehearing Denied July 18, 2007.
    Calise Robertson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


text:
    Kingsley S. MORGAN, Appellant, v. CINTAS CORPORATION and Cambridge Integrated Services Group, Inc., Appellees.
    No. 1D05-2317.
    District Court of Appeal of Florida, First District.
    May 14, 2007.
    Rehearing Denied July 16, 2007.
    Kingsley S. Morgan, pro se Appellant.
    Kristin L. March, of Alvarez, Sambol, Winthrop & Madson, PA, Orlando, for Ap-pellees.
   PER CURIAM.

The findings in the order of the Judge of Compensation Claims are supported by competent substantial evidence, and it was within her discretion to determine the credibility of the witnesses, weigh the evidence, and resolve any conflicts in the testimony of the witnesses. The order is therefore AFFIRMED.

BARFIELD, BENTON, and POLSTON, JJ., concur.


author: SHEPHERD, J.

text:
    NESS RACQUET CLUB, LLC, etc., et al., Petitioners, v. RENZI HOLDINGS, INC., etc., et al., Respondents.
    No. 3D07-1110.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.

      Richard and Richard, and Dennis Richard, Laurel W. Marc-Charles, Miami, and Michael R. Tolley, for petitioners.
    Arnaldo Velez, Coral Gables; Thomas K. Equels, Miami, for respondents.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   SHEPHERD, J.

Petitioners, Ness Racquet Club, LLC, et al., (Ness),, seek certiorari review of a trial court order denying their motion to discharge a lis pendens filed by Respondent Renzi Holdings, Inc., et al., (Renzi), against property owned by Ness. We grant the petition for certiorari, and order the discharge of the lis pendens effective upon issuance of this opinion.

In July 2005, Renzi affiliate, Renzi Acquisitions, LLC, entered into an agreement with Racquet Club Towers, LLC, to purchase property known as the Racquet Club Property for developmental purposes. On September 3, 2005, Renzo Renzi and Pasquale Renzi each assigned their fifty-percent interest in Renzi Acquisitions to Ness. On September 15, 2005, the sale closed and Ness became the owner and legal titleholder of the property.

On September 13, just two days before the Ness purchase was consummated, a Ness affiliate, Venes Holdings LLC (Venes) executed a “Racquet Club Project Agenda” with yet another Renzi affiliate, “Renzi Development.” For purposes of this petition, the parties treat this “Agenda” as an enforceable agreement. The “Agenda” provides that

Venes Holdings LLC (“Venes”), through its affiliate, Ness Racquet Club, LLC, will be the owner of the land.
* ⅜ *
As compensation for Renzi’s contribution to the Project, the latter will receive a 50% share of the Project’s net profit

The agreement continues that the following development services for the project, all subject to the approval of Venes:

• Act as construction manager for the project.
• Provide the owner a construction budget, for owner’s approval.
• Obtain and guarantee any loans required.
• Substantially complete the project within 24 months of the owner acquiring the property.

Sometime after the Ness closing and the execution of the “Agenda,” differences developed between Venes, Ness and Renzi resulting in Ness terminating Renzi Development. Ness initiated the action below, suing Renzi and its principals, Renzo and Pasquale, for publicly holding out Renzi as owner and legal titleholder of the property, and offering the condominium units being constructed on the property for sale when it had no authority do so. Renzi countered with a three count counterclaim based upon the “Agenda.” Count I seeks injunctive relief “restoring Counterplain-tiffs to their position in charge of construction of the Racquet Club Project;” Count II seeks a declaratory judgment that “the Counterplaintiffs have equitable rights with regard to the Racquet Club Property;” Count III seeks damages for breach of contract.

On March 2, 2006, Renzi filed its first lis pendens against the Property. Shortly thereafter, Renzi voluntarily discharged this lis pendens in the face of a motion to discharge filed by Ness. On June 14, Renzi filed a second lis pendens, again voluntarily discharging when pursued by another motion to discharge. The instant lis pen-dens was filed February 22, 2007, and, according to sworn testimony by Ness representatives, threatens a significant pending financing transaction. On April 27, 2007, the trial court entered an order on Ness’ most recent motion to discharge, that the lis pendens will “automatically dissolve” on June 5, 2007, unless a substantial bond is posted by Renzi on or prior to that date. It appears, unfortunately, that the June 5 deadline follows eight days after Ness’ financing commitment expires.

Lis pendens in Florida is governed by section 48.23 of the Florida Statutes. “Unless the initial pleading shows that the action is founded on a duly recorded instrument, the effect of the filing is limited to one year, and the court has the power to ‘control’ the notice by discharging it, or requiring the party seeking to file a lis pendens to post a bond.” Avalon Assoc. of Delaware Ltd. v. Avalon Park Assoc., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000Xciting § 48.23(2), Fla. Stat.). Here, Renzi concedes that there is no recorded instrument on which it can claim any interest in the property. Its argument is based solely upon the unrecorded agreement executed by it and Venes. This agreement does not support the recording of a lis pendens against the property.

