author: PER CURIAM.

text:
    Jesse GUARDADO, Appellant, v. STATE of Florida, Appellee.
    No. SC05-2035.
    Supreme Court of Florida.
    June 28, 2007.
    Rehearing Denied Sept. 10, 2007.

      Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
    Bill McCollum, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

We have on appeal the judgment and sentence of the trial court finding Jesse Guardado guilty of murder in the first degree and imposing a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the convictions and sentences.

Procedural and Factual History

Guardado was indicted on charges of murder in the first degree and robbery with a weapon based on events occurring on or about September 13, 2004, in Walton County, Florida. Guardado pled guilty to both counts on October 19, 2004. Before the penalty phase, Guardado filed several motions that were denied, including a motion to declare Florida’s death penalty unconstitutional. On September 12-15, 2005, a penalty phase jury convened and heard evidence in support of aggravating and mitigating factors.

At the time these crimes were committed, Guardado had served time in prison, having been sentenced to twenty years for the crime of robbery with a deadly weapon in Orange County, Florida, and fifteen to twenty years for the crimes of robbery and robbery with a weapon in Seminole County, Florida. The Seminole County sentences ran concurrent with the Orange County sentence. He was placed on conditional release supervision on January 1, 2003, with the conditional release to expire on February 6, 2014.

Guardado had known the victim of the present crimes, 75-year-old Jackie Malone, since 2003, and had rented places to live from her. Guardado had been a guest in her home, including a few overnight stays when he was between rentals. He received assistance from Ms. Malone on numerous occasions including financial assistance, and she had assisted him in getting the job with the local water treatment plant which he held at the time of the crime. Guardado knew certain things about Ms. Malone, including the fact that she kept some money on hand in her wallet.

On the day in question, September 13, 2004, Guardado wanted to get high and continue his recent crack cocaine binge. Desperate for money to fix his truck and obtain drugs, Guardado decided to rob a local grocery store. His attempted robbery with a knife was thwarted by one of the employees. Still desperate for money, Guardado decided to rob and murder Ms. Malone that night because she lived in a secluded area and because she would open her home to him based on their prior trusting relationship.

Guardado arranged to drive his girlfriend’s vehicle to work for the night shift. He generally maintained a change of clothes in his girlfriend’s car because of the nature of his work at the treatment plant. On this occasion he made sure there were clothes in the car because a hurricane was due to make landfall in a few days. In addition to leaving clothes in the car, Guardado armed himself with a metal “breaker bar.” He next drove to the parking lot at the Wal-Mart in DeFun-iak Springs, where he got a kitchen knife from his disabled truck that was parked there. With both weapons in his possession, he then drove his girlfriend’s car to Ms. Malone’s house.

Ms. Malone had already retired for the night so Guardado continually knocked on her door to awaken her. Guardado identified himself by name when she came to the door. She greeted Guardado, and he told her he needed to use the telephone. When she turned away to allow him to enter the house, he pulled the “breaker bar,” which was hidden behind his back in his pants, and struck her repeatedly about her head. Ms. Malone raised her hands in defense, and then fell to the living room floor. Ms. Malone did not die from the numerous blows with the “breaker bar,” so Guardado pulled the kitchen knife and stabbed her several times, then slashed her throat.

Guardado said he hit her on the head with the “breaker bar” and thought that would have killed her, but it did not, so he hit her several more times. He also said that when she fell on the floor behind the couch it seemed she was not going to die so he stabbed her with the knife, including to the heart, so it would be over. However, Guardado confessed, “It just seemed not to go that way, she would not die.” After beating and stabbing Ms. Malone, Guardado went to her bedroom, looked through her belongings for money and valuables, and took her jewelry box, briefcase, purse, and cell phone.

Dr. Minyard, a forensic pathologist and Chief Medical Examiner for Walton County, testified concerning the cause of death and her review of the autopsy report and photographs. Dr. Minyard testified that Ms. Malone suffered several injuries including (1) at least twelve abrasions, contusions, and lacerations of the skin on the head, neck and face, (2) bruising under the surface of the scalp, (3) a subarachnoid hemorrhage, (4) at least two incised wounds on the neck, (5) five stab wounds to the chest, (6) a fracture of the finger, and (7) incised wounds to the right hand. The evidence further revealed Ms. Malone was conscious at least through the time that Guardado inflicted the stab wound to her heart. Dr. Minyard said the fracture and wounds to Ms. Malone’s hands were consistent with the victim attempting to fend off repeated blows from the breaker bar and her attacker, by reaching or grabbing for the knife.

On September 15, 2005, the jury returned a unanimous recommendation that Guardado be sentenced to death. After the jury’s advisory sentence, Guardado waived a Spencer hearing, and the trial court found his waiver to be voluntary. The trial court stressed however, that Guardado would be offered another opportunity to present additional mitigation before sentencing. The trial court set final sentencing for September 30, 2005, and requested sentencing memoranda from the State and Guardado. The State requested a Spencer hearing despite Guardado’s waiver of such a hearing. On September 30, 2005, over Guardado’s continued assertion of waiver, the trial court held a Spencer hearing, received additional mitigation evidence, and set final sentencing for October 13, 2005.

On October 13, 2005, based on the evidence presented at the penalty phase proceeding and the Spencer hearing, the trial court sentenced Guardado to death for the first-degree murder of Ms. Malone. On the count of robbery with a weapon, Guar-dado was sentenced to thirty years’ imprisonment with the sentence to run consecutive to the murder count.

The trial court made detailed findings on the aggravating and mitigating factors. The court found five aggravating factors: (1) the capital felony was committed by a person under sentence of imprisonment or on conditional release supervision; (2) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (to wit: armed robbery, April 9, 1984; robbery with a deadly weapon, July 6, 1990; robbery, January 28, 1991; robbery with a weapon, January 23, 1991; attempted robbery with a deadly weapon, February 17, 2005); (3) the capital felony was committed while the defendant was engaged in the commission of, or attempt to commit, or escape after committing, a robbery with a weapon; (4) the capital felony was especially heinous, atrocious, or cruel (HAG); and (5) the crime was committed in a cold, calculated and premeditated manner (CCP).

Guardado did not ask the trial court to consider any statutory mitigating circumstances, and the trial court did not find any. The trial court did find nineteen nonstatutory mitigating factors (ten as requested by Guardado, seven additional ones based upon review and consideration of the defense expert at the Spencer hearing, and two that were suggested by the State). The trial court gave the jury’s advisory sentence and recommendation great weight and considered and weighed the aggravating and mitigating circumstances. The trial court found, as did the jury, that the aggravating circumstances outweighed the mitigating circumstances. Guardado raises four issues on this direct appeal, which we address below.

Discussion of Issues

NELSON INQUIRY

Guardado argues the trial court erred by failing to comply with the requirements outlined in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), when he expressly asked the court to remove his court-appointed counsel. Guardado maintains that his continued request to discharge counsel was a request to represent himself and that the trial court’s denial violated his right of self-representation. The State asserts most of Guardado’s complaints were generalized complaints about counsel and did not require a Nelson inquiry, and that other complaints about counsel were meritless as a matter of law, and thus they were properly denied. Additionally, the State argues Guardado never asked to represent himself.

Guardado’s history of self-representation and representation by counsel is a convoluted one. It is clear, however, that the only issue before this Court is whether or not Guardado should have been allowed to represent himself at the Spencer hearing. Guardado was allowed, after proper inquiry by the trial court, to represent himself at the plea hearing. After the guilt phase proceedings were concluded, Guardado, at his own request, was represented by counsel during the presentation of evidence at the penalty phase. We find under the circumstances presented here that the trial court did not err in its ruling on the complaints made by Guardado concerning counsel at the Spencer hearing.

A trial court’s decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion. See Weaver v. State, 894 So.2d 178, 187 (Fla. 2004). Where a defendant seeks to discharge his lawyer on grounds of ineffective assistance, the trial court is required to make a series of inquiries. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988) (quoting Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973)). However, any inquiry by the trial court can only be as specific as the complaints made by the defendant. When the defendant makes generalized complaints about counsel, the trial court need not make a Nelson inquiry. See Morrison v. State, 818 So.2d 432, 441 (Fla.2002); Sexton v. State, 775 So.2d 923, 930-31 (Fla.2000); Gudinas v. State, 693 So.2d 953, 962 n. 12 (Fla.1997).

At the plea hearing, the trial court asked Guardado about appointment of an attorney for the penalty phase. Guardado stated he did not want counsel appointed. At this point Guardado entered his plea of guilty, and the trial court accepted the plea. A date for the penalty phase was set, and the trial court told Guardado that if he changed his mind about the appointment of counsel at any time before the penalty phase, the court would consider any request. Ultimately, counsel was appointed and the penalty phase occurred as scheduled. There was no request by Guardado to discharge appointed counsel prior to the completion of evidence at the penalty phase proceeding.

Guardado testified at the penalty phase, after which the court made certain inquiries directly to the defendant in regards to whether there was any other evidence he knew of at that time that he would like to present. Guardado was hesitant about answering before speaking with his attorneys. After Guardado conferred with counsel, the trial court again inquired if there was any other mitigation evidence he would like to present. Guardado informed the trial court that he had no other evidence.

