text:
    Arthur Dennis RUTHERFORD, Appellant, v. STATE of Florida, Appellee. Arthur Dennis Rutherford, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC06-1931, SC06-1946.
    Supreme Court of Florida.
    Oct. 12, 2006.

      Linda McDermott and Martin J. McClain of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

Arthur Dennis Rutherford, a prisoner under sentence of death and an active death warrant, appeals the circuit court’s order denying without an evidentiary hearing his third successive motion for postcon-viction relief and the circuit court’s order dismissing his motion to correct an illegal sentence. Rutherford also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.; art. V, § 3(b)(9), Fla. Const. For the reasons stated below, we affirm the circuit court’s orders and deny Rutherford’s habeas petition.

FACTS AND PROCEDURAL HISTORY

The execution of Arthur Dennis Rutherford is set for October 18, 2006. The execution had been initially set for January 31, 2006, but was stayed by the United States Supreme Court while it considered whether Rutherford could litigate a challenge to Florida’s lethal injection procedures in the federal courts under 42 U.S.C. § 1983. On September 22, 2006, after the stay expired, the Governor rescheduled Rutherford’s execution for the period between October 9, 2006, and October 23, 2006. The warden chose October 18 as the date of the execution.

This Court’s last opinion, issued on January 27, 2006, explains in detail the factual background and procedural history of this case. See Rutherford v. State, 926 So.2d 1100, 1103-07 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006). In 1986, Rutherford was convicted of the first-degree murder of Stella Sala-mon and sentenced to death. Rutherford knew the victim, a 63-year old widow who lived alone, because she had hired him to do odd jobs, one of which was the installation of sliding glass doors. Soon after the installation, the doors had to be replaced because they did not close and lock properly. Mrs. Salamon was not satisfied with Rutherford’s work and expressed uneasiness to a friend about Rutherford’s continued presence at her home. Before this murder,

[djuring the summer of 1985, Rutherford told his friend Harold Attaway that he planned to kill a woman and place her body in her bathtub to make her death look like an accident. Rutherford also told a long-time business associate, Sherman Pittman, that he was going to get money by forcing a woman to write him a check and then putting her in the bathtub. If the woman initially refused to make out the check, Rutherford explained that he would “get her by that arm and she would sign.” It was then that Rutherford bragged that he would do the crime but not the time. About a week after making those statements, Rutherford again told Attaway about his homicidal plan. Rutherford also told his uncle that they could get easy money by knocking a woman Rutherford worked for in the head. Unfortunately, none of these three men took Rutherford seriously enough to report his plans to the authorities.
At 7:00 [on the morning of the murder,] Rutherford and Attaway went to retrieve the old doors from Mrs. Sala-mon’s garage. When they reached the house, Rutherford told Attaway that he had a gun in his van and said, “If I reach for that gun, you’ll know I mean business.” Attaway testified that this was the first time he really believed that Rutherford might actually hurt someone .... While they were loading the doors, Attaway overheard Mrs. Salamon say to Rutherford, “You can just forget about the money.”
Around noon, Rutherford went to see Mary Frances Heaton.... He showed her one of Mrs. Salamon’s checks and asked her to fill it out. Heaton cannot read or write other than to sign her name, so she called for her [fourteen]year-old niece, Elizabeth. Rutherford promised Elizabeth money if she would fill out the check as instructed. Elizabeth filled out the check the way Rutherford told her to, making it payable to Heaton, but she did not sign anyone’s name on it.
Rutherford told Heaton that he owed her money for work she had done for him and asked her to accompany him. He took Heaton to Santa Rosa State Bank, gave her the check, and sent her into the bank to cash it. Because of the blank signature line, the teller refused to cash the check; Heaton returned to Rutherford’s van and told him.
Rutherford responded by driving them to the nearby woods, where he took out a wallet, checkbook, and credit cards wrapped in a shirt, and threw the bundle into the trees. He also signed Mrs. Salamon’s name onto the check, and then went back to the bank. Outside the bank, Heaton watched as Rutherford endorsed Heaton’s name on the check.... Heaton re-entered the bank, and this time she successfully cashed the check and left with $2,000 in one hundred dollar bills. Rutherford gave Hea-ton $500 of those funds, and she in turn gave Elizabeth $5 for filling out the check.
Around 3:00 that afternoon, Rutherford visited his friend Johnny Perritt. He told Perritt that he had “bumped the old lady off’ and showed him $1500 in cash. He wanted Perritt to hold $1400 of that amount for him. Rutherford said that he had hit the “old lady” in the head with a hammer, stripped her, and put her in the bathtub. Perritt refused to take the cash, and his mother later notified the police of Rutherford’s claim to have committed a murder.

Id. at 1103-04 (quoting Rutherford v. Crosby, 385 F.3d 1300, 1302-04 (11th Cir.2004)).

At 6:30 p.m., two neighbors discovered Mrs. Salamon’s naked body floating in her bathtub, which was overflowing with water.

When the crime scene investigators arrived they found three fingerprints on the handle of the sliding door to the bathtub, one fingerprint on the tile wall of the tub, and a palm print on the window sill inside the tub with the fingers up and over the sill as though the person had grabbed it. All of those prints were later identified as Rutherford’s. Blood was spattered on the bathroom walls and floor. According to an expert, the spatter pattern indicated that the blows occurred while Mrs. Sala-mon was sitting or kneeling on the bathroom floor.
Mrs. Salamon’s naked body floated face-up in the water. She had been viciously beaten. There were bruises on her nose, chin, and mouth and a cut on the inside of her lip consistent with a hand being held forcefully over her face. Her lungs showed signs of manual asphyxiation, apparently from someone covering her nose and mouth. Her arms and knees were bruised and scraped, and her left arm was broken at the elbow. Of the three large wounds on her head, two were consistent with being struck with a blunt object or having her head slammed down. The other wound, a puncture that went all the way to the bone, appeared to be from a blow with a claw hammer or screwdriver. Her skull was fractured from one side to the other.

Id. at 1104-05 (quoting Rutherford, 385 F.3d at 1304-05).

On October 2, 1986, the jury found Rutherford guilty of first-degree murder and armed robbery. At the penalty phase, the jury recommended the death penalty by a vote of seven to five, and the trial court sentenced Rutherford to death. This Court affirmed Rutherford’s conviction and sentence and the United States Supreme Court denied his petition for writ of certiorari. Rutherford v. State, 545 So.2d 853 (Fla.), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 341 (1989).

Rutherford vigorously pursued postcon-viction relief. In 1996, after conducting an evidentiary hearing on Rutherford’s claims of ineffective assistance of trial counsel, the trial court denied relief and this Court affirmed. See Rutherford v. State, 727 So.2d 216 (Fla.1998). In a separately filed petition for writ of habeas corpus, Rutherford asserted numerous claims of ineffective assistance of appellate counsel and this Court likewise denied relief. Rutherford v. Moore, 774 So.2d 637 (Fla.2000). Rutherford then pursued habeas relief in the federal courts, which was eventually denied. See Rutherford v. Crosby, 385 F.3d 1300 (11th Cir.2004), cert. denied, 544 U.S. 982, 125 S.Ct. 1847, 161 L.Ed.2d 738 (2005).

Rutherford next filed a second postcon-viction motion in state court based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The trial court summarily denied Rutherford’s motion and this Court affirmed the denial on appeal. See Rutherford v. State, 880 So.2d 1212 (Fla.2004) (table report), cert. denied, 543 U.S. 1167, 125 S.Ct. 1342, 161 L.Ed.2d 142 (2005). Rutherford later filed two petitions for writ of certiorari in the United States Supreme Court. The Supreme Court denied both petitions. See Rutherford v. Florida, 543 U.S. 1167, 125 S.Ct. 1342, 161 L.Ed.2d 142 (2005) (mem.); Rutherford v. Crosby, 544 U.S. 982, 125 S.Ct. 1847, 161 L.Ed.2d 738 (2005) (mem.). Rutherford then filed a second habeas petition in this Court based on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was also denied. See Rutherford v. Crosby, 909 So.2d 862 (Fla.2005) (table decision).