It is well settled that in the absence of a duly recorded instrument, where there is no “direct claim cognizable under the law against or upon the ... property burdened by the lis pendens,” “no lis pendens may be asserted under any conditions against the realty....” Sunrise Point v. Foss, 373 So.2d 438, 439 (Fla. 3d DCA 1979)(quashing order denying motion to discharge lis pendens, as a departure from the essential requirements of law); see also Powerline Dev. Corp. v. Assor, 458 So.2d 305, 306 (Fla. 3d DCA 1984)(a claim which “does not directly affect the reality itself cannot justify the maintenance of a lis pendens upon it”). Although this court has held that “a claim for an equitable lien may support the imposition of a lis pen-dens,” Roger Homes Corp. v. Persant Constr. Co., 637 So.2d 5, 7 (Fla. 3d DCA 1994), Lakeview Townhomes at the Calif. Club, Inc. v. Lakeview of the Calif. Club Homeowners Ass’n, 579 So.2d 290, 291 (Fla. 3d DCA 1991), an equitable lien — the only type of lien for which Renzi could contend on the facts of this case — “does not exist for purely contractual services performed in connection with the sale of real property under normal conditions.” Avalon Assoc. of Delaware, Ltd. v. Avalon Park Assoc., Inc., 760 So.2d 1132, 1135 (Fla. 5th DCA 2000)(citing Carter v. Suggs, 190 So.2d 784 (Fla. 1st DCA 1966)). See also Hansen v. Five Points Guar. Bank, 362 So.2d 962, 964 (Fla. 1st DCA 1978)(“An equitable lien results ... only when the intention to offer the land as security for the debt is clearly apparent.”)(internal quotations omitted). Assuming, as do the parties to this case for purposes of this petition, that the “Agenda” is an enforceable agreement, it is indubitably a service agreement for the breach of which no lien may attach and which will not support the filing of a lis pendens.

The order of April 27, 2007, under review, constitutes a departure from the essential requirements of law. Hallmark Manufacturing, Inc. v. Lujack, Constr. Co., 372 So.2d 520 (Fla. 4th DCA 1979). The lis pendens under review is discharged effective upon the issuance of this opinion.

Certiorari granted.

This opinion shall take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion.

      . An order denying a motion to discharge a lis pendens is reviewable by certiorari. See Joge Invs., Inc. v. Millennium Capital, 724 So.2d 728 (Fla. 3d DCA 1999)(reviewing order denying a motion to discharge a lis pen-dens); Lake Placid Holding Co. v. Paparone, 414 So.2d 564 (Fla. 2d DCA 1982).


author: STONE, J.

text:
    SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D06-3212.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Rehearing Denied Aug. 2, 2007.

      Donald A. Orlovsky of Kamen & Orlov-sky, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for Appellee-Department of Children and Families.
    Wendie Michelle Cooper, Orlando, for Appellee-Guardian Ad Litem.
   STONE, J.

The. Seminole Tribe of Florida (the tribe) appeals an order denying its motion to place K.D., a four-year-old child, pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. (ICWA).

The tribe asserts that the trial court order disregards or misunderstands the mandates of the ICWA by failing to begin with a presumption in favor of the tribe’s preference. We affirm.

K.D. was born prematurely to a Sioux mother who was registered with the tribe. He tested positive for cocaine at birth and was adjudicated dependent. He was placed in a medically licensed foster home in August 2002, with goals of long-term relative care and reunification with the mother. Because of his premature birth, K.D. had stringent medical needs. He was diagnosed with chronic lung disease/bron-chopulmonary dysplasia (BPD) secondary to respiratory distress syndrome, atrial septal defect, retinopathy of prematurity, gastroesophageal reflux (GER), and vocal chord paralysis. Over time, his medical condition showed improvement. In subsequent stages of review, the goal remained reunification.

In late 2004, P.D., a registered Seminole, was confirmed to be KD.’s father, and, as ICWA was implicated, notice to the tribe was given and the tribe intervened.

In December 2005, upon the mother’s substance abuse relapse, the department moved to change the case plan from reunification to long term non-relative care with the foster parents who had cared for him since infancy. Less than two months later, the Seminole Tribe filed its motion to place K.D. pursuant to ICWA.

In the motion, the tribe explains its original support for reunification with KD.’s Native American mother, which it withdrew when she relapsed in mid-September 2005. Upon that occurrence, the “[t]ribe informed all parties that the Tribal Council would consider whether or not to find a Tribal, permanent family for [K.D.].” The tribe made its decision to place K.D. in a tribal family in mid-December, and KD.’s mother supported his placement within the tribe. The tribe also suggested that a permanent decision at this juncture was premature and ran contrary to ICWA’s provisions. The tribe posited that re-visiting permanency after K.D. had spent six months with his tribal family would be a better plan.