After the jury recommendation, the trial court discussed the Spencer hearing and the consideration of any further mitigation evidence. Guardado’s counsel advised the court that Guardado was waiving the Spencer hearing and wanted to proceed straight to sentencing. The trial court inquired of Guardado and found his decision to waiver the hearing was done knowingly, voluntarily, and intelligently. The trial court set sentencing for September 30, 2005, and requested sentencing memo-randa from the parties.

However, after receipt of the sentencing memoranda and the State’s request for a Spencer hearing, the trial court held a Spencer hearing on September 30, 2005. Guardado’s counsel again reiterated Guar-dado’s desire not to have a Spencer hearing and his wish to proceed to sentencing. The trial court again inquired of Guardado under oath concerning other mitigation evidence, to which he responded, “I have no knowledge of any further mitigation that I can present.” The proceeding continued and the trial court asked the defendant if he was in fact instructing his attorneys not to present any further mitigation on his behalf. In response to the trial court’s inquiry Guardado began his complaints about penalty phase counsel. Guardado told the trial court that counsel spent less than an hour in actual conference with him before the trial. He constantly asked his attorney for information about the case and did not receive anything. Guardado also stated that when the trial court ruled on his motions, he asked counsel when he would see him again because he needed to speak with him and counsel said he would see him on Monday, the day of trial. Guardado said he had someone call to say he no longer wished counsel to represent him. However, his mother was distraught about this decision so he allowed counsel to proceed against his (Guardado’s) better judgment. In essence, Guardado generally did not like his counsel’s performance. Guardado also made general complaints about the evidence that counsel presented and about counsel’s failure to object to other evidence. In the final analysis, Guardado was complaining that he wanted to be sentenced on that day, that he did not want a Spencer hearing, and that his case was not proceeding in an expeditious manner.

In Morrison v. State, 818 So.2d 432, 440 (Fla.2002), this Court cited to Hardwick and the procedure to be followed when a defendant complains that his counsel is incompetent. We noted that “the trial judge is required to make a sufficient inquiry of the defendant to determine whether or not appointed counsel is rendering effective assistance to the defendant.” Morrison, 818 So.2d at 440 (citing Howell v. State, 707 So.2d 674, 680 (Fla.1998)). However, “as a practical matter, the trial judge’s inquiry can only be as specific as the defendant’s complaint.” Id. (citing Lowe v. State, 650 So.2d 969 (Fla.1994)). We found in Morrison that although Morrison made several requests to replace counsel, the claims “centered principally around Morrison’s dissatisfaction with the amount of communication between him and counsel.” Id. at 441. Furthermore, we noted, “[a] lack of communication, however, is not a ground for an incompetency claim.” Id. Additionally, Morrison “expressed displeasure with counsel’s refusal to provide copies of legal documents and efforts in contacting witnesses.” Id. We found Morrison was not entitled to a Nelson hearing because “[t]hese complaints can best be described as general complaints about his attorney’s trial preparation.” Id.

The record reflects Guardado made several general complaints that did not warrant a Nelson/Hardwick hearing. Guarda-do complained that counsel did not spend a lot of time with him and that he did not receive information about his case. This type of general complaint does not rise to the requisite level to warrant a Nelson/Hardwick hearing. In Sexton v. State, 775 So.2d 923, 931 (Fla.2000), we found defendant’s statement asking for a delay of trial until he could obtain attorneys he could have confidence in merely expressed general dissatisfaction with the trial preparation of his lawyer. We found it was not a sufficient basis to support a contention that his attorney was incompetent. Similarly, in Gudinas v. State, 693 So.2d 953, 961-62 (Fla.1997), the defendant objected to his exclusion from an in-chambers discussion between the attorneys and the trial judge. We found defendant never specifically claimed defense counsel was acting in a legally incompetent manner and thus was essentially making a general complaint about trial strategy, a complaint that did not require a Nelson inquiry. Pursuant to Morrison, Sexton, and Gudinas, a Nelson inquiry is not required where defendant states generalized grievances.

In this case, the record supports the conclusion that the trial court did not abuse its discretion in its handling of Guar-dado’s complaints about counsel. His complaints about counsel occurred at the Spencer hearing, a hearing that he had attempted to waive. Apparently disgruntled by the lack of expediency he desired, Guardado complained that he was “shown a great indifference” by counsel, which is the type of general grievance that does not require a Nelson hearing. Under the circumstances of this case, Guardado’s complaints in total are analogous to a lack of confidence in and dissatisfaction with counsel’s trial strategies and a request for sentencing on that day, complaints which do not require a Nelson hearing. Therefore, the trial court did not abuse its discretion in not conducting a Nelson hearing.

AGGRAVATORS

Heinous, Atrocious, or Cruel Aggravator

Guardado argues that the evidence was insufficient to establish the heinous, atrocious or cruel (HAC) aggravating circumstance and that the trial court erred when it instructed the jury it could consider the HAC circumstance based on these facts. Conversely, the State asserts there is competent, substantial evidence to support the trial court and jury’s consideration and finding of HAC. We agree with the State, and affirm the trial court’s determination that HAC is applicable to this case.

The standard of review this Court applies to a claim regarding the sufficiency of the evidence to support an aggravating circumstance is that of competent, substantial evidence. See England v. State, 940 So.2d 389, 403 (Fla.2006), cert. denied, - U.S. -, 127 S.Ct. 1916, 167 L.Ed.2d 571 (2007). This Court has found competent, substantial evidence to support the HAC aggravator in a number of cases involving brutal beatings. See Dennis v. State, 817 So.2d 741, 766 (Fla.2002) (HAC affirmed where both victims suffered skull fractures and were conscious for at least part of the attack as they had defensive wounds to their hands and forearms); Bogle v. State, 655 So.2d 1103, 1109 (Fla.1995) (HAC affirmed where victim was struck seven times on the head, victim was alive during infliction of most of the wounds, and the last blows caused death); Wilson v. State, 493 So.2d 1019, 1023 (Fla.1986) (HAC affirmed where victim was brutally beaten while attempting to fend off the blows before being fatally shot). We have also upheld the HAC aggravator in cases where the victim has been repeatedly stabbed. See Owen v. State, 862 So.2d 687, 698 (Fla.2003) (citing Cox v. State, 819 So.2d 705, 720 (Fla.2002)); Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998) (affirming the HAC aggravator where the victim was stabbed or cut eighteen times and was alive when all the wounds were inflicted).

In this case the trial court found the capital felony was especially heinous, atrocious, or cruel pursuant to section 921.141(6)(h), Florida Statutes (2004). The trial court said:

[TJhis murder was indeed a conscienceless, pitiless crime, which was unnecessarily torturous to the victim. The evidence establishes beyond a reasonable doubt that the defendant administered a savage attack on Ms. Malone first by repeated blows about her head and limbs with a metal bar, which she tried to fend off and sustained a finger fracture; that the defendant observed Ms. Malone still alive and lying on the floor despite that flurry of blows; that the defendant then mindful of his previous prison job slaughtering cattle, took out a kitchen knife that he brought with him and twice slashed Ms. Malone’s throat and stabbed her (including the fatal stab to her heart) while she grabbed for the knife further trying to fend off or fight her attacker. The defendant admitted the facts concerning the crime.

The record supports this determination.

Guardado confessed that he killed the victim. The autopsy revealed the victim was beaten about the head several times, stabbed repeatedly (including a mortal wound to the heart), and her throat slashed. Specifically, the medical examiner testified the victim had “multiple abrasions, contusions and lacerations of head and face.” There were twelve lacerations to the head, five stab wounds to the chest and two incise wounds to the neck. The examiner also testified there were incise wounds to the victim’s right hand, the type that happens when “the victim tries to grab the assailant’s weapon and in so doing, is cut with the sharp blade.” The medical examiner said she believed the victim was conscious during the attack because “she does have the defense wounds on her hands,” indicative she was “still conscious enough to try to grab the assailant’s weapon.” This evidence supports the trial courts finding of HAC.

Contrary to Guardado’s assertions, the victim did not lose consciousness quickly after the initial blows to her head. The defensive wounds are indicative of consciousness up to the time of the fatal stab wound to the heart. Under similar circumstances, we have affirmed findings of HAC where defensive wounds revealed awareness of impending death. See, e.g., Boyd v. State, 910 So.2d 167, 191 (Fla. 2005) (finding of HAC affirmed where victim was repeatedly stabbed and evidence revealed victim was alive and conscious for some of the attack and was struggling with her attacker). More recently in Reynolds v. State, 934 So.2d 1128, 1156 (Fla.2006), cert. denied, — U.S. —, 127 S.Ct. 943, 166 L.Ed.2d 721 (2007), we noted with approval the fact that the medical examiner’s testimony established the victims had defensive wounds indicating consciousness during some part of the attack. Furthermore, “we have upheld the application of HAC even where ‘the medical examiner determined the victim was conscious for merely seconds.’ ” Id. (quoting Francis v. State, 808 So.2d 110, 135 (Fla.2001)).

The trial court properly found HAC under the facts of this case, and the trial court properly instructed the jury on this aggravating circumstance.