On November 29, 2005, Governor Bush signed Rutherford’s death warrant. One day prior, on November 28, 2005, Rutherford filed a third successive habeas petition in this Court in which he asserted that the trial court’s decision to place him in shackles during closing arguments of the penalty phase violated the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution under Deck v. Missouri 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). This Court denied Rutherford’s successive habeas petition by order on January 5, 2006. See Rutherford v. Crosby, 921 So.2d 629 (Fla.) (table report), cert. denied, — U.S. -, 126 S.Ct. 1190, 163 L.Ed.2d 1144 (2006).

After the death warrant was signed, Rutherford filed a third postconviction motion to vacate his convictions and sentences. Rutherford’s claims centered on two main issues: (1) that lethal injection procedures in Florida constituted cruel and unusual punishment; and (2) that newly obtained affidavits implicated another person, Mary Frances Heaton, in the victim’s death. The trial court summarily denied the claims and we affirmed. See Rutherford, 926 So.2d at 1102. The United States Supreme Court denied certiorari and a stay of execution on January 31, 2006. See Rutherford v. Florida, — U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006).

During this same time period, Rutherford was attempting to litigate the lethal injection issue in the federal courts. The federal district court dismissed Rutherford’s claim under 42 U.S.C. § 1983, which authorizes civil suits to remedy violations of constitutional rights, and the United States Court of Appeals for the Eleventh Circuit affirmed. See Rutherford v. Crosby, 438 F.3d 1087 (11th Cir. 2006). Rutherford filed a petition for writ of certiorari and an application for stay of execution with the United States Supreme Court. The Supreme Court granted the stay on January 31, 2006. See Rutherford v. Crosby, — U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1144 (2006). On June 19, 2006, the Supreme Court granted the petition for writ of certiorari and remanded the case to the Eleventh Circuit for further consideration in light of Hill v. McDonough, — U.S. -, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). See Rutherford v. McDonough, — U.S. -, 126 S.Ct. 2915, 165 L.Ed.2d 914 (2006). Upon issuance of the mandate by the United States Supreme Court on July 21, 2006, the stay terminated. See Rutherford, 126 S.Ct. at 1191 (“In the event the petition for writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.”). The Eleventh Circuit subsequently reconsidered Rutherford’s section 1983 claims in light of Hill and affirmed the district court’s dismissal based on unnecessary delay by Rutherford in bringing the claim. See Rutherford v. McDonough, No. 06-10783, 2006 WL 2830968 (11th Cir. Oct.5, 2006).

Following the rescheduling of Rutherford’s execution, Rutherford filed a fourth motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 and an amendment to the motion. Rutherford raised five claims for relief. He asserted that (1) newly discovered evidence, consisting of the American Bar Association’s September 2006 report evaluating Florida’s death penalty system (“ABA Report”), demonstrates that Rutherford’s death sentence constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments; (2) Florida’s clemency process is arbitrary and capricious, violating the Eighth and Fourteenth Amendments; (3) Florida’s failure to recognize a freestanding actual innocence claim violates the Eighth Amendment; (4) newly discovered evidence relating to Mary Frances Heaton’s role in the murder demonstrates that Rutherford’s capital conviction and death sentence are constitutionally unreliable in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; and (5) the newly discovered evidence relating to Heaton’s role in the murder demonstrates that Rutherford is actually innocent.

The circuit court conducted a Huff hearing on October 4, 2006, to determine whether an evidentiary hearing was required on any of these claims. On October 6, 2006, the circuit court denied Rutherford’s motion without an evidentiary hearing. Rutherford also filed a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), arguing that his death sentence is unconstitutional in light of the ABA Report. The circuit court granted the State’s motion to strike, finding that Rutherford’s claim was not properly raised in a motion to correct illegal sentence because the alleged illegality did not appear on the face of the record and the trial court had no authority to reconsider the constitutionality of the death penalty on grounds rejected by this Court and the United States Supreme Court.

In the instant appeal, Rutherford challenges the circuit court’s denial of his rule 3.851 motion and the circuit court’s dismissal of his rule 3.800(a) motion. Rutherford has also petitioned the Court for a writ of habeas corpus, in which he asserts that the ABA Report demonstrates that his death sentence should be vacated. He claims that the ABA Report constitutes empirical evidence that his sentence of death constitutes cruel and unusual punishment. He also argues that the ABA Report provides the same type of statistical analysis that led the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), to declare the death penalty unconstitutional and led this Court to vacate all of the death sentences of those defendants then on death row. See Anderson v. State, 267 So.2d 8 (Fla.1972).

THE ABA REPORT

We first address the impact of the ABA Report because it serves as the basis for Rutherford’s claims in his rule 3.800(a) and 3.851 motions, as well as in his habeas petition, that his death sentence is unconstitutional. On September 17, 2006, the American Bar Association published a report on Florida’s death penalty system. The report, titled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report, analyzes Florida’s death penalty laws, procedures and practices, and highlights areas in which, in the view of the assessment team, Florida “fall[s] short in the effort to afford every capital defendant fair and accurate procedures.” ABA Report at iii.

We agree with the circuit court’s conclusion that the ABA Report is not “newly discovered evidence.” The ABA Report is a compilation of previously available information related to Florida’s death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches. See ABA Report at ii (“The state assessment teams are responsible for collecting and analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of the death penalty” and the assessment team’s findings “are intended to serve as the bases from which [the state] can launch [a] comprehensive self-examination[

However, even if we were to consider the information contained in the ABA Report, nothing therein would cause this Court to recede from its decisions upholding the facial constitutionality of the death penalty. See, e.g., Hodges v. State, 885 So.2d 338, 359 & n. 9 (Fla.2004) (noting that the defendant’s claim that “the death penalty statute is unconstitutional because it fails to prevent the arbitrary and capricious imposition of the death penalty, violates due process, and constitutes cruel and unusual punishment,” has “consistently been determined to lack merit”); Lugo v. State, 845 So.2d 74, 119 (Fla.2003) (“We have previously rejected the claim that the death penalty system is unconstitutional as being arbitrary and capricious because it fails to limit the class of persons eligible for the death penalty.”). Further, Rutherford does not allege how any of the conclusions reached in the ABA Report would render his individual death sentence unconstitutional.

For all these reasons, we affirm the circuit court’s denial of the motion for postconviction relief regarding these points related to the ABA Report, we affirm the circuit court’s dismissal of the motion for 3.800(a) relief, and we deny Rutherford’s petition for a writ of habeas corpus.

NEWLY DISCOVERED EVIDENCE REGARDING MARY HEATON

In his second successive postconviction motion, which was filed after the death warrant was signed in November 2005, Rutherford argued that newly discovered evidence showed that Mary Heaton’s involvement in the murder entitled him to a new trial. Heaton had testified at trial about the circumstances related to her cashing the check belonging to Mrs. Sala-mon. The allegedly newly discovered evidence was in the form of two affidavits:

Rutherford asserts newly discovered evidence in the form of affidavits by two persons relating statements made by Heaton. In the first affidavit dated December 16, 2005, Heaton’s former housemate Alan Gilkerson stated that in the early 1990s, Heaton told him that “she once killed an old lady with a hammer and made it look like A.D. Rutherford committed the crime.” Gilkerson stated that Heaton told him that her motive for “murdering the old lady” was to get money.
In the second affidavit dated December 23, 2005, defense investigator Michael Glantz stated that in a conversation with Heaton on December 22, 2005, Heaton confirmed that she knew Gilker-son and had previously resided with him. However, Heaton denied having told Gilkerson that she committed the murder in this case. According to Glantz’s affidavit, Heaton stated that she knew the victim, had been present at the victim’s home at the time of the murder, had witnessed Rutherford strike the fatal blow, and had been present when the victim’s belongings were buried. Hea-ton claimed that she had previously provided this information to law enforcement officers during their investigation of the crime and had also tried to lead the officers to the location where the victim’s belongings were buried.