After several hearings, and in a fourteen-page order, the trial court found, by clear and convincing evidence, that it considered “all relevant grounds” listed in Florida Statute Chapter 39; ICWA, 25 U.S.C. § 1901 et seq., and particularly, § 1915. Placement of Indian Children (b) Foster Care or preadoptive placements; criteria; preferences and the BIA Guidelines, to deviate from the placement preferences in § 1915: F.3. Good Cause to Modify Preferences.

The trial court also considered case law from different states in finding that the Guardian Ad Litem program, joined by the Department of Children and Family Services, had met its burden to overcome the presumption in favor of the tribe by clear and convincing evidence, as follows:

25. The decision made in the case is based on the above ICWA law along with the BIA Guidelines with regards to the specific facts of this case.
26. This Court is finding that the Guardian Ad Litem Program joined with the Department of Children and Families has shown by clear and convincing evidence as to a finding of good cause as to parts (ii) and (iii) of the BIA Guidelines regarding deviation from placement under ICWA law.
27. The Court finds that [K.D.] has extraordinary physical needs as evidenced by his numerous medical conditions and that a suitable family for placement meeting the preference criteria is unavailable.
28. While the “J Family” [the family put forward by the tribe] is an appropriate home for non-medically needed foster children (and the Court also notes: a wonderful, warm and loving family), they are not a licensed medical foster home.
29. The Court finds by the testimony given, that the “J Family” is unaware of the extent of [K.D.]’s medical conditions .... [and is unprepared and untrained to deal with some of the medical needs]
* * *
32. Due to the “J Family’s” lack of knowledge in the areas described above, and based on the testimony given during the hearing, the Court has concerns about the “J Family’s” ability to know when [K.D.] is having, a symptomatic day....
33. The “Q Family’s” [current foster parents] knowledge of [K.D.]’s medical conditions is due in large part to the amount of time [K.D.] has been with them. He has lived with them from the time he was eight months old until now; almost 4 years.
34. The Tribe intervened in [K.D.]’s case in January, 2005; over a year and a half ago. They never asked for his placement to be changed until this past January, 2006. The reason the Tribe gave was that they had no objection to his placement with the “Q Family” as [K.D.]’s mother was still working towards reunification and taking [K.D.] to tribal events. The Court find this argument lacking. This Court has been on this case since January, 2005. Since that time, the mother has had only supervised visits which she exercised sporadically. In fact, this Court had previously ruled last year that the mother could not have unsupervised visits with [K.D.] until she learned more about his medical conditions. She was not including [K.D.] in any Tribal functions or ceremonies. The Court is counting that time frame as time that the tribe could have been doing a diligent search for an appropriate Tribal placement.
35.The Court wants to make note that this decision is being made on the existing ICWA law and BIA Guidelines. The Court is not addressing the arguments made by the Guardian Ad Litem Program or the ■ Department regarding the Best Interest’s [sic] of the Child standard as an exception to the Federal law (which has not yet been decided on in Florida regarding Native American Children) as the Court is able to make it’s [sic] decision by clear and convincing evidence based on the existing Federal law and BIA Guidelines.

In denying the tribe’s motion, the trial court ruled that placement will remain with the “Q Family” under the goal of long term licensed care, but suggested that upon proper medical training and education for the “J Family,” a visitation schedule be set up for K.D. to have contact with his extended family, if the “J Family” wishes to participate. The court also ordered that K.D. had a need to identify with his tribe and should be afforded every opportunity to do so and that the “Q Family” should make every effort to include K.D. in as many tribal functions and ceremonies as possible and as permitted.

It is apparent from a review of the order that it is founded on the unique medical needs of this child and the court’s concern that the “J Family” was. not sufficiently shown as able to meet those needs.

There is record evidence that although the child has outgrown some of his earlier problems, he continues to be affected by his condition. There was much testimony concerning the training and skills of the foster parents in meeting the child’s special medical needs. There was testimony the current foster family had an advantage in dealing with his special needs because of their ability to recognize the onset of symptoms and in their ability to use a stethoscope to hear faint wheezing, their ability to use a nebulizer, and their knowledge of K.D. based on the time spent with KD.

There are no Florida cases governing application of ICWA under these circumstances, and other states are not even in agreement as to the standard of review when determining whether good cause exists to deviate from ICWA’s placement preferences. In re Adoption of B.G.J., 281 Kan. 552, 133 P.3d 1 (2006) (noting the abuse of discretion review adopted by the supreme courts of Idaho, Alaska, and Arizona, the Kansas Supreme Court found this review to be similar to its substantial abuse of discretion test). The court of appeals in Iowa reviewed an ICWA placement case de novo. In re C.F., 690 N.W.2d 464, 2004 WL 1396159 (Iowa Ct. App.2004).