Cold, Calculated and Premeditated

Guardado next argues the evidence was insufficient to establish the cold, calculated and premeditated (CCP) aggravator and that the trial court erroneously instructed the jury it could consider the CCP aggravator under these facts. Conversely, the State asserts there is competent, substantial evidence to support the trial court’s finding of CCP. This Court has noted that to support the CCP aggra-vator, a jury must find (1) that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic or a fit of rage (cold); (2) that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) that the defendant exhibited heightened premeditation; and (4) that the defendant had no pretense of moral or legal justification. See Buzia v. State, 926 So.2d 1203, 1214 (Fla.) (citing Jackson v. State, 648 So.2d 85, 89 (Fla.1994)), cert. denied, — U.S. —, 127 S.Ct. 184, 166 L.Ed.2d 129 (2006).

In this case, the CCP aggravator was proven beyond a reasonable doubt. The evidence reveals Guardado was desperate for money for drugs and to fix his vehicle. He first attempted to rob a local grocery store. When that robbery was thwarted by the victim, Guardado arranged to drive his girlfriend’s vehicle to work for the night shift. Guardado knew he had a change of work clothes in the car because of the nature of his work at the water treatment plant and because a hurricane was expected to strike the area in the near future. Guardado told the police that he chose Ms. Malone to murder and rob that night because of the “secluded location of her home,” and because she would open her home to him (even at night) due to their prior relationship. Before going to Ms. Malone’s house, Guardado armed himself with the kitchen knife and a “breaker bar” to use as the murder weapons. Guar-dado said in his confession that “he knew what he was going to do when he drove to the victim’s home.” When he was asked if he planned to kill Ms. Malone he responded, “Yes, and get the money.” These facts clearly show that the murder was the result of cool and calm reflection, with a careful plan, with the purpose of robbing the victim of her money so that the defendant could get high on drugs and fix his vehicle.

Contrary to Guardado’s assertions that his drug use negates CCP, we have concluded that a chronic drug abuser can act “acted according to a deliberate plan,” where the evidence shows he “was fully cognizant of his actions on the night of the murder.” Robinson v. State, 761 So.2d 269, 278 (Fla.1999). In Robinson, the victim was beaten and then stabbed by a chronic drug abuser. Similarly to this case, Robinson confessed he stole the victim’s property to pawn for money to purchase drugs. See Robinson, 761 So.2d at 271. The trial court found the CCP aggra-vator, and we affirmed without discussion. In this case, there is likewise no evidence to support a conclusion that Guardado’s drug use robbed him of the ability to plan and execute this murder. We therefore affirm the trial court’s determination that the CCP aggravator is applicable to this situation.

Ring Issue

Guardado argues the trial court erred in denying his motion to dismiss because the death penalty statute is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Guardado asks this Court to reconsider its position in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002) and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), because Ring represents a major change in the law. The State argues that this Court has repeatedly rejected Ring claims and that Guardado is asking this Court to reconsider Bottoson and King in general and not based on the specifics of his case. The State maintains there was no violation of Guardado’s Sixth Amendment right to a jury trial because he pled guilty to the charges, and Guarda-do had a jury in the penalty phase that unanimously recommended death. We deny relief based on precedent from this Court and based on the fact that one of the aggravating circumstances found in this case is a prior violent felony.

In numerous cases that have been decided since the Ring decision, this Court has rejected similar arguments that Florida’s death penalty statute is unconstitutional based on Ring. See Marshall v. Crosby, 911 So.2d 1129, 1134 n. 5 (Fla.2005). In addition, this Court has repeatedly found that the prior violent felony aggravator takes a case outside the scope of Ring. See Marshall, 911 So.2d at 1135 & n. 6; see also Smith v. State, 866 So.2d 51, 68 (Fla.2004) (denying relief on a Ring claim and noting that one of the aggravating factors present in the case was a prior violent felony); Johnston v. State, 863 So.2d 271, 286 (Fla.2003) (finding that the existence of a prior violent felony conviction satisfies the constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt).

Guardado is not entitled to relief based on the Ring decision.

Sufficiency of the Evidence

Guardado has not raised sufficiency of the evidence to support his conviction in this case. However, the State asserts this case is an exception because Guardado waived any claim based on the sufficiency of the evidence by entering a guilty plea and stipulating to the factual basis. Notably, this Court has held that although a defendant has not challenged the sufficiency of the evidence to support the murder conviction, “we have the independent duty to review the record in each death penalty case to determine whether competent, substantial evidence supports the murder conviction.” Buzia v. State, 926 So.2d 1203, 1217 (Fla.2006). Moreover, “ ‘[w]hen a defendant has pled guilty to the charges resulting in a penalty of death, this Court’s review shifts to the knowing, intelligent, and voluntary nature of that plea.’ ” Tanzi v. State, 964 So.2d 106, 121 (Fla.2007) (quoting Winkles v. State, 894 So.2d 842, 847 (Fla.2005)).

The record reflects Guardado pled guilty to the charges and elected to waive the reading of the factual basis for each charge. However, the State read the factual basis for the charges from the indictment and Guardado did not object to any of the facts. Additionally, during the plea colloquy, Guardado expressed an understanding of the plea and the possibility that he could be given the death penalty. Furthermore, Guardado testified at the penalty phase regarding his crimes and essentially admitted his guilt. Accordingly, there is competent, substantial evidence in the record supporting Guardado’s conviction for first-degree murder.

Proportionality

Although Guardado has not raised this issue, this Court “conducts a review of each death sentence for proportionality, regardless of whether the issue is raised on appeal.” England v. State, 940 So.2d 389, 407 (Fla.2006); see also Fla. R.App. P. 9.142(a)(6). In deciding whether a death sentence is proportionate, this Court must consider the totality of the circumstances and compare the case with other similar capital cases. See Sexton v. State, 775 So.2d 923, 935 (Fla.2000). This analysis “is not a comparison between the number of aggravating and mitigating circumstances.” Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Instead, this Court must look to the nature of and the weight given to the aggravating and mitigating circumstances. For purposes of proportionality review, this Court accepts the jury’s recommendation and the trial judge’s weighing of the aggravating and mitigating evidence. See Bates v. State, 750 So.2d 6, 12 (Fla.1999).

In this case, the trial court gave the jury’s advisory sentence and recommendation great weight. The trial court found five aggravators, including prior violent felony, HAC and CCP; no statutory mitigators; and nineteen nonstatutory mitigators, including the entry of plea, cooperation with the authorities, a good jail record, addiction to cocaine, could counsel other inmates about making better choices, and remorse. The trial court and the jury found the aggravating circumstances outweighed the mitigating circumstances. This Court has found death to be the appropriate penalty in other cases involving similar aggravating and mitigating circumstances. See e.g., Duest v. State, 855 So.2d 33 (Fla.2003) (finding death sentence proportionate where victim was stabbed multiple times and the trial court found several aggrava-tors including prior violent felony and HAC, no statutory mitigators and twelve nonstatutory mitigators, including a history of drug and alcohol abuse, willingness and ability for rehabilitation, lack of intent to kill, and a physically and mentally abusive childhood); Morrison v. State, 818 So.2d 432 (Fla.2002) (finding death sentence proportionate where the victim was stabbed several times and the trial court found several aggravators including prior violent felony and HAC; no statutory mitigators; and eight nonstatutory mitigators, including good jail conduct, cooperation with the police, alcohol and cocaine abuse, and only borderline intellectual ability).

This Court found the death penalty proportionate in a recent case where similar aggravators and two statutory mitigators were found. See Buzia v. State, 926 So.2d 1203 (Fla.2006) (finding death sentence proportionate where the victim was beaten and the trial court found several aggrava-tors including prior violent felony, HAC, and CCP plus two statutory mitigators and seven nonstatutory mitigators). In Buzia we said both the HAC and CCP aggrava-tors are “two of the most serious aggrava-tors set out in the statutory sentencing scheme.” Buzia, 926 So.2d at 1216 (quoting Larkins v. State, 739 So.2d 90, 95 (Fla.1999)). Both of these serious aggra-vators are applicable in this case.

In sum, we find the factual circumstances and the nature and weight given to the aggravating and mitigating circumstances in this case demonstrate that the sentence of death is proportional to other murder cases involving similar factual circumstances and similar aggravating and mitigating circumstances.

Conclusion

For all of the reasons expressed above, we affirm the judgments and sentences, including the sentence of death imposed by the trial court.

It is so ordered.

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

ANSTEAD, J., recused.