Rutherford, 926 So.2d at 1107. This Court affirmed the circuit court’s summary denial, stating:

Heaton’s statements to Gilkerson and Glantz concerning whether she committed the murder are contradictory on their face. In her statement to Gilker-son, Heaton confessed to killing Mrs. Salamon. However, this confession is contradicted by her subsequent statement to Glantz, in which she stated that it was Rutherford who struck the fatal blow, killing Mrs. Salamon. When viewed against the impeachment evidence presented at trial concerning Hea-ton’s mental problems and difficulty distinguishing fact from fantasy, Heaton’s inconsistent statements to Gilkerson and Glantz would only serve to impeach Hea-ton’s credibility further. Clearly, this evidence does not establish that Heaton committed the crime or that Rutherford is innocent.
At most, these conflicting versions of events suggest that Heaton’s involvement in the crime may have been greater than was presented at trial. Even assuming that Heaton played a more significant role in the crime than was presented at trial, this evidence fails to satisfy the second prong of Jones [v. State, 591 So.2d 911 (Fla.1991)] when considered cumulatively with the evidence presented at trial. First, there is no probability that this evidence would produce an acquittal on retrial. Although Heaton’s statements could be used to impeach her credibility and her testimony at trial concerning her involvement in the crime, these statements would not have contradicted or provided an innocent explanation for any of the other evidence presented at trial indicating that Rutherford was the perpetrator. Nor would these statements have affected [Elizabeth] Ward’s uncontradicted testimony placing Rutherford in possession of the victim’s check.
Further, there is no probability that this evidence would result in imposition of a sentence less than death on retrial. In this case, there was overwhelming evidence of Rutherford’s guilt. Although the affidavits suggest that Hea-ton may have had greater involvement in the murder than she acknowledged at trial, her statements to Gilkerson and Glantz do not warrant a reasonable belief that Rutherford is less than wholly culpable for the murder. Despite the fact that Heaton stated that she was present at the time of the murder and when the victim’s belongings were buried, Heaton does not state that she did anything to assist Rutherford in committing the murder or in disposing of the victim’s belongings. In addition, Hea-ton’s statements do not affect the aggravating factors found by the trial court in this case. Based on these circumstances, we conclude that the circuit court did not err in determining that Rutherford was not entitled to an evi-dentiary hearing on his newly discovered evidence claim.

Id. at 1109-10.

In Rutherford’s third successive post-conviction motion, which is at issue in this appeal, he argues that the statements of another newly discovered witness, when considered in conjunction with Gilkerson’s affidavit, entitle him to relief. This new witness, Brian Adkison, gave the following sworn statement in an affidavit on September 30, 2006:

1. My name is Brian Adkison. I currently reside at the Walton County Jail in DeFuniak Springs, Florida. I have known Elizabeth Bevin for years, and we were neighbors in a trailer park in Crestview, Florida in the late 1990s.
2. During the time that Elizabeth Be-vin was my neighbor, I visited her home on many occasions. I remember her aunt Mary staying with her from time to time. Mary was always taking pills, rocking, and talking. She often said, “Don’t mess with me because I’ve killed people before.” She mentioned killing a lady in Milton by beating her to death, with some sort of tool.
3. When Mary would start talking about this, Liz would tell her to shut up and quit running her mouth. Liz did not want her talking about this to me. But, one time when Liz wasn’t around to stop her, Mary told me some details about the lady she’d beaten to death and how it happened. She told me that she beat the old lady to death when trying to rob the lady of money and medication. Mary said something about how she had been at the old lady’s house before, so she knew what she had. There had been a plan to get the stuff. But when it went down, I guess it went wrong. I remember very clearly Mary saying to me: “I beat her to death so she couldn’t talk.” You don’t forget when someone tells you something like that.

The circuit court, accepting the allegations contained in the affidavit as true, denied this claim for relief finding that Rutherford had presented “nothing new” and that the “affidavit(s) taken independently or cumulatively [are] insufficient to create a probability of acquittal on re-trial.”

Because the motion was summarily denied, we must accept that Rutherford could not have known about the evidence at the time of trial by the use of due diligence as required under the first prong of Jones v. State, 591 So.2d 911 (Fla.1991), and that he could not have obtained the evidence earlier by the exercise of due diligence as required by rule 3.851(d)(2)(A). We agree with the trial court that Rutherford has failed to satisfy the second prong of Jones, which requires that “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Id. at 915. In determining whether the evidence compels a new trial under Jones, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916. This determination includes

whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.

Jones v. State, 709 So.2d 512, 521 (Fla.1998) (citations omitted).

After reviewing the evidence presented at trial, this Court rejected Rutherford’s “contention] that when analyzed cumulatively ... Heaton’s subsequent statements to Gilkerson and Glantz would probably produce an acquittal or imposition of a sentence less than death on retrial.” Rutherford, 926 So.2d at 1109. Rutherford now contends that when considered together, Adkison and Gilkerson’s statements would, if presented to the jury, probably produce an acquittal on retrial or result in a sentence less than death. However, the facts in Adkison’s affidavit do not provide any new information and, as the circuit court found, are less specific than those facts contained in Gilkerson’s affidavit.

Further, in advancing his claim based on Adkison’s statements, Rutherford ignores the fact that Heaton’s statements to both Adkison and Gilkerson are still contradicted by her statements to Glantz. See id. (“Heaton’s statements to Gilkerson and Glantz concerning whether she committed the murder are contradictory on their face.”). Moreover, the fact that Heaton told Adkison that she killed “a lady in Milton by beating her to death, with some sort of tool,” does not invalidate this Court’s prior determination that

[a]lthough Heaton’s statements could be used to impeach her credibility and her testimony at trial concerning her involvement in the crime, these statements would not have contradicted or provided an innocent explanation for any of the other evidence presented at trial indicating that Rutherford was the perpetrator. Nor would these statements have affected Ward’s uncontra-dicted testimony placing Rutherford in possession of the victim’s check.

Id. at 1110.

Adkison’s affidavit also confirms this Court’s prior observation that Heaton “has suffered from mental difficulties that have impaired her ability to differentiate fact from fantasy” — a fact that the Court found significant in concluding that “a reasonable juror’s determination of Rutherford’s guilt would not be shaken by” the Gilkerson and Glantz affidavits. Id. at 1112. In other words, Heaton is simply not a reliable witness.

Finally, even if Heaton was involved in the murder, nothing that has been presented reduces Rutherford’s culpability. Cf. Jones, 709 So.2d at 526 (concluding that newly discovered evidence and Brady material linking someone other than the defendant to the murder did not “weaken[ ] the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability”) (quoting Jones v. State, 678 So.2d 309 (Fla.1996)). None of the four witnesses who testified regarding Rutherford’s highly incriminating statements have recanted. Nor have these statements been contradicted by any subsequent evidence. Ward has not recanted her testimony about the fact that Rutherford was in the possession of the check. The fingerprints and palm prints in the bathtub area belong to Rutherford and his explanation for being in that bathtub area was thoroughly impeached.

For all the reasons set forth above, we agree with the circuit court that the Adki-son affidavit, when considered cumulatively with all the other evidence, is not such that it would probably produce an acquittal on retrial. We also conclude that there is no probability that this evidence would result in the imposition of a life sentence on retrial. Accordingly, we affirm the circuit court’s summary denial of relief on this claim and on Rutherford’s claim of actual innocence.

CLEMENCY PROCESS

In his last issue on appeal, Rutherford asserts that the circuit court erred in summarily denying his claim that Florida’s clemency process is arbitrary and capricious and thus violates the Eighth and Fourteenth Amendments. Again, Rutherford relies on the ABA Report and argues that he was denied due process by the dismissal of his second clemency petition because there are no rules governing the process and the denial of his petition “was the equivalent of flipping a coin.”