A hybrid of these approaches, which we deem reasonable, is found in an Alaska case, Adoption of Sara J., 123 P.3d 1017, 1021 (Alaska 2005), to wit:

We review a finding of good cause to deviate from ICWA preferences for abuse of discretion. It would be an abuse of discretion for a superior court to consider improper factors or improperly weigh certain factors in making its determination. Determining whether the superior court’s findings comport with the requirements of ICWA raises a question of law that we decide de novo. We review findings of fact for clear error. A factual finding is clearly erroneous when we are left with a definite and firm conviction that the trial court has made a mistake.

(Citations omitted)

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), is a source of background about ICWA. It indicates that:

[t]he Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes....

Holyfield, 490 U.S. at 32, 109 S.Ct. at 1599-1600. In the statute itself, Congress adopted the point of view that tribes needed their children to survive as viable cultures, finding:

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

25 U.S.C. § 1901.

Section 1915(b), dealing with preferences in placement of Indian children, is considered the “most important substantive requirement that the ICWA imposes on state courts.” Tohono O’Odham Nation v. Superior Court of Fresno County, 2006 WL 3694534 at *14 (Cal.App. Dec.15, 2006). This section mandates preference be given, absent good cause to the contrary, to a member of the Indian child’s extended family; a foster home licensed, approved, or specified by the Indian child’s tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.

In applying the act and guidelines, there is a presumption in favor of placement in line with ICWA’s stated preferences. Clearly, ICWA involves competing interests — the best interests of an Indian child as considered in the overall community and the “extrapersonal context of best interests [referring] to the means, resources, and procedures available and used to preserve and protect the personal best interests of the children and to the Tribal and cultural interests specially involved.” Adoption of Baby Girl B., 67 P.3d 359, 373 (Okla.Civ.App.2003) (emphasis in original). It is in this context that the trial court must evaluate whether there is good cause to deviate.

Congress did not define “good cause” within the statute, a failure that has been interpreted to mean that Congress “explicitly intended to provide state courts with flexibility in determining the placement of an Indian child.” Tohono O’Od-ham Nation, 2006 WL 3694534 at *14. In the absence of an express definition of good cause, the Department of the Interi- or, through the Bureau of Indian Affairs (BIA), promulgated Guidelines for State Courts; Indian Child Custody Proceedings to assist in interpreting and applying the ICWA. In the matter of C.H., 299 Mont. 62, 997 P.2d 776, 780 (2000). While not binding on state courts, the guidelines are considered important. Liza A. v. Superior Court of Fresno County, 2004 WL 2095631 at *9 (CaLApp. 5 Dist. Sept.21, 2004). In pertinent part, the guidelines say,

a. For purposes of foster care, pre-adoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations:
(i) The request of the biological parents or the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.
b. The burden of establishing the existence of good cause not to follow the order of preferences established in subsection (b) shall be on the party urging that the preferences not be followed.

BIA Guidelines, F.3. (emphasis added) In this case, the trial court utilized the appropriate BIA guidelines in interpreting good cause as per section 1915(b), and correctly assigned the burden to the department and the Guardian Ad Litem.

Although the trial court order does not explicitly find that the tribal family cannot meet the child’s needs, it is clear from review of the record that the trial court was concerned about the child’s medical condition and weighed the ability of the competing families to meet those needs. We recognize, as did the trial court, that the “J Family” had many qualifications, including their willingness to be trained to meet the child’s medical needs. Nevertheless, the trial court concluded, on disputed evidence, that the child’s unique needs could not be met by the tribal family.

We cannot conclude that the trial court abused its discretion when the order reflects an understanding of the statutory scheme and there is evidence, albeit conflicting, that there was good cause to deviate from ICWA. We conclude that the trial court did not fail to properly apply ICWA and implicit in the order is the court’s conclusion that the tribal family cannot presently meet the child’s unique needs. Therefore, the order is affirmed.

FARMER and MAY, JJ., concur.

      . Any child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to placement with: (i) a member of the Indian child's extended family; (ii) a foster home licensed, approved or specified by the Indian child’s tribe; (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs. (All emphasis added by trial court)

      . (a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations: (i) The requests of the biological parents or the child when the child is of sufficient age; (ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness; (iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference.

      . We do not adopt Alaska's "clearly erroneous” standard of reviewing fact findings, choosing to apply Florida's abuse of discretion standard to the review of a trial court's finding of good cause to deviate.


text:
    William W. BROWNING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2507.
    District Court of Appeal of Florida, First District.
    June 4, 2007.
    Rehearing Denied July 17, 2007.
    William W. Browning, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(A).

ALLEN, WEBSTER, and BENTON, JJ., concur.