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

      . The nonstatutory mitigating factors and the weight given by the trial court are: (1) defendant entered a plea of guilty to first-degree murder without asking for any plea bargain or other favor in exchange (great weight); (2) defendant has fully accepted responsibility for his actions and blames nobody else for this crime (great weight); (3) defendant is not a psychopath pursuant to expert testimony and would not be a danger to other inmates or correctional officers should he be given a life sentence (moderate weight); (4) defendant could contribute to an open prison population and work as a plumber or an expert in waste-water treatment plant operations should he be given a life sentence (little weight); (5) defendant fully cooperated with law enforcement to quickly resolve the case to the point of helping law enforcement officers recover evidence to be used against him at trial (great weight); (6) defendant has a good jail record while awaiting trial with not a single incident or discipline report (little weight); (7) defendant has consistently shown a great deal of remorse for his actions (great weight); (8) defendant has suffered most of his adult life with an addiction problem to crack cocaine which was the basis of his criminal actions (some weight); (9) defendant has a good family and a good family support system that could help him contribute to an open prison population (moderate weight); (10) defendant testified he would try to counsel other inmates to take different paths than he has taken should he be given a life sentence (moderate weight); (11) as a child, defendant suffered a major trauma in his life by the crib death of a sibling (moderate weight); (12) as a child, defendant suffered another major trauma in his life by being sexually molested by a neighbor (moderate weight); (13) defendant has a lengthy history of substance abuse (marijuana and Quaaludes) during early teen years, graduating to alcohol and cocaine and substance abuse treatment beginning about age 14 or 15 (little weight); (14) defendant's biological father passed away before defendant developed any lasting memories of him (little weight); (15) defendant was raised by his mother, whom he always considered loving, thoughtful and concerned, and by a stepfather he later came to respect (little weight); (16) defendant was under emotional duress during the time frame of this crime (little weight); (17) defendant does not suffer a mental illness or major emotional disorder (little weight); (18) defendant offered to release his personal property, including his truck, to his girlfriend (little weight); and (19) defendant previously contributed to state prison facilities as a plumber and in wastewater treatment work (little weight).

      . The record does not clearly reflect under what circumstances or why Guardado changed his mind about representation at the penalty phase. At best the record indicates that Guardado's family wanted him to have counsel and that he acquiesced to their desires.

      . Rule 9.142(a)(6) is entitled “Scope of Review” and reads as follows: "In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellant, v. George AZIZE; Unknown Spouse of George Azize; John Doe, Jane Doe as Unknown Tenant(s) In Possession of the Subject Property # 1; John Doe, Jane Doe as Unknown Tenant(s) In Possession of. the Subject Property # 2, Appellees.
    No. 2D05-4544.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2007.
    Robert M. Brochin of Morgan, Lewis & Boekius LLP, Miami, for Appellant.
    No appearance for Appellees.
    John R. Hamilton of Foley & Lardner, LLP, Orlando, for Amicus Curiae Federal National Mortgage Association.
    Elliot H. Scherker of Greenberg Trau-rig, P.A., Miami, for Amicus Curiae Chase Home Finance LLC.

      William P. Heller of Akerman Senterfitt, Fort Lauderdale, for Amicus Curiae Countrywide Home Loans, Inc.
    Michael Ray Gordon and Kenton W. Hambrick, McLean, VA, for Amicus Curiae Federal Home Loan Mortgage Corporation.
    W. Bard Brockman of Powell Goldstein, LLP, Atlanta, GA, for Amicus Curiae Mortgage Bankers Association.
    April Carrie Charney, Jacksonville, for Amicus Curiae Jacksonville Area Legal Aid, Inc.
   DAVIS, Judge.

Mortgage Electronic Registration Services, Inc. (MERS), appeals the trial court’s dismissal with prejudice of its complaint seeking reestablishment of a lost note and the foreclosure of a mortgage. The trial court determined that MERS was not a proper party to bring the action and dismissed the complaint with prejudice for failure to state a cause of action. We reverse.

On May 27, 2004, George Azize executed and delivered a promissory note and a mortgage as part of the closing in the purchase of real property in Pinellas County. The note listed Aegis Lending Corporation as payee. However, the mortgage given to secure the note identified MERS as the mortgagee. The mortgage further specified that in this capacity MERS was serving as the nominee for the lender, which was identified as Aegis. The mortgage included the following language:

Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

The mortgage also specified, “MERS is the mortgagee under this Security Instrument.”

In February 2005, MERS filed a complaint seeking to reestablish a promissory note and to foreclose a mortgage. The complaint identified the plaintiff as “Mortgage Electronic Registration Systems, Inc. as nominee for Aegis Lending Corporation.” The complaint alleged that Azize was in default of the note and mortgage for failing to make the payment due on September 1, 2004, and all payments due subsequent to that date. In count one of the two-count complaint, MERS alleged that it was the owner of the note and that the note had been lost or destroyed after MERS acquired it. Specifically, MERS alleged that because the note was in its possession when it was lost, MERS was entitled to enforce the note. The complaint also explained that the loss of the note was not due to a transfer by MERS or a lawful seizure. The complaint did not allege the circumstances by which MERS came into possession of the note, specifying only that MERS was the owner and holder of the note. MERS asked the trial court to reestablish the lost note.

In count two, MERS sought foreclosure of the mortgage based on the default by Azize. MERS alleged that it owned the note and mortgage and that the note was secured by the mortgage.

No answer or responsive pleading was filed by Azize. The trial court, however, sua sponte issued an order to show cause why complaint should not be dismissed for lack of proper plaintiff. In this order, the trial court noted that multiple cases were pending in which MERS was seeking foreclosure of mortgages and that, in each case, the plaintiff was either MERS, individually, or MERS acting as nominee for another plaintiff. Because the trial court questioned how MERS could file as plaintiff in the capacity of nominee of another corporation, the order set a show cause hearing to allow MERS to demonstrate that it was a proper party to bring the action.

Although counsel for MERS filed a memorandum of law addressing the general issue raised by the trial court’s order and appeared at the hearing, neither Azize nor anyone on his behalf was present at the hearing. Following the hearing, the trial court dismissed all of the pending cases in which MERS sought mortgage foreclosures, entering a specific order in this case that referred to a much longer general order that addressed the common issue of all the cases. Although many issues were discussed at the hearing and in the general order, this court need not address all of those issues as the case sub judice is limited to the issues presented by the pleadings and addressed by the trial court, which present the question of whether MERS is the owner of the note.

This court reviews a trial court’s decision to dismiss a complaint de novo. Trotter v. Ford Motor Credit Corp., 868 So.2d 593 (Fla. 2d DCA 2004). Similarly, this court reviews findings regarding standing de novo. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175 (Fla. 5th DCA 2001). In most circumstances, the trial court’s dismissal of a complaint for failure to state a cause of action should be without prejudice to the plaintiffs amendment of the complaint to cure the deficiencies. See Wittington Condo. Apartments v. Braemar Corp., 313 So.2d 463, 466 (Fla. 4th DCA 1975) (stating that a pleading’s failure to allege the proper representation is not a basis for a final dismissal until an opportunity to amend has been granted).

The trial court’s decision, as reflected in its general order, is based on its finding that MERS could never, under any circumstances, be the proper plaintiff to bring the foreclosure action. Specifically, the trial court found that because MERS was not the owner of the beneficial interest in the note, even if the lost note was reestablished and MERS proved that it was the owner and holder of the note, MERS could not properly bring the foreclosure action.

We disagree. The holder of a note has standing to seek enforcement of the note. See Troupe v. Redner, 652 So.2d 394 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So.2d 45, 45 (Fla. 4th DCA 2006) (“[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question.”). Furthermore, standing is broader than just actual ownership of the beneficial interest in the note. “The Florida real party in interest rule, Fla. R. Civ. P. 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.” Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1183 (Fla. 3d DCA 1985).

Here, MEItS’s counsel explained to the trial judge at the hearing that, in these transactions, the notes are frequently transferred to MERS for the purpose of foreclosure without MERS actually obtaining the beneficial interest in the note. Although the complaint does not allege how or why MERS came to be the owner and holder of the note, the trial court’s dismissal was not based on this deficit. Rather, the trial court found that even if MERS was the holder of the note based on a transfer by the lender or a servicing agent, MERS could never be a proper plaintiff because it did not own the beneficial interest in the note. This was an erroneous conclusion.

MERS alleged that it is the owner and holder of the note and mortgage, and that allegation has not been contested by responsive pleading. Assuming that the complaint properly states a cause of action to reestablish the note and that MERS can show prima facie proof of such allegations, MERS would have standing as the owner and holder of the note and mortgage to proceed with the foreclosure. We also note that the trial court’s conclusion that MERS further lacked standing because one corporation cannot serve as the agent for another corporation is incorrect. See 2 Fla. Jur.2d Agency and Employment § 3 (2005). Although the trial judge was particularly concerned about MERS’s status as nominee of Aegis, in light of the allegations of the complaint, the language contained in the note and mortgage, and Azize’s failure to contest the allegations, the issue of MERS’s ownership and holding of the note and mortgage was not properly before the trial court for resolution at this stage of the proceedings. Accordingly, we reverse the dismissal and remand for further consideration.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . The same trial court order of dismissal was filed in twenty separate mortgage foreclosure actions.

      . Since the trial court did not base its ruling on this issue, we offer no opinion as to whether the complaint fails to properly plead a cause of action without this information being alleged.

      . MERS’s counsel explained to the trial court at the hearing that notes such as the one executed in this case are frequently sold on the secondary mortgage market and then often sold again to investors, such as insurance companies or mutual funds. As such, technically, there may be several owners of the beneficial interest in a note. Additionally, to facilitate the handling of these transactions, the owners contract with a servicing agent to collect the payments and distribute the proceeds to the owners. MERS's counsel advised the court that such collection agents have been determined to have standing to seek enforcement of such notes for the benefit of the owners. See Greer v. O'Dell, 305 F.3d 1297 (11th Cir.2002).


author: VAN NORTWICK, J.

text:
    James COURTS, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D06-0012.
    District Court of Appeal of Florida, First District.
    July 31, 2007.