The circuit court correctly denied this claim for relief. In King v. State 808 So.2d 1237, 1241 n. 5, 1246 (Fla.2002), this Court concluded that the defendant’s claim that Florida’s clemency process violates due process and equal protection was mer-itless. In Glock v. Moore, 776 So.2d 243, 252 (Fla.2001), this Court considered the defendant’s claim that he was denied due process during a second clemency proceeding because he was “denied the right to present mitigating evidence and denied the right to counsel.” The Court concluded that its prior decision in Bundy v. State, 497 So.2d 1209, 1211 (Fla.1986), controlled:

In Bundy v. State, this Court rejected a similar argument:

In the final claim raised under his 3.850 motion, appellant contends that he must be allowed time to prepare and present an application for executive clemency before sentence may be carried out in this case. In the death warrant authorizing appellant’s execution, the governor attests to the fact that “it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.” It is not our prerogative to second-guess the application of this exclusive executive function. First, the principle of separation of powers requires the judiciary to adopt an extremely cautious approach in analyzing questions involving this admitted matter of executive grace. Sullivan v. Askew, 348 So.2d 312 (Fla.), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977). As noted in In re Advisory Opinion of the Governor, 334 So.2d 561, 562-63 (Fla.1976), “[t]his Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.” See also Ex Parte White, 131 Fla. 83, 178 So. 876 (1938).
497 So.2d 1209, 1211 (Fla.1986), quoted in Provenzano v. State, 739 So.2d 1150, 1155 (Fla.1999). As in Bundy and Pro-venzano, Glock now seeks counsel for a second clemency hearing. Although Glock contends that Provenzano and Bundy differ from this case because the Governor, rather than Glock, has initiated the clemency proceeding, this is a distinction without a difference. Moreover, for the reasons stated in Bundy, we reject Glock’s arguments with regard to his right to present evidence. Accordingly, we find no due process violation and no merit to Glock’s clemency claim.

Glock, 776 So.2d at 252-53.

In Bundy, this Court also declined to “say that the executive branch was required to go through the motions of holding a second proceeding when it could well have properly determined in the first that appellant was not and never would be a likely candidate for executive clemency.” Bundy, 497 So.2d at 1211.

In Rutherford’s case, there is no dispute that he was given the opportunity to be heard and was represented by counsel during his first clemency proceeding. Further, we reject Rutherford’s argument that the ABA Report requires us to reconsider our prior decisions rejecting constitutional challenges to Florida’s clemency process. Accordingly, we affirm the denial of Rutherford’s constitutional attack on the clemency process.

CONCLUSION

For the reasons explained above, we affirm the circuit court’s orders denying Rutherford’s motion for postconviction relief and dismissing Rutherford’s motion to correct an illegal sentence. We also deny Rutherford’s petition for a writ of habeas corpus. No motion for rehearing will be entertained.

It is so ordered.

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

ANSTEAD, J., concurs in part and dissents in part with an opinion.

BELL, J., recused.

ANSTEAD, J.,

concurring in part and dissenting in part.

I concur in the majority opinion in all respects save one, the requirement of an evidentiary hearing in order to properly evaluate the newly discovered evidence of Mary Heaton’s role in the murder for which Rutherford is to be executed.

We must remember that it is not only Rutherford’s guilt but also the death penalty imposed that may be affected by this new evidence. Even without this evidence a jury voted for death by the narrowest of margins, seven-to-five, just one vote short of a recommendation for life. With that background it is essential that the credibility and reliability of this new evidence be evaluated in the crucible of an evidentiary hearing where testimony must be presented under oath and the State given a full opportunity for cross-examination. In turn, and because of the trial court’s first hand ability to evaluate the evidence presented, our confidence in the outcome will be qualitatively increased. The trial jury’s narrow vote demands no less.

      . See American Bar Association, Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report (Sept.2006).

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

      . We summarized this testimony in our prior decision:
      One witness testified that Rutherford said he planned to kill a woman and place her body in a bathtub. Another witness testified that Rutherford said that he would force a woman to write him a check and then put her in a bathtub, and a third witness testified that Rutherford said that he could get easy money by knocking a woman he worked for in the head. A fourth witness testified that Rutherford told him on the day of the murder that he had killed "the old lady” by hitting her in the head with a hammer, and then had put her in the bathtub.

        Rutherford, 926 So.2d at 1109.

      . This flipping of a coin analogy is from Justice O'Connor's separate opinion in Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), in which she opined that "some minimal procedural safeguards apply to clemency proceedings,'' and that "Qludicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency.” Id. at 289, 118 S.Ct. 1244 (O’Connor, J., concurring in part and concurring in the judgment).


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    RESOURCE HEALTHCARE OF AMERICA, INC., f/k/a RHA/Home Office, Inc., Appellant, v. Lee Roy McKINNEY, as Personal Representative of the Estate of Lorene McKinney; and RHA/Florida Operations, Inc.; Healthprime, Inc.; HP/Management Group, Inc.; Dixie Healthcare Investors, L.P.; HP/Hyde, Inc.; Delta Healthgroup, Inc.; Stella Pappas; Janet Vincenti; Tomiko Trigo; and Joan Eleanor Baldwin; (as to Glen Oaks Health Care), Appellees.
    No. 2D05-5754.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    Rehearing Denied Oct. 13, 2006.

      J. Craig Knox and George T. Levesque of Andrews, Crabtree, Knox & Andrews, LLP, Tallahassee, for Appellant.
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, for Appellee Lee Roy McKinney, as Personal Representative of the Estate of Lorene McKinney.
    No appearance for RHA/Florida Operations, Inc.; Healthprime, Inc.; HP/Management Group, Inc.; Dixie Healthcare Investors, L.P.; HP/Hyde, Inc.; Delta Healthgroup, Inc.; Stella Pappas; Janet Vincenti; Tomiko Trigo; and Joan Eleanor Baldwin; (as to Glen Oaks Health Care).
   SALCINES, Judge.

Resource Healthcare of America, Inc., f/k/a RHA/Home Office, Inc. (Resource Healthcare), appeals a nonfinal order denying its motion to dismiss for lack of personal jurisdiction. We reverse.

Lee Roy McKinney, as personal representative of the estate of Lorene McKinney, filed suit against multiple parties including Resource Healthcare, a foreign corporation, asserting claims related to the care and treatment of Lorene McKinney while she was at Glen Oaks Health Care, a nursing home located in Florida. Resource Healthcare moved to dismiss the complaint for lack of personal jurisdiction and filed the affidavit of Resource Healthcare’s president, Bryant Coats, in support of its motion. In response to Resource Healthcare’s motion and affidavit, Mr. McKinney filed transcripts from two depositions. The trial court conducted a hearing on Resource Healthcare’s motion to dismiss, took the matter under advisement, and subsequently entered an order that simply denied the motion without discussing the rationale leading to the denial. That order is the subject of Resource Healthcare’s appeal.

“Our standard of review on the issue of personal jurisdiction over a foreign corporation is de novo.” Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 83 (Fla. 2d DCA 2003). The determination of whether the trial court has personal jurisdiction over Resource Healthcare turns on whether there are sufficient jurisdictional facts to bring Mr. McKinney’s action against Resource Healthcare within the purview of the long-arm statute. Reviewing this matter de novo, we conclude that Mr. McKinney failed to establish a basis for the Florida court to acquire long-arm jurisdiction over Resource Healthcare.