      Cindy Huddleston and Anne Swerlick of Florida Legal Services, Inc., Tallahassee; Andrea Costello of Southern Legal Counsel, Inc., Gainesville, for Appellant.
    Tracy Lee Cooper, Assistant General Counsel, Agency for Health Care Administration, John Slye, Acting General Counsel, Department of Children and Families, and Garnett Chisenhall, Assistant Attorney General, Tallahassee, for Appellee. .
   VAN NORTWICK, J.

James Courts appeals a hearing officer’s final order upholding the action of the Florida Agency for Health Care Administration (AHCA) which eliminated his previously awarded two weeks of 24-hour companion care and denied his request for an additional two weeks of 24-hour companion care- services provided to him under a Medicaid waiver program. Appellant contends that AHCA erred by refusing to provide the 24-hour care that'it had provided in the past without providing an adequate explanation for the change in policy. We agree. When AHCA substantially reduced the companion care provided to appellant, contrary to the requirements of Florida law it changed its existing non-rule based policy without adequate explanation and without the adoption of an agency rule. Accordingly, under this court’s precedent in Brookwood-Walton County Convalescent Center v. Agency for Health Care, Administration, 845 So.2d 223, 229 (Fla. 1st DCA 2003), we reverse the final order under review and remand for further proceedings consistent with this opinion.

“The Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. § 1396, is a cooperative federal-state program designed to allow states to receive matching funds from the federal government to' finance necessary services to qualified low-income individuals.” Esteban v. Cook, 77 F.Supp.2d 1256, 1259 (S.D.Fla.1999); see also Russell v. Agency for Persons with Disabilities, 929 So.2d 601, 602 (Fla. 1st DCA 2006); Harris v. McRae, 448 U.S. 297, 308-09, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). “[T]he purpose of Congress in enacting Title XIX was to provide federal assistance for all legitimate state expenditures under an approved Medicaid plan.” Harris, 448 U.S. at 308-09, 100 S.Ct. 2671 (citations omitted). The guidelines for the Medicaid program ■- are set forth in the federal statutes and regulations and are adopted into specific state laws and rules in each state. 42 U.S.C. § 1302. In each state, a “single state agency” is responsible for administering the Medicaid program. 42 C.F.R. § 481.10. In Florida, AHCA is designated as the Florida state agency authorized to make payments to qualified providers for medical assistance and related services on behalf of eligible individuals. See § 409.902, Fla. Stat. (2005); see generally, Russell, 929 So.2d at 602-03.

Under the Home and Community Based Waiver Program, a part of Medicaid, individuals who would otherwise be cared for in nursing homes or other institutions can receive services in their own home or home-like settings. J.M. v. Fla. Agency for Persons with Disabilities, 938 So.2d 535, 537 n. 1 (Fla. 1st DCA 2006); see also Cramer v. Chiles, 33 F.Supp.2d 1342, 1347-49 (S.D.Fla.l999)(discussing history of waiver program). The Medicaid Act provides that states may apply to the Centers for Medicaid and Medicaid Services (CMS), a division of the United States Department of Health and Human Services, to participate in waiver programs which permit states to include, as medical assistance, the cost of home or community-based services without which individuals could not remain in their homes and would be institutionalized. 42 U.S.C. § 1396n; 42 C.F.R. § 435.217,

In chapter 381, Florida Statutes (2005), the legislature has expressed Florida’s public policy with respect to providing community-based services to individuals, like appellant, who have sustained a brain or spinal cord injury. The Department of Health (DOH) administers “a coordinated rehabilitation program” designed to allow residents with moderate-to-severe brain or spinal cord injuries “to return to an appropriate level of functioning in their community.” § 381.7395. As part of its duties, DOH is directed to implement “a program of long-term community-based supports and services for individuals who have sustained traumatic brain or spinal cord injuries.” § 381.795(2). The legislative purpose “is to prevent inappropriate residential and institutional placement of these individuals, and promote placement in the most cost-effective and least restrictive environment.” § 381.795(1).

Presumably to carry out the legislative intent to aid individuals with brain and spinal cord injuries, Florida participates in a Medicaid waiver program which would allow these individuals to remain in their homes rather than be institutionalized. Pertinent to this appeal, the record here reflects that AHCA applied to renew its participation in the Brain and Spinal Cord Injury Waiver Program (BSCIP) effective on July 1, 2002. The waiver was to remain in effect until June 30, 2007. In its waiver application, AHCA elected to provide “adult companion services,” which are defined in the waiver application, as follows:

Non-medical care, supervision and socialization, provided to a functionally impaired adult. Companions may assist or supervise the individual with such tasks as meal preparation, laundry and shopping, but do not perform these activities as discrete services. The provision of companion services does not entail hands-on nursing care. Providers may also perform light housekeeping tasks which are incidental to the care and supervision of the individual. This service is provided in accordance with a therapeutic goal in the plan of care, and is not purely diversional in nature.

AHCA did not elect to provide “respite care,” which the application defined as “[sjervices provided to individuals unable > to care for themselves; furnished on a short-term basis because of the absence or need from relief of those persons normally providing the care.” The record reflects that DOH administers the BSCIP waiver program, including notifying participants of any adverse actions.

The appellant is a 59-year-old male who was rendered a quadriplegic in an accident in 1995. The appellant is not capable of moving himself from his home without assistance and, therefore, cannot be left alone at home due to the risk of an emergency such as a fire. The appellant also requires assistance with personal hygiene, eating, repositioning, taking medication, and other daily activities. It is undisputed that, without assistance with these activities, the appellant would not be able to live in his home and would be forced to enter an institution.

Appellant has been enrolled in the BSCIP waiver program since 2001. The appellant’s care plan for the plan year starting on July 1, 2002, and ending June 30, 2003, provided him with 50 hours of companion care per week for 52 weeks plus 236 hours of companion care on an as needed basis. The appellant testified at the hearing that the extra 236 hours were provided so that his wife could care for her terminally ill father in Pennsylvania. In the special funding request for the additional hours of companion care, the appellant’s ease manager found that the extra hours were “essential to ensure the client’s health, and/or is necessary to prevent regression, and/or inappropriate or more costly placement or institutionalization” and that the seryices were “the most efficient and effective means ... to resolve the situation.” The appellant’s care plan for the July 1, 2003, to June 30, 2004, plan year was the same. The appellant’s plan for the July 1, 2004,.to June 30, 2005, plan year provided 50 hours of companion care per week for 52 weeks plus 20 hours of additional companion care as needed per month. Prior to signing this plan, the appellant requested an additional two weeks of 24-hour as-needed care.

Contrary to the construction of the Medicaid waiver by AHCA and DOH for the plan years 2002/2003, 2003/2004 and 2004/2005, on April 29, 2005, DOH advised appellant by letter that his plan was not in compliance with state Medicaid guidelines because those guidelines only permit six hours of companion care per day and do not permit “around the clock care.” Thus, AHCA reduced appellant’s companion care from 50 hours per week to 42 hours per week, eliminated the two weeks of 24-hour as-needed care, and denied his request for an additional two weeks of 24-hour care. In a subsequent letter, DOH advised appellant that these hours were “not medically necessary, and respite care is not covered under the Traumatic Brain and Spinal Cord Injury Waiver.” Appellant requested a Medicaid fair hearing pursuant to 42 C.F.R. § 431.200. See also Fla. Admin. Code R. 65-2.042.

At the hearing, Dr. Irvin, the appellant’s doctor, testified and submitted a letter in support of his testimony. He wrote that in the past when the appellant was unable to obtain home care in his wife’s absence, the appellant ended up in hospitals and nursing homes and suffered severe deterioration of his 'condition. While at a nursing home on such an occasion, the appellant developed severe decubitis ulcers which caused sepsis and a several-week hospitalization. Dr. Irvin testified that the appellant’s risk of infection and other complications increases when he is institutionalized or hospitalized and that when he gets an infection, “he gets sick very fast and has to be brought into the Emergency Room ... he goes from being fairly healthy for his condition to extremely ill very fast.” He did not testify as to how often the appellant suffered infections, only that the risk increased. After testifying about the dangers posed by hospitalization and institutionalization, the doctor was asked if he had anything to add as to why the services at issue were “medically necessary.” He testified that “if we are going to keep him out of the hospitals and ... nursing homes and keep him at home he is going to require supervision and help.... ”

Mary Brown, employed by DOH as a regional supervisor of the BSCIP waiver program, supervises appellant’s case manager. She testified that she was aware that the appellant’s plans had in the past provided 24-hour companion care and that those plans had been approved. She testified that she reviewed the plan at issue and forwarded it to the program administrator, Ms. Russell, for approval. She also testified that she was instructed by Ms. Russell to “bring the plan into compliance” by eliminating the 24-hour care. She testified she was told that the guidelines do not provide for 24-hour respite care.

At the hearing, the deposition of Ms. Russell, the DOH program administrator responsible for the BSCIP waiver program, was introduced into evidence. She testified that DOH is responsible for the fiscal integrity of the program and that AHCA is responsible for promulgating rules related to the waiver program. She was then in the process of preparing a handbook that would be promulgated into a rule. She expressed her opinion that the maximum amount of services that an individual could receive under the waiver was six hours per day. At the time of the hearing, this limit was in effect and had been put into the AHCA billing system.

The hearing officer entered a final order affirming the denial and ruling that, although there was at present “no limit on the amount of [companion services] hours an individual can receive,” because appellant’s 24-hour care was being used to allow his wife to attend to family matters, those services constituted respite care which is not approved under the waiver application. This appeal followed.

As we read the record before us, it is undisputed that, with respect to the care plan authorized for appellant, starting in the 2002/2003 plan year and through the proposed 2004/2005 plan year, AHCA interpreted the definition of “companion services” under the BSCIP waiver to include 50 hours of companion care to appellant per week for 52 weeks, plus an additional 236 hours of companion care on an as-needed basis when appellant’s wife was required to be out-of-town to care for her ill father. Nothing in the agency’s interpretation of the scope of the companion care provided appellant is contrary to the definition of “companion services” contained in the waiver application. Simply contending that the past interpretation was a mistake and that AHCA had “changed its mind,” see Cleveland Clinic Florida Hospital v. Agency for Health Care Administration, 679 So.2d 1237, 1239 (Fla. 1st DCA 1996), is insufficient. Further, it is undisputed in this record that the additional companion care hours were “essential to ensure [appellant’s] health, and/or ... necessary to prevent regression, and/or ... more costly placement or institutionalization.” Although AHCA asserts that the change to limit companion care to six hours per day was made to assure compliance with the waiver application, and that DOH’s previous construction was mistaken, the record reflects that the change was made because of billing limits in the agency’s computer system and in response to budgetary problems at DOH.

While AHCA’s decision with respect to appellant’s plan under the BSCIP waiver is not “an agency statement of general policy,” and thus not a “rule” as defined in section 120.52(15), Florida Statutes (2005), in interpreting the definition of “companion services” under the waiver application to include the companion care authorized appellant from June 2002 through June 2005, AHCA was applying an agency policy. When in 2005 AHCA changed its interpretation of “companion services” as applied to appellant, it abruptly changed its policy without explaining the basis of its changed policy.

In Brookwood-Walton County Convalescent Center v. Agency for Health Care Administration, AHCA denied two Brook-wood nursing homes interim rate increases which would have allowed recovery of increased liability insurance premiums. The decisions were based upon AHCA’s interpretation of provisions in a Medicaid health insurance manual. 845 So.2d at 228. As to the Brookwood institutions, AHCA construed the provisions in the Medicare manual as not imposing a requirement upon nursing homes to purchase liability insurance. AHCA determined that such construction constituted a “standard” for reimbursement under Medicaid and supported denial of an interim rate increase. Id. Brookwood introduced evidence, however, that AHCA had granted the requests of other nursing homes for interim rate increases as a result of increased liability insurance premiums. Id. Athough AHCA attempted to justify such inconsistent precedent as a “one time event” and a “mistake,” id., this court reversed AHCA’s order, explaining that the agency’s “unexplained, inconsistent policies are contrary to established administrative principles and sound public policy.” Id. at 229. Further, this court has held that, if an agency changes a non-rule-based policy, it must either explain its reasons for its discretionary action based upon expert testimony, documentary opinions, or other appropriate evidence, Health Care and Retirement Corp. of America, Inc. v. Department of Health and Rehabilitative Services, 559 So.2d 665, 667-68 (Fla. 1st DCA 1990), or it must implement its changed policy or interpretation by formal rule making. Cleveland Clinic, 679 So.2d at 1242.

We believe that our holdings in Cleveland Clinic and Brookwoodr-Walton are consistent with the legislature’s limitation on agency flexibility and discretion and enhancement of agency accountability and regulatory certainty, underlying the 1996 amendments to chapter 120. § 120.54(l)(a), Fla. Stat. (2005)(requiring rule making whenever it is “feasible and practical”); see Dep’t of Highway Safety & Motor. Vehicles v. Schluter, 705 So.2d 81, 86 (Fla. 1st DCA 1998); see generally W. Hopping, L. Sellers & K. Wetherall, Rule Making Reforms and Non-Rule Policies: A Catch 22 for State Agencies?, 71 Fla. Bar. J. 20, 24-26 (1997). In short, under chapter 120 “an agency cannot change its standards at the personal whim of a bureaucrat.” James P. Rhea & Patrick L. Imhof, An Overview of the 1996 Administrative Procedure Act, 48 U. Fla. L.Rev. 1, 4 (1996).

As appellant argues, there is nothing in the record here which indicates that either the Medicaid law or regulations have changed with regard to the definition of companion care. AHCA asserts that the care now denied appellant is “respite care,” .which was not authorized under the BSCIP waiver. ' For the 2002/2003, 2003/2004, and 2004/2005 plan years, however, the care now denied appellant was considered companion services under AHCA’s interpretation of the BSCIP waiver, and the record contains no evidence that CMS believed that the Florida program was out of compliance with the waiver obligations related to the provision of companion care. It is clear that AHCA’s decision in 2005 to deny the appellant’s benefits, when it had approved those same benefits since 2002, was simply a change in its established policy. Further, it is undisputed in this record that this policy change was made without rule-making or explication in the record. See Cleveland Clinic, 679 So.2d at 1241-42 (absent a “good reason why the agency’s abrupt change of established policy, practice and procedure should be sanctioned,” the agency must implement changed interpretations through rule-making) (citation omitted); Exclusive Inv. Mgm’t & Consultants, Inc. v. Agency for Heath Care Admin., 699 So.2d 311 (Fla. 1st DCA 1997)(refusing to uphold AHCA’s requirement that Medicaid providers contract with the Alcohol, Drug Abuse and Mental Health (ADM) program because, among other grounds, such construction was an unpromulgated change from AHCA’s prior policy). AHCA’s failure to explicate its unpromulgated policy at the hearing is even more egregious when AHCA changes the application of its policy in a particular case. Brookwood-Walton County, 845 So.2d at 229.

Since it is clear that the AHCA policy change was made as to appellant without rule-making or an explication of the new policy during the hearing process, the change is contrary to law. Brookwood-Walton County, 845 So.2d at 229; Cleveland Clinic, 679 So.2d at 1241-42. Thus, we reverse and remand with instructions to reinstate a care plan to provide appellant 50 hours per week of companion care and 236 hours of as-needed 24-hour care.

WOLF and LEWIS, JJ., concur.

      . It is undisputed that, at the time of the hearing in this proceeding, AHCA had not promulgated any rules regarding the administration of the BSCIP program. Subsequently, AHCA adopted rule 59G-13.130, requiring compliance with the “Florida Medicaid Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook, April 2006” (Handbook) effective May 31, 2006.


author: WHATLEY, Judge. CASANUEVA, J.,

text:
    PENINSULAR PROPERTIES BRADEN RIVER, LLC, and Manatee River Corporation, Appellants, v. CITY OF BRADENTON, FLORIDA, Appellee.
    No. 2D06-5302.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2007.
    Rehearing Denied Oct. 5, 2007.

      Monterey Campbell, III of GrayRobin-son, P.A., Lakeland, and Mark S. Bentley and Colleen M. Fitzgerald of GrayRobin-son, P.A., Tampa, for Appellants. -
    William R. Lisch, City Attorney, Bra-denton, and Caleb J. Grimes and Derin Parks of Grimes, Goebel, Grimes, Hawkins, Gladfelter & Galvano, P.L., Braden-ton, for Appellee.
   WHATLEY, Judge.

Peninsular Properties Braden River, LLC, and Manatee River Corp. (“Peninsular”) challenge a final order dismissing their petition for writ of certiorari seeking ■ to overturn the City of Bradenton’s rejec: tion of their application for a planned development project. The trial court dismissed their petition based on a finding that it was untimely filed. The court rejected Peninsular’s reliance on the tolling provision of section 70.51(10)(a), Florida Statutes (2005), of the Florida Land Use and Environmental Dispute Resolution Act (“the Act”) on the ground that the statute is an unconstitutional infringement on the supreme court’s rule-making authority. Art. V, § 2(a), Fla. Const. The trial court erred in finding section 70.51(10)(a) unconstitutional, and we therefore reverse.

This court conducts de novo review of a trial court’s determination that a statute is unconstitutional. See City of Miami v. McGrath, 824 So.2d 143 (Fla.2002). “ ‘[W]e are obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever possible.’ ” Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005) (quoting Fla. Dep’t of Revenue v. Howard, 916 So.2d 640, 642 (Fla.2005)).

The Act, which is set forth in section 70.51, provides an alternative dispute resolution mechanism in quasi-judicial proceedings concerning development orders. It is a voluntary mechanism whereby a special magistrate facilitates resolution of the conflict between the property owner and the governmental entity that issued the development order. § 70.51(17)(a). If a property owner initiates a proceeding under the Act, section 70.51(10)(a) tolls the time for seeking judicial review until the governmental entity acts upon the special magistrate’s recommendation.

After Peninsular obtained approval of its planned development project application from the Bradenton Planning Commission, the City of Bradenton City Council held a hearing on the application and ultimately denied it. Peninsular then initiated proceedings under the Act but soon determined that a settlement with the City was not going to be forthcoming. Consequently, it filed a petition for writ of certiorari in the circuit court. Because that petition was filed more than thirty days after the City’s order denying approval of Peninsular’s application, the City filed a motion to dismiss the petition as untimely pursuant to Florida Rule of Appellate Procedure 9.100(c)(1). The City raised its constitutional challenge to section 70.51(10)(a) in its motion to dismiss.