When a nonresident defendant moves to dismiss a complaint for lack of long-arm jurisdiction and files an affidavit “or other sworn proof,” the burden is placed on the plaintiff to prove by affidavit or other sworn proof the basis upon which jurisdiction may be obtained. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502-03 (Fla.1989) (referring to affidavit); Kin Yong Lung Indus. Co. v. Temple, 816 So.2d 663, 666 (Fla. 2d DCA 2002) (referring to other sworn proof). If the affidavits conflict, the trial court should hold a limited evidentiary hearing to resolve the disputed issues of fact and to determine the jurisdiction issue. Venetian Salami, 554 So.2d at 503. Once the court determines that the facts are sufficient to bring the defendant within the reach of the long-arm statute, the court must also consider whether the defendant has sufficient minimum contacts with the state so that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. Id. This requires the court to determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida courts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In the present case, we do not reach the issue of minimum contacts because Mr. McKinney did not establish a statutory basis for long-arm jurisdiction.

Mr. McKinney had the burden of alleging facts which, if proven to be true, would support specific personal jurisdiction over Resource Healthcare under section 48.193(1), Florida Statutes (2003) (conferring jurisdiction for any cause of action arising from the “doing of’ specifically enumerated acts in Florida), or general personal jurisdiction under section 48.193(2) (conferring jurisdiction over parties who engage in substantial and not isolated activity within Florida). See Venetian Salami 554 So.2d at 502. The jurisdictional allegations contained in the operative complaint provided:

9. Defendant, RESOURCE HEALTHCARE OF AMERICA, INC. f/k/a RHA/ Home Office, Inc. (hereinafter “RESOURCE HEALTHCARE OF AMERICA, INC.”), is a Tennessee corporation, which is doing business in Florida.
16. Defendant, RESOURCE HEALTHCARE OF AMERICA, INC., established, conducted, managed, operated, or maintained GLEN OAKS HEALTH CARE during LORENE McKINNEY’S period of residency prior to May 15, 2001, and is a licensee pursuant to Chapter 400, Florida Statutes (2000).
25. Defendant, RESOURCE HEALTHCARE OF AMERICA, is an entity that operated the nursing home during LORENE McKINNEY’S residency on or after May 15, 2001, and as such owed a duty to LORENE McKIN-NEY to exercise reasonable care in the operation of the nursing home according to § 400.023(3), Florida Statutes (2001).

Additionally, Mr. McKinney alleged various tort claims in the complaint all of which relied on the allegation that Resource Healthcare owed a duty to exercise reasonable care because it was an entity that established, conducted, managed, operated, or maintained Glen Oaks Health Care during the specified periods of time.

In response to those allegations, Resource Healthcare filed the affidavit of Mr. Coats in which he averred that:

2. Resource Healthcare is a non-profit corporation organized under the laws of the State of Tennessee and maintains its corporate offices in Atlanta, Georgia. Resource Healthcare does not now and has never previously maintained an office or conducted any business in the State of Florida.
3. Resource Healthcare has never qualified, or applied to qualify, as a foreign corporation with the Secretary of State of Florida. Resource Healthcare does not own and has never held or owned real or personal property in the State of Florida.
4. Resource Healthcare does not maintain a registered agent for purposes of service of process in the State of Florida.
5. Resource Healthcare has not and has never been the licensee or manager of Glen Oaks Health Care, pursuant to § 400.022, Florida Statutes.
6. Resource Healthcare never established, conducted, managed, operated, or maintained Glen Oaks Health Care at any time.
7. Resource Healthcare is the sole member of RHA/Florida Operations, Inc., a Florida non-profit corporation, which was the licensed operator of Glen Oaks Health Care and which was the provider of the health care services at that facility, and the employer of the employees who worked at that facility.
8. Resource Healthcare has neither provided, nor managed, nor supervised the care and treatment of residents, including Lorene McKinney, at Glen Oaks Health Care at any time.
9. Resource Healthcare has neither billed nor received money from or on behalf of residents at Glen Oaks Health Care, including Lorene McKinney.
10. Resource Health has never had possession or control of any medical records concerning Lorene McKinney and her residency at Glen Oaks Health Care at any time.

Mr. Coats’ affidavit clearly contradicted the jurisdictional allegations in the complaint. Hence, the burden of proving that personal jurisdiction existed was placed on Mr. McKinney. See Peznell v. Doolan, 722 So.2d 881 (Fla. 2d DCA 1998) (holding that burden had shifted to plaintiffs to establish jurisdiction but they had failed to satisfy burden; plaintiffs’ complaint made conclusory allegations sufficient to raise jurisdiction and defendant’s affidavit, with equally conclusory allegations, supported his claim of no jurisdiction). This required Mr. McKinney to provide sworn proof establishing sufficient facts to bring Resource Healthcare within the reach of the long-arm statute. The sworn testimony in the depositions filed by Mr. McKinney failed to establish those facts under either a theory of specific jurisdiction pursuant to section 48.193(1) (by doing certain acts in Florida), or a theory of general jurisdiction pursuant to section 48.193(2) (by engaging in substantial and not isolated activity within Florida).

A review of Mr. McKinney’s complaint, at best, implicates only three statutory bases to confer long-arm jurisdiction over Resource Healthcare: (1) pursuant to section 48.193(l)(b) based on allegations that Resource Healthcare committed torts in Florida; (2) pursuant to section 48.193(l)(a) based on allegations that Mr. McKinney’s claims arose from a business that Resource Healthcare was operating, conducting, engaging in, or carrying on in Florida; and (3) pursuant to section 48.193(2) based on allegations that Resource Healthcare operated Glen Oaks Health Care, i.e., engaged in substantial and not isolated activity within Florida.

The deposition testimony was that of Mr. Coats and Stella Pappas. Mr. Coats’ deposition testimony revealed that in addition to being the president of Resource Healthcare, at various times he was also the vice president and chief executive officer of RHA/Florida Operations, Inc. Resource Healthcare was the parent entity of RHA/Florida Operations as well as other affiliated companies. Mr. Coats affirmed that RHA/Florida Operations was the licensee of Glen Oaks Health Care. RHA/Florida Operations used HP Management Group, Inc., a Healthprime affiliated company, as the management company in the course of operating its facilities. Mr. Coats was not otherwise affiliated with Healthprime. Ms. Pappas was the former administrator of Glen Oaks Health Care during the pertinent periods and an employee of Healthprime, the manager of Glen Oaks Health Care. Ms. Pappas had never heard of Resource Healthcare and could not testify concerning any of its activities. The foregoing deposition testimony failed to demonstrate that Resource Healthcare fell within the purview of Florida’s long-arm statute.

Again, the tort claims against Resource Healthcare assumed that it “established, conducted, managed, operated, or maintained” Glen Oaks Health Care during Ms. McKinney’s residency and, therefore, owed a duty to Ms. McKinney to exercise reasonable care in the operation of the nursing home. The affidavit refuted the allegation that Resource Healthcare ever established, conducted, managed, operated, or maintained Glen Oaks Health Care, and the deposition testimony did not establish otherwise. Thus, Mr. McKinney failed to establish long-arm jurisdiction over Resource Healthcare under section 48.193(l)(b).

The jurisdictional reach of section 48.193(l)(a) was equally unavailing in the present matter. That section confers jurisdiction over parties who operate, conduct, engage in, or carry on a business or business venture in this state or have an office or agency in this state for any cause of action arising from the “doing of’ those acts. The deposition testimony failed to establish that Resource Healthcare did any of the foregoing acts. Likewise, the deposition testimony failed to establish that Resource Healthcare engaged in substantial and not isolated activity within Florida as required in order to bring it within the ambit of section 48.193(2).