After a hearing on the City’s motion, the circuit court determined that section 70.51 is both substantive and procedural but found that the procedural provision in section 70.51(10)(a) infringed on the supreme court’s exclusive rule-making authority. However, “there are ... circumstances where a legislative provision which would be deemed procedural if viewed in isolation will nonetheless be upheld against a challenge under article V, section 2(a) because of the connection between that provision and substantive provisions adopted by the legislature.” Cartwright v. State (In re Commitment of Cartwright), 870 So.2d 152, 158 (Fla. 2d DCA 2004). The supreme court has “consistently rejected constitutional challenges where the procedural provisions were intertwined with substantive rights.” Caple v. Tuttle’s Design-Build, Inc., 753 So.2d 49, 54 (Fla.2000).

The intent of the Florida Land Use and Environmental Dispute Resolution Act is to encourage mediation, and that intent is facilitated by the tolling of the time required to file an action in court. Because the procedural tolling provision of subsection 70.51(10)(a) is intertwined with the remainder of the statute, the circuit court erred in finding section 70.51(10)(a) unconstitutional. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

FOSTER, ROBERT A., Associate Judge, Concurs.

CASANUEVA, J., Dissents with opinion.

CASANUEVA, J.,

Dissenting.

At issue is whether section 70.51(10)(a), Florida Statutes (2005), is unconstitutional. This subsection gives a property owner a legislatively crafted right to seek a proceeding before a special magistrate to review either a local development order or a local enforcement action and identifies the time period available to the property owner to seek such review. The statute also provides that “[initiation of a proceeding tolls the time for seeking judicial review of a local government development order or enforcement action until the special magistrate’s recommendation is acted upon by the local government.” Unquestionably, the legislature inserted this tolling provision to encourage property owners to use this alternate review procedure before resorting to judicial action.

The trial court concluded “the tolling provision of the statute is not merely incidental, but rather intrusive, and conflicts with the strict 30-day provision established by the Florida Supreme Court in Rule 9.100(c) by creating a procedural condition that extends the well-established jurisdictional time limits for seeking judicial review.” Accordingly, the trial court held the tolling provision impermissibly trespassed upon the supreme court’s constitutional and exclusive rule-making authority, thus rendering the legislative provision unconstitutional as violative of the Separation of Powers Doctrine. See State v. Raymond, 906 So.2d 1045, 1048 (Fla.2005) (“It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm. This principle is grounded in article V, section 2(a) of the Florida Constitution-”). The majority takes no issue with the trial court’s finding that the tolling provision is procedural — nor do I. See Ong v. Guido Props., 668 So.2d 708, 711 (Fla. 5th DCA 1996) (holding that the tolling provision of a mediation statute violates the doctrine of separation powers and is unconstitutional). The majority then concludes that the procedural aspect of the statute is sufficiently “intertwined” with the substantive portion of the statute to pass constitutional muster. It is with this latter conclusion that I respectfully disagree.

I recognize, along with the majority, that “[tjhere are some substantive statutes that permissibly include procedural elements.” Raymond, 906 So.2d at 1049 (citing Kalway v. State, 730 So.2d 861, 862 (Fla. 1st DCA 1999) (holding that when a statute has procedural elements, the court must then decide whether those elements impermissibly intrude upon the procedural practice of the courts) (emphasis by the court in Raymond)). The supreme court has “consistently rejected constitutional challenges where the procedural provisions were intertwined with substantive rights.” Caple v. Tuttle’s Desigm-Build, Inc., 758 So.2d 49, 54 (Fla.2000). This court has found such intertwining if invalidating the procedural provision would fundamentally alter or disrupt the substantive statutory scheme that the legislature established. Cartwright v. State (In re Commitment of Cartwright), 870 So.2d 152, 162 (Fla. 2d DCA 2004). In my view, removing the procedural aspect of section 70.51(10)(a) does not alter or disrupt the substantive statutory scheme; thus, the procedural aspect is not sufficiently “intertwined” with the substantive portion of the statute, resulting in a conclusion that the legislature has impermissibly taken on the Florida Supreme Court’s exclusive procedural rule-making authority.

Our supreme court considered a similar statute that contained both substantive and procedural components in Jackson v. Florida Department of Corrections, 790 So.2d 381 (Fla.2000). There, the challenged statute regulated the substantive right of indigents to proceed without payment of certain court costs. The statute also contained a procedural component requiring inmates to file copies of documents relating to their prior legal actions before the court could make an indigency determination. See § 57.085(7), Fla. Stat. (1997). Our supreme court decided that the procedural prerequisite conflicted with Florida Rule of Appellate Procedure 9.430 and struck down the copy requirement portion of the statute. The court held: “Under such circumstances, this Court has the authority, perhaps even the duty, to declare the copy requirement portion of the Prisoner Indigency Statute void and state that the judiciary will not comply with it or require that inmates comply with it.” Jackson, 790 So.2d at 385-86. The court left undisturbed the substantive rights the statute created. Id. at 386.

The First District Court of Appeal considered a similar statute, § 57.085, Fla. Stat. (Supp.1996), in Kalway v. State, 730 So.2d 861, 862 (Fla. 1st DCA 1999). Section 57.085 provided indigents the right to proceed in certain cases without the payment of court costs and other fees. In addition to providing this substantive right, the legislation enacted procedural provisions necessary to implement the substantive right. Id. The First District determined the procedural aspects were minimal and did not impermissibly intrude upon the procedural practice of the courts, noting that the procedural components of the legislation did not appear to conflict with any existing court rule or procedure. The court then declared, “[i]If the procedural elements of the statute were found to intrude impermissibly upon the procedural practice of the courts, the legislative provisions would have to give way to the court rules and procedures.” Id.

As a further example, in Caple, 753 So.2d 49, the supreme court reviewed the constitutionality of section 702.10(2), Florida Statutes (1997), which created a substantive right allowing a commercial mortgagor to petition for previously nonexistent remedies, e.g., a stay of an order to continue mortgage payments, by posting a bond. Id. at 54. Coupled with this new statutory right, the legislature shortened certain time periods involved in foreclosure actions. Relying on the House bill analysis, the court determined the shorter time periods for foreclosure actions were needed to protect the rights of the mortgagee. The court held, “the statute creates substantive rights and any procedural provisions are directly related to the definition of those rights.... ” 753 So.2d at 55. In other words, the court found that removing the procedural components would impair the substantive rights created by the statute. Because of this close relationship, i.e., this “intertwining” of the substantive and procedural, the court concluded the legislation was constitutional.

In the instant case, there is no similar relationship.. The tolling provision is not involved in the functioning of the special magistrate’s review proceeding, the substantive right the legislation provides. Invalidating and excising this procedural provision will do no harm to the remainder of the substantive portion pertaining to the special magistrate’s review proceedings. A party can secure review by the special magistrate as well as protect its right to appeal by complying with both the statute and the appellate rules — a procedure that I readily concede may be cumbersome. Nonetheless, this process ensures constitutional compliance.

Aside from examining the intertwining nature of the substantive and procedural portions of this statute, I agree with the trial court that this tolling provision directly contravenes the well-established thirty-day time period for petitioning for certiorari established in Florida Rule of Appellate Procedure 9.100(c). Allowing implementation of the tolling provision in dispute would, in effect, repeal the rule in this context. Given the conflict, this legislative attempt to modify a rule of appellate procedure is constitutionally infirm. I would sever the unconstitutional tolling provision from the statute and adhere to the requirement that petitions for certiora-ri be filed within the court-mandated thirty-day time period.

Although I dissent from the holding that the tolling provision is constitutional, I concur with the majority’s determination that appellants are entitled to proceed because they followed the statute in good faith. A determination that the statute is unconstitutional should, in my view, be applied only prospectively. Bush v. Holmes, 919 So.2d 392 (Fla.2006); Deltona Corp. v. Bailey, 336 So.2d 1163 (Fla.1976); Interlachen Lakes Estates v. Snyder, 304 So.2d 433 (Fla.1973).

      . To secure review by the court, the affected party should, as normal, petition for certiorari within the 30-day limit of Florida Rule of Appellate Procedure 9.100(c), then request a stay while the party pursues the special magistrate procedures outlined in section 70.51(10)(a). This is not unlike the procedure Florida Rule of Criminal Procedure 3.800(b)(2) provides, where this court extends the time to file an appellate brief while the trial court considers a motion to correct a sentencing error.


author: PALMER, C.J.

text:
    James B. WHITE, III, Appellant/Cross-Appellee, v. Barbara B. WHITE, Appellee/Cross-Appellant.
    No. 5D05-3219.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    Rehearing Denied Oct. 1, 2007.

      Steven J. Guardiano, Daytona Beach, for Appellant/Cross-Appellee.
    Horace Smith, Jr., of Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A., Daytona Beach, for Appel-lee/Cross-Appellant.
   PALMER, C.J.

James White (husband) appeals the asset distribution provisions of the trial court’s final dissolution order. Barbara White (wife) cross-appeals, contending that the trial court erred in failing to award her a larger share of the parties’ marital assets. Finding no reversible error, we affirm the trial,court’s final judgment in its entirety.

The husband filed a petition seeking dissolution of the parties’ twenty-three year marriage. The wife filed an answer and counter-petition indicating that she had filed a petition for divorce in West Virginia (the location of the parties’ marital home) and that, in connection with that proceeding, the husband agreed to pay her temporary support in the sum of $12,000 per month as well as her health insurance premiums and medical expenses but that, when the husband contested the jurisdiction of the West Virginia court based on the fact that he had relocated to Florida, the court in the West Virginia dismissed the wife’s petition. The husband then filed his dissolution of marriage petition in Florida. Upon filing his petition, the husband ceased making any temporary payments to the wife.

The husband filed a financial affidavit, claiming annual income of $185,000 and total marital assets of approximately $8.5 million. The wife filed a financial affidavit indicating she was unemployed and in ill health, having been diagnosed with an inoperable brain tumor. She listed no income and estimated that the marital assets totalled in excess of $20 million. She also stated that she had no access to the parties’ financial accounts.

The trial court entered an order awarding the wife $12,000 per month in temporary support. Thereafter, during the course of protracted pretrial discovery, the trial court entered an emergency temporary injunction freezing the husband’s accounts and ordering him to cease dissipating the parties’ marital assets because the husband was engaging in a course of conduct aimed at concealing the extent of the parties’ marital assets. The court further ordered the husband to file truthful financial statements.

During trial, the husband admitted that he did not reveal to the court or to the wife the fact that he had deposited $1 million from the sale of the parties’ business in a non-disclosed bank account. He further indicated he was a signatory on two bank accounts in Ohio which were not disclosed on his financial statement. One account was opened with a $50,000 deposit and the other account received a transfer of $642,000 from one of husband’s three other accounts.

The trial court entered a final dissolution order which essentially granted each party an equal share of the marital assets. The court did not award the wife alimony, but did order the husband to contribute to the wife’s attorney’s fees due to his misconduct during the course of these dissolution proceedings.

In challenging the dissolution order, the husband first argues that the trial court erred in denying his request for a $2 million special equity in his pre-marital business. We find no error.

“A special equity is a vested property interest brought into the marriage or acquired during the marriage because of a contribution of services or funds over and above normal marital duties.” Dyson v. Dyson, 597 So.2d 320 (Fla. 1st DCA 1992). If a spouse claims a special equity in certain property, the burden is on that person to prove the claim. Hay v. Hay, 944 So.2d 1043 (Fla. 4th DCA 2006). Appellate review of a claim for special equity is subject to an abuse of discretion standard. Caruso v. Caruso, 814 So.2d 498 (Fla. 4th DCA 2002).

The trial court did not abuse its discretion in rejecting the husband’s claim for a special equity since the record demonstrates that the claim was essentially based solely upon his testimony regarding the value of his business and, as the trier of fact, the trial court was entitled to find that such testimony lacked credibility. As we held in Escudero v. Escudero, 739 So.2d 688, 692 (Fla. 5th DCA 1999): “Although the court could have found a special equity existed here, it could also have denied such a finding, as it did. The court did not have to believe [the husband’s] testimony, even if unrebutted. [Citation omitted.] [His] credibility was clearly challenged in this proceeding and he had the burden of establishing a special equity.”

The husband next argues that the dissolution order must be reversed because the. trial court failed to properly distribute the parties’ marital assets. We disagree.

The husband first challenges the trial court’s distribution scheme by arguing that the court erred in failing to credit the wife with $612,000 she received as temporary support during the pendency of the dissolution proceeding.

The trial court held that the temporary support funds did not constitute alimony, but instead, distribution of marital assets; however, the court did not place a value representing the wife’s temporary support as an item on its equitable distribution schedule. Importantly, the court similarly did not place a value on marital funds which the husband used to support himself during the course of the instant proceedings in its distribution schedule. The trial court apparently reasoned that the wife’s receipt of $12,000 per month in support constituted the equivalent of the husband’s use of the parties’ marital assets to support himself during the course of these proceedings since the wife’s expert testified that the husband expended in excess of $600,000 in unaccounted for monies during the course of the dissolution proceedings. On this record, the trial court did not err in failing to account for the monies expended by the parties for their monthly expenses since those totals were essentially equivalent.

The husband next argues that the trial court reversibly erred in failing to account for $300,000 in motor vehicles which were purchased by the wife during the course of the dissolution proceedings since the court charged the husband with the value of the vehicles which were in his possession. We again disagree because the wife expressly testified that she used the funds which were distributed to her from the sale of the parties’ business to pay for the purchase of said vehicles. If the trial court had charged the wife for both the funds received from the sale of the parties’ business and the value of the vehicles which she purchased by using such funds then the court would have improperly double counted said assets, thereby improperly decreasing the value of the wife’s distribution award. In contrast, the trial court properly charged the husband with the value of several of his vehicles because the husband was unable to establish the source of the funds which were used to acquire same.

The husband next challenges the fact that the trial court failed to charge the wife with the value of her personal jewelry and furs, yet charged him with his purchase of jewelry for his girlfriend. However, the husband was not charged with the value of his personal jewelry and the husband’s purchase of jewelry for his girlfriend was found by the trial court to constitute dissipation of the parties’ marital assets. The record contains sufficient evidence to support that finding.

The husband next challenges the fact that the trial court failed to set forth in the wife’s equitable distribution schedule $116,000 in loans which the wife gave to family members and the value of cars which the wife purchased for family members during the course of the instant proceedings. In so arguing, the husband again ignores the fact that all of the funds which the wife expended on said loans and cars derived from the temporary support payments she received during the course of this dissolution proceeding.

The husband next argues that the trial court erred in failing to account for sums which the wife testified were held in a Bank of America account and a Behr Credit Union account. However, the husband fails to cite to any portion of the record which supports his claim, and independent review of the record fails to reveal such testimony. As such, the husband has failed to sustain his burden of proving error.

The husband next challenges the trial court’s valuation of the husband’s life insurance policy as being worth $35,344. However, the husband testified that his insurance policy appeared to have a cash surrender value of $35,000, and that he believed that the policy was still in effect.

The husband also claims that the trial court improperly “double-charged” him by crediting him with the value of his Ormond Beach home ($560,000) and for withdrawing $550,000 from his Bank One account since the husband used the funds from his BankOne account to pay for the purchase of the Ormond Beach home and its furnishings. In the dissolution order, the court articulated the basis for its ruling as follows:

The husband withdrew $550,000 from his BankOne account on August 14, 2000. He did advance over $300,000.00 to [his girlfriend] to close on the [Or-mond Beach] house in October 2000, but he has never identified where those funds came from. He has also completely failed to disclose what he did with the $550,000.00 withdrawal. Since he was the only one controlling the accounts and the only one to have those records, his failure to produce the records and failure to explain his actions should not prejudice the innocent wife. These major transactions were clearly made after separation, and he should have known these withdrawals would be subject to judicial scrutiny in the future. Therefore, his failure to maintain complete records under those circumstances is beyond comprehension.

Although the husband testified regarding some of his expenditures, it is clear that the trial court did not find such testimony to be credible.

The husband also claims that the trial court “double-charged” him for the funds which he received from the sale of the parties’ business and the deposit of those funds into his three personal bank accounts. Again, the trial court cannot be held to have improperly “double-charged” the husband when the husband failed to present documentation tracing the source of funds for said accounts.

The husband also argues that the trial court erred in “double-charging” him for receiving in excess of $3 million from the sale of the parties’ business and having substantial sums of money in several marital accounts. He argues that the trial court erred by failing to account for the fact that the source of these known assets derived from the sale of the parties’ business. The burden was on the husband to provide the court with disclosure information which tracked the funds received by him from the sale of the parties’ business to the accounts where same were deposited. The record demonstrates that the husband failed to sustain that burden.

The husband lastly argues that the trial court erred in refusing to find that his inheritance from his mother constituted a non-marital asset. We again disagree.

The burden of proof is on the spouse who wishes to show that an asset acquired during the marriage is not a marital asset. See Deas v. Deas, 592 So.2d 1221, 1222 (Fla. 1st DCA 1992). During trial, when asked what he did with his inheritance funds, the husband responded: “I commingled them with all the rest.... I commingled them with the rest and put them in my checking account.” Based upon this admission of commingling, the trial court did not abuse its discretion in concluding that the husband failed to sustain his burden of proving that his inheritance funds were non-marital property.

On cross-appeal, the wife argues that the trial court abused its discretion by equally distributing the parties’ marital assets, claiming that the court should have awarded her additional assets due to the fact that the husband engaged in egregious misconduct by fraudulently concealing the nature of the parties’ financial holdings and in substantially dissipating marital assets during the course of the parties’ separation.

A trial court’s equitable distribution scheme is subject to appellate review pursuant to an abuse of discretion standard. Nourse v. Nourse, 948 So.2d 903 (Fla. 2d DCA 2007). Here, the trial court did not abuse its discretion in dividing the parties’ marital assets equally because the court adequately addressed the husband’s egregious misconduct by ordering him to pay for all the attorney’s fees incurred by the wife as a result of his misconduct.

AFFIRMED.

SAWAYA, J., and MUNYON, L., Associate Judge, concur.