Resource Healthcare was the nonprofit “parent” corporation of RHA/Florida Operations, its nonprofit subsidiary that was the licensee of the Glen Oaks Health Care Center. Ownership of a resident subsidiary corporation by an out-of-state parent corporation, without more, has been repeatedly deemed insufficient to meet the requirements of section 48.193. See Greystone Tribeca Acquisition, L.L.C. v. Ronstrom, 863 So.2d 473, 476 (Fla. 2d DCA 2004) (holding that out-of-state parent corporation’s resident subsidiary which was the owner, operator, and licensee of a nursing home located within the state did not constitute activity sufficient to grant personal jurisdiction over parent corporation, even though parent corporation was disclosed on state licensure filings); Capital One Fin. Corp. v. Miller, 709 So.2d 639, 640 (Fla. 2d DCA 1998) (finding foreign holding company’s ownership of subsidiary within the state insufficient to satisfy the long-arm statute); Walt Disney Co. v. Nelson, 677 So.2d 400, 403 (Fla. 5th DCA 1996) (holding parent corporation’s ownership of a subsidiary which conducted business in the state, without more, insufficient to establish long-arm jurisdiction); Qualley v. Int’l Air Serv. Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992) (holding requirements of section 48.193 were not met for parent corporation which owned a subsidiary actively involved in business in Florida, even though parent corporation also performed certain accounting and payroll functions for its subsidiary).

Accordingly, because Mr. McKinney failed to establish a basis for the Florida court to acquire long-arm jurisdiction over Resource Healthcare, we reverse and remand with directions to the trial court to grant Resource Healthcare’s motion to dismiss.

Reversed and remanded with directions.

NORTHCUTT and LaROSE, JJ., Concur.

      . We note that although the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction, when a parent exercises sufficient control over a subsidiary, that control establishes an agency and supports jurisdiction. See Enic, PLC v. F.F. South & Co., 870 So.2d 888 (Fla. 5th DCA 2004). In the present case, McKinney did not present an agency theory and did not offer sworn proof that would establish jurisdiction based on agency.


author: SILBERMAN, Judge.

text:
    Deandre PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-741.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 2006.
   SILBERMAN, Judge.

Deandre Perry challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm the postconviction court’s denial of his first claim pursuant to Meriweather v. State, 740 So.2d 1210, 1211 (Fla. 2d DCA 1999). We affirm the postconviction court’s denial of his second claim because the sentencing scoresheet correctly included points for his convictions of two counts of possession of burglary tools.

Affirmed.

ALTENBERND and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    CITIZENS FOR RESPONSIBLE GROWTH, a political committee, Terry Gannon, Chairman, Linda Chaney, Treasurer, and Harry Metz, Deputy Treasurer, and Intervenors Muriel Desloovere and Cheri Haigley, Appellants/Cross-Appellees, v. CITY OF ST. PETE BEACH, a Florida municipality, Appellee/Cross-Appellant.
    No. 2D06-550.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2006.
    Rehearing Denied Sept. 6, 2006.

      Kenneth L. Weiss, Treasure Island, and R. Michael Larrinaga of The Larrinaga Law Group, P.A., Tampa, for Appellants/Cross-Appellees.
    Thomas G. Pelham of Fowler, White, Boggs, Banker, Tallahassee, and Timothy P. Driscoll, St. Petersburg, for Appel-lee/Cross-Appellant.
   PER CURIAM.

In this appeal we consider whether the electorate of a Florida city should be given the opportunity to vote for or against amendments to the municipal charter that would require voter approval for certain changes to the city’s land use and community development plans. After collecting the required signatures, Citizens for Responsible Growth, a political action committee, properly submitted four petitions for referenda to amend the charter of the City of St. Pete Beach. The proposed amendments seek to circumscribe the City Commission’s authority to amend the City’s comprehensive land use and community development plans as defined in chapter 163, Florida Statutes (2005), by requiring voter approval of such changes. The four proposed amendments qualified for placement on the ballot. Rather than placing the proposals on the ballot, however, the City filed for declaratory relief pursuant to chapter 86, Florida Statutes (2005), claiming that the all-encompassing legislative directives contained in chapter 163 preempted the proposed amendments. The defendants in the action are the political action committee, its officers, and two intervening private citizens. (Hereafter, this opinion will refer to the defendants collectively as “the Citizens.”)

After a hearing, the circuit court entered a summary final judgment, an order denying the Citizens’ motion for rehearing, a judgment on the pleadings, and an order supplementing the final summary judgment and judgment on the pleadings. These orders determined that the proposed amendments contained in Petitions I, III, and IV were unconstitutional as having been preempted and, therefore, would not appear on the ballot. The Citizens appeal from this judgment. The circuit court also ruled that the proposed amendment contained in Petition II did not suffer from a constitutional infirmity and allowed it to be placed on the ballot. The City cross-appeals that determination. We reverse the Citizens’ main appeal and affirm the City’s cross-appeal, and hold that all four proposals should be presented to the electorate of the City of St. Pete Beach.

We begin with the premise that “all political power is inherent in the people and that we must, if possible, interpret the amendment as constitutional.” Charlotte County Bd. of County Comm’rs v. Taylor, 650 So.2d 146, 148 (Fla. 2d DCA 1995) (citing Miami Dolphins, Ltd. v. Metro. Dade County, 394 So.2d 981 (Fla.1981)). Our consideration of the issue is limited to whether the challenged petitions, individually, contravene the Florida Constitution as inconsistent with state law. When a petition can “have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law,” it must be submitted to the electorate. Dade County v. Dade County League of Municipalities, 104 So.2d 512, 515 (1958). Only when a petition is unconstitutional in its entirety may it be precluded from placement on the ballot. This avoids the possible expenditure of substantial amounts of public money to do a “vain and useless thing.” Id. at 514.

If the opponent of a proposed amendment “in good faith questions the constitutionality of the ordinance in its entirety and on its face[,] the court may properly consider that question in advance of an election concerning its approval.” W. Palm Beach Ass’n of Firefighters, Local Union 727 v. Bd. of City Comm’rs of the City of W. Palm Beach, 448 So.2d 1212, 1214 (Fla. 4th DCA 1984). “The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation by municipalities may not conflict with state law. If conflict arises, state law prevails.” Id. at 1214-15 (quoting Miami Beach v. Rocio Corp., 404 So.2d 1066,1070 (Fla. 3d DCA 1981)). See also Tribune Co. v. Cannella, 458 So.2d 1075, 1079 (Fla.1984) (holding that “the legislative scheme of the Public Records Act has preempted the law relating to any delay in producing records for inspection” and could not be contravened by city policy).

As a threshold argument, the Citizens claim that the circuit court lacked jurisdiction to entertain the City’s deelara-tory action. We disagree. The circuit court properly analyzed this question in its order on jurisdiction. See Gaines v. City of Orlando, 450 So.2d 1174 (Fla. 5th DCA 1984) (holding that the circuit court has discretion to make a pre-election determination of the facial constitutionality of any proposed amendment slated to appear on the ballot). Although the circuit court did not precisely determine that all parties were properly before the court, we note that the parties stipulated to the court’s entry of a supplemental order finding that the defendants were proper party defendants to this declaratory judgment action.

The Proposed Amendments to the City Charter

The Citizens’ petitions presented four proposed amendments to the City charter for the electorate’s considerations. Because our dispositions are based on arguments applicable to one or more of these petitions, the proposed amendments are set forth in their entirety below:

Petition I
Section 3.15 Voter approval required for approval of comprehensive land use plan or comprehensive land use plan amendments. A comprehensive plan (“Plan”) or comprehensive plan amendment (“Plan Amendment”) (both as defined in Florida Statutes Chapter 163) shall not be adopted by the City Commission until such proposed Plan or Plan Amendment is approved by the electors in a referendum as provided in Florida statute Section 166.031 or by the City Charter or as otherwise provided by law. Elector approval shall not be required for any Plan or Plan Amendment that affects five or fewer parcels of land or as otherwise prohibited by Florida Statutes including but not limited to Florida Statutes [sic] Section 163.3167. This amendment shall become effective immediately upon approval by a majority of the electors voting in such referendum.
Petition II
Section 3.16 Unanimous City Commission approval required for approval of comprehensive land use plan or comprehensive land use plan amendments affecting five or fewer parcels. A comprehensive land use plan (“Plan”) or comprehensive land use plan amendment (“Plan Amendment”) (both as defined in Florida Statutes Chapter 163), which Plan or Plan Amendment affects five or fewer parcels as defined in Florida Statutes Section 163.3167, shall only be adopted by the City Commission (the “Commission”) by a unanimous vote of the Commission. This charter amendment shall become effective immediately upon approval by a majority of the electors voting in such referendum.
Petition III
Section 3.17 Voter approval required for approval of or effectiveness of a community redevelopment plan. A community redevelopment plan as defined in Florida Statutes Section 163 shall not be adopted by the City Commission until such proposed community redevelopment plan is submitted to a vote of the electors by referendum as provided by Florida Statutes Section 166.031 or by the City Charter. This amendment shall become effective immediately upon approval by a majority of the electors voting in such referendum.
Petition IV
Section 3.18 Voter approval required for increase in allowable height of structure. No amendment to the City’s Land Development Code providing for an increase in the allowable height (as defined by the Land Development Code) of any structure (as defined by the Land Development Code) shall be adopted by the City Commission until such amendment is submitted to a vote of the electors by referendum as provided by Florida Statute S. 166.031 or by the City Charter. This amendment shall become effective immediately upon approval by majority of the electors voting in such referendum.

Discussion

Petition II

The City contends that the circuit court erred when it permitted Petition II to appear on the ballot. The proposed amendment requires a unanimous vote by the City Commission for matters affecting five or fewer parcels under the comprehensive land use plan. The City relies on section 163.3167(12), which provides:

An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.

The proposed charter amendment does not clash with chapter 163 because it would establish only an internal operating or procedural rule regarding the number of commissioners who must agree on an amendment affecting five or fewer parcels. We agree with the Citizens that the procedural requirement imposed by the proposed amendment does not qualify as a “referendum” proscribed by the statute. In other provisions, such as emergency ordinances in section 3.11(b), the City charter also requires a super-majority vote. Furthermore, we find no merit in the City’s argument that the amendment is vague, ambiguous, or misleading. We affirm the cross-appeal.

Petitions I, III, and IV

Petitions I, III, and TV all require that certain measures be submitted to a general referendum before final adoption: the City’s comprehensive land use plan or amendments thereto in Petition I; the City’s community development code or amendments thereto in Petition III; and changes in building height restrictions in Petition IV. The comprehensive land use plan and the community redevelopment code of local governments are addressed in parts II and III of chapter 163, in which the legislature enunciated a statewide growth and redevelopment policy. The statutes specify processes for the adoption and amendment of a comprehensive plan and a redevelopment code. For example, in part II, titled “Process for adoption of comprehensive plan or plan amendment,” section 163.3184(13) states that the “proceedings under this section shall be the sole proceeding or action for a determination of whether a local government’s plan, element, or amendment is in compliance with this act.” Part III contains similar provisions. See, e.g., § 163.356 (“[A]ny county or municipality may create a public body corporate and politic to be known as a ‘community redevelopment agency.’”). The statutes also address public hearing and administrative review requirements.

In finding that chapter 163 preempted the proposed amendments in Petitions I, III, and IV, the circuit court recognized the general principle that “[pjreemption essentially takes a topic or field in which local government might otherwise establish local laws and reserves that topic for regulation exclusively by the legislature.” City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006) (quoting Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005)). The Citizens advance the contrary view: that the proposed amendments are neither inconsistent nor irreconcilable with the statutory framework and thus are constitutional. As authority, the Citizens cite this court’s opinion in Hillsborough County v. Florida Restaurant Ass’n, 603 So.2d 587 (Fla. 2d DCA 1992), which held that a county ordinance requiring that establishments serving alcohol post signs warning of the dangers of drinking alcohol was neither expressly nor impliedly preempted by statutes relating to food protection or by Florida’s interest in regulating alcohol packaging and sales. See also Phantom of Clearwater, 894 So.2d at 1020 (holding that a Pinellas County ordinance regulating the business of fireworks sales was, with one minor exception, lawfully enacted, because chapter 791 does not expressly or impliedly preempt the field of fireworks regulation). Similarly, in this case, the proposed City charter amendments and the statutory framework regulating the adoption and amendment of comprehensive land use plans and community redevelopment codes can co-exist.

Conclusion

We hold that the proposed amendments are neither facially unconstitutional nor unconstitutional in their entirety, not because they merely add another step in an already detailed process but because they are inferentially permitted by section 163.3167(12):

An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.

Clearly, the Legislature has proscribed use of the initiative and referendum process in matters affecting five or fewer parcels of land. And just as clearly, the Legislature inferentially permitted use of the initiative and referendum process in development orders or comprehensive plans or amendments affecting six or more parcels. This conclusion logically derives from a general principle of statutory construction, expressio unius est exclusio al-teráis, which means that “express mention of one thing is the exclusion of another.” Inman v. State, 916 So.2d 59, 61 (Fla. 2d DCA 2005). Thus, because the law expressly describes the particular situation to which the prohibition against referenda applies (e.g., amendments affecting five or few parcels), the inference must be drawn that those situations not included by specific reference (e.g., amendments affecting six or more parcels) were intentionally omitted or excluded. See, e.g., Gay v. Singletary, 700 So.2d 1220 (Fla.1997).

Language from a recent Florida Supreme Court advisory opinion, albeit dicta, further bolsters our reasoning:

[T]he statutory scheme already in place allows local governments to utilize a referendum process in regard to a plan amendment if the amendment affects more than five parcels of land. See § 163.3167(12), Fla. Stat. (2004) (“An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.”). Thus, this initiative would mandate a process already approved by the Legislature in certain instances.

Advisory Op. to Att’y Gen. Re: Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 938 So.2d 501, 504 (Fla. 2006) (quoting, with emphasis, Advisory Op. to the Att’y Gen. re: Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 902 So.2d 763, 769 (Fla.2005)). Rather than conflicting with the statutory framework, the proposed City charter amendments complement it: they are the flip side of the proverbial coin.

There should be no concern that such things as repeated refusals to approve a plan or amendment will thwart the statewide policy. Section 163.3167(2) authorizes the Administration Commission to impose sanctions on a local government that fails to timely submit a plan; and subsection (3) empowers the responsible regional planning agency to adopt any missing elements of a local government’s plan. Generally, however, “it would be inappropriate for this court to undertake to discuss in any measure either the wisdom or the lack of wisdom reflected by the proposed amendment.” Dade County League of Municipalities, 104 So.2d at 515; see also Gaines, 450 So.2d at 1178. But the citizens of the City of St. Pete Beach are entitled to express their views on how their City Commission should handle land use problems, despite a pervasive statutory framework implementing a statewide policy on growth and redevelopment.

Because placement of the proposed amendments on the ballot does not conflict with chapter 163, we affirm the judgment as to Petition II, reverse the judgment as to Petitions I, II, and IV, and remand with instructions for the circuit court to enter judgment in favor of the Citizens and to order the City to place all four of the proposed amendments on the ballot.

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA, SALCINES, and CANADY, JJ., Concur.

      . The section designations refer to the City charter. The underlined portion is apparently the summary or title of the section.

      . Although we do not address the wisdom of the proposed amendments, we note that Petitions III and IV appear to provide merely for an advisory opinion by the electorate, unlike Petition I, which requires that the electorate must approve the question before the City Commission may finally adopt the land use plan or any amendment to it.

      . In its 2006 Land Use Plans opinion, the supreme court approved an issue for placement on the ballot that, if passed, will render our discussion moot. The relevant language of the proposed constitutional amendment is as follows:
      Establishes that before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body as provided by general law, and notice thereof in a local newspaper of general circulation.
      938 So.2d at 502.


author: CANADY, Judge.

text:
    Melvin S. HOBBS and Suzanne Hobbs, Appellants/Cross-Appellees, v. Charles WEINKAUF, Robert Krueger, Ronald Thompson, Eugene Cox, and Grenelefe Association of Condominium Owners No. 1, Inc., a Florida corporation, Appellees/Cross-Appellants.
    No. 2D04-4806.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2006.
    Rehearing Denied Sept. 26, 2006.
    Christopher L. Griffin and Christopher Torres of Foley & Lardner LLP, Tampa, for Appellants/Cross-Appellees.
    Eileen B. Coe and Mark H. Ruff of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellees/Cross-Appel-lants.
   CANADY, Judge.

This case involves a dispute arising from the operation of the Grenelefe Association of Condominium Owners No. 1, Inc. The plaintiffs below, Melvin and Suzanne Hobbs, as trustees of the Hobbs Revocable Trust, appeal a final judgment in a nonjury trial adjudicating certain claims in favor of Grenelefe and dismissing the claims against certain members of Grenelefe’s board of directors. Grenelefe and the directors cross-appeal a claim that was adjudicated in favor of the Hobbses. We affirm on the issue raised in the cross-appeal without further comment. We also affirm on two of the three issues raised by the Hobbses in the appeal.

We reverse, however, on the third issue in the appeal which relates to the Hobbses’ claim in count VI of their complaint that Grenelefe failed to comply with the requirements of section 718.111(12)(a)(ll)(b), Florida Statutes (2001), concerning Grenelefe’s accounting records. The Hobbses sought an injunction to compel Grenelefe to comply with the statutory requirement that accounting records be maintained “for each unit.” We conclude that the trial court erred in granting an involuntary dismissal — pursuant to Florida Rule of Civil Procedure 1.420(b) — of this claim after the presentation of the Hobbses’ case at trial.

Section 718.111(12) sets forth requirements concerning the maintenance of the official records of condominium associations. Among the required records are: “A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid upon the account, and the balance due.” § 718.111(12)(a)(ll)(b) (emphasis added).

Section 718.303 provides, among other things, that a unit owner may bring an action for injunctive relief for failure to comply with the requirements of chapter 718. Among the actions that may be brought under this provision are actions against an association. § 718.303(l)(a).

The evidence before the trial court included an affidavit given by the general manager of Grenelefe. The affidavit states, in pertinent part:

The Association does not maintain an individual account for each unit owned by Sports Shinko. The Association does maintain a summary for all units owned by Sports Shinko which would show what was invoiced to and paid by Sports Shinko on account of all its units and the total balance owed by Sports Shinko.

Sports Shinko was the owner of a large number of units in the Grenelefe condominium, and other evidence relied on by the Hobbses supported the averments in the affidavits.

Grenelefe and the directors took the position — which apparently was accepted by the trial court — that although Grenelefe did “not maintain an individual account for each unit,” the summary accounting records were sufficient to comply with the requirements of section 718.111(12)(a)(ll)(b).

Grenelefe’s position is, however, inconsistent with the plain language of the statute which requires that account information be maintained “for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid upon the account, and the balance due.” § 718.111(12)(a)(ll)(b). Grenelefe does not maintain such account information for the individual units, and its practice of utilizing summary accounting records does not comply with the statutory mandate for the maintenance of records “for each unit.” The fact that information with respect to the status of individual units might be deduced from the summary accounting records does not establish that the statutory requirements were satisfied. The statutory requirements are designed to ensure that condominium associations maintain readily understood and accessible accounting records with respect to individual condominium units.

We reject Grenelefe’s argument that the trial court’s ruling on this claim should be upheld because “no harm occurred as a result of how [the accounting records] were kept.” A violation of the requirements of chapter 718 is itself a harm for which section 718.303 authorizes injunctive relief. The statute requires no additional showing of harm. See Times Publ’g Co. v. Williams, 222 So.2d 470, 476 (Fla. 2d DCA 1969) (holding that statutory provision granting circuit court jurisdiction to issue injunction for violation of a statute “is the equivalent of a legislative declaration that a violation of the statutory mandate constitutes an irreparable public injury” and, therefore, “a mere showing that the statute has been or is clearly about to be violated fully satisfies” the requirement of a showing of irreparable harm for in-junctive relief) disapproved on other grounds by Neu v. Miami Herald Publ’g Co., 462 So.2d 821 (Fla.1985).

In view of the plain provisions of chapter 718 and the evidence adduced by the Hobbses at trial, we conclude that the Hobbses made a prima facie case against Grenelefe under count IV. The trial court therefore erred in granting Grenelefe’s motion for involuntary dismissal. See Capital Media, Inc. v. Haase, 639 So.2d 632, 633 (Fla. 2d DCA 1994) (“This court and others have consistently held that on a motion for involuntary dismissal, made at the close of plaintiffs case in a nonjury trial, a trial court is limited to determining whether or not the plaintiff has made a prima facie case.”).

Accordingly, we reverse the judgment in favor of Grenelefe with respect to count VI of the Hobbses’ complaint. The case is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and SALCINES, JJ., Concur.


author: STRINGER, Judge.

text:
    Crecenciano HERNANDEZ-GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3497.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2006.
    Ronald S. Tulin, Plant City, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

We affirm Hernandez-Garcia’s judgment and sentence without discussion of the issues raised on appeal. However, our review of the record revealed that the written judgment reflects a conviction for first-degree burglary even though the trial court orally adjudicated Hernandez-Garcia guilty of second-degree burglary at the sentencing hearing. We are precluded from reviewing this issue because it was not raised on appeal. Our affirmance is therefore without prejudice to any right Hernandez-Garcia might have to file a motion for appropriate postconviction relief.

Affirmed.

CANADY and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Nicholas Anthony TERSIGNI, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-1574.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2006.
    Nicholas Anthony Tersigni, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Colón, Assistant Attorney General, Tampa, for Respondent.
   LaROSE, Judge.

In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), Nicholas Anthony Tersigni contends that his appellate counsel was ineffective. According to Mr. Tersigni, his appellate counsel failed to argue that the trial court committed fundamental error in using the conjunction “and/or” between Mr. Tersig-ni’s name and the name of the codefendant when instructing the jury on the essential elements of two of the charged offenses. We agree. Accordingly, we grant the petition and allow Mr. Tersigni a belated appeal on this issue only.

Mr. Tersigni was convicted by a jury of organized fraud, racketeering, and conspiracy to commit racketeering. We affirmed the judgment and sentences. See Tersigni v. State, 923 So.2d 505 (Fla. 2d DCA 2006) (table decision).

Prior to the filing of the initial brief in Mr. Tersigni’s direct appeal, we reversed convictions for racketeering, conspiracy to commit racketeering, conspiracy to traffic in heroin, and trafficking in illegal drugs because the trial court committed fundamental error by including the “and/or” conjunction between the names of a defendant and his codefendant when instructing the jury as to the elements the State was required to prove beyond a reasonable doubt. See Cabrera v. State, 890 So.2d 506, 507-08 (Fla. 2d DCA 2005). We issued similar decisions in two other cases prior to the filing of Mr. Tersigni’s initial brief. See Pizzo v. State, 916 So.2d 828 (Fla. 2d DCA 2005); Davis v. State, 895 So.2d 1195 (Fla. 2d DCA 2005).

Mr. Tersigni’s claim is cognizable in a petition alleging ineffective assistance of appellate counsel. See Zeno v. State, 922 So.2d 481, 432 (Fla. 2d DCA 2006). We conclude that appellate counsel was ineffective in failing to argue that the trial court committed fundamental error with respect to the jury instructions in question. “A determination as to whether these instructions constituted fundamental error requires a full review of the record on appeal.” Zeno, 922 So.2d at 433. We instruct the trial court, within thirty days from the issuance of our mandate, to appoint new appellate counsel for Mr. Tersig-ni. Within thirty days of appointment, new appellate counsel shall file a new notice of appeal and reference this opinion therein. Thereafter, new appellate counsel shall file a timely brief directed to the issue outlined in this opinion.

Petition granted.

ALTENBERND and NORTHCUTT, JJ., Concur.