author: PER CURIAM. PARIENTE, J.,

text:
    Wydell Jody EVANS, Appellant, v. STATE of Florida, Appellee. Wydell Jody Evans, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC05-1974, SC05-632.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Rehearing Denied Dec. 19, 2006.

      John W. Jennings Capital Collateral Regional Counsel, Richard E. Kiley, Assistant CCRC, and James V. Viggiano, Staff Attorney, CCRC, Middle Region, Tampa, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Wydell Jody Evans was convicted of first-degree murder and subsequently sentenced to death. He was also convicted of kidnapping and aggravated assault. We affirmed his convictions and sentences on direct appeal. Evans v. State, 838 So.2d 1090 (Fla.2002), cert. denied, 540 U.S. 846, 124 S.Ct. 121, 157 L.Ed.2d 84 (2003). Evans now1 appeals an order of the circuit court denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the circuit court’s order and deny the habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from this Court’s opinion on direct appeal:

On October 21, 1998, two days after being released from prison, Wydell Evans shot and killed his brother’s seventeen-year-old girlfriend, Angel Johnson, during an argument over her alleged unfaithfulness to Evans’ brother. At the time of the shooting, Evans was in an automobile with Johnson, Erica Foster, Sammy Hogan, and Lino Odenat. At some point during the argument, Johnson laughed, to which Evans responded, “You think it’s funny? You think it’s funny?” Evans then pulled out a gun and shot Johnson in the chest.
After the shooting, Evans directed Hogan to drive to the home of a man called “Big Dick.” As they drove, Evans passed the gun to Odenat and told him to dispose of it. When they arrived at Big Dick’s house, Evans left the ear and talked to Big Dick. While Evans was talking, Odenat decided to get out of the ear and let the others take Johnson to the hospital. As Odenat opened the door and stepped out, Evans told him to get back into the car and Odenat obeyed. Within a few minutes, Evans returned and directed Hogan to drive into a nearby parking lot. There, Evans threatened Foster and Hogan not to tell who shot Johnson or he would kill them and their families. After threatening Foster and Hogan, Evans tried to wipe his fingerprints from inside the car and left with Odenat. Once Evans was out of the car, Foster and Hogan rushed Johnson to the hospital where she. later died of her wounds.
At the hospital, Foster and Hogan were questioned by the police, at which time they first told police that a white man driving a cream-colored car shot Johnson over a drug deal. They later changed their story and reluctantly identified Evans as the shooter. The police found Evans at a motel the next morning. He was taken into custody, charged, and after a jury trial, convicted of one count of first-degree premeditated murder, one count of kidnaping and one count of aggravated assault.

Evans, 838 So.2d at 1092-93.

During the guilt phase of the trial, the defense’s theory was that Evans accidentally shot Johnson while trying to hand the gun to her. Odenat’s trial testimony supported this. There was also evidence presented at trial that Evans had been drinking at the time of the shooting. Hogan testified that he and Evans had been drinking earlier that day, and Evans testified that he was slightly intoxicated but was aware of his surroundings and had a clear recollection of what took place in the car at the time of the shooting.

During the penalty phase, defense counsel presented no mental health mitigation. Instead, defense counsel called several character witnesses including Evans, his mother, Lily Evans, and his aunt, Sandra Evans. These witnesses gave positive accounts, of Evans, describing him as a generous man, a good father, a loving and obedient son and grandson, a good friend, and someone who counseled children to stay out of trouble by staying in school. In addition, Lily told the jury that Evans had been an obedient child who was good in school, but that her addiction to crack cocaine had affected his behavior. She also told the jury that Evans had been her inspiration in deciding to stop abusing cocaine. Evans also testified that his mother’s addiction adversely affected him.

The jury recommended the death penalty by a vote of ten to two. The trial judge followed the jury’s recommendation, finding two aggravating circumstances: (1) Evans had been convicted of prior violent felonies; and (2) the crime was committed while Evans was on probation. Evans, 838 So.2d at 1097. Although Evans did not request an instruction on any of the statutory mitigators, the trial court considered each statutory mitigator in its sentencing order and found that none applied. The trial court also found several nonstat-utory mitigating circumstances based in part on the character evidence presented during the. penalty phase. Evans, ..838 So.2d at 1093, 1097. In addition to his death sentence, Evans was sentenced to life imprisonment on the kidnapping count and to a concurrent sentence of 108.15 months with a three-year mandatory minimum term on the aggravated assault count. Id. at 1092.

In May 2001, Evans filed his direct appeal, and in November 2002, this Court issued its decision affirming Evans’ convictions and sentences. Id. at 1099. His convictions and sentences became final in 2003. See Evans v. Florida, 540 U.S. 846, 124 S.Ct. 121, 157 L.Ed.2d 84 (2003) (denying petition for writ of certiorari). On February 26, 2004, Evans filed a rule 3.851 motion for postconviction relief in circuit court raising ten claims, several of which centered upon defense counsel’s failure to discover that Evans suffered a closed head injury at age three. An evidentiary hearing was held on October 19 and 20, 2004, and December 16, 2004. At the evidentia-ry hearing, Evans presented the testimony of five lay witnesses — Lily Evans, Sandra Evans, Oren Evans, Margaret O’Shaunes-sy, and Barbara McFadden; the testimony of three mental health experts — Dr. Richard Carpenter, Dr. Harry A. McClaren, and Dr. Henry Dee;' and the testimony of defense counsel, Kenneth Studstill. Evans also testified.

On February 15, 2005, the trial court issued an order denying each of Evans’ claims. Evans now appeals this order and petitions this Court for a writ of habeas corpus.

II. RULE 3.851 MOTION FOR POSTCONVICTION RELIEF

Evans raises three ineffective assistance of counsel claims. First, he claims trial counsel was ineffective during the guilt phase for failing to investigate, prepare, and present the defense of diminished capacity. Second, Evans claims that trial counsel was ineffective at the penalty phase for failing to adequately challenge the State’s case. Specifically, Evans claims (a) counsel was ineffective for failing to request the appointment of co-counsel to assist in investigating and presenting a case in mitigation during the penalty phase; and (b) counsel was ineffective for failing to adequately investigate Evans’ background and discover available mental health mitigation. Finally, Evans claims counsel was ineffective during the penalty phase for failing to request jury instructions on the statutory mental health miti-gators based on evidence that Evans was drinking at the time of the murder.

Because each of Evans’ ineffective assistance claims alleges that counsel failed to investigate and present mental health mitigation, we turn first to the testimony and evidence presented at Evans’ evidentiary hearing regarding his mental health at the time of the crime. We then address each of Evans’' claims of ineffective assistance. Ultimately, we affirm the trial court’s denial of these claims.

A. Evidentiary Hearing

At the evidentiary hearing, Evans presented evidence of a troubled childhood. He presented his school and medical records, which demonstrated that he was hit by a car and was diagnosed with a closed head injury at the age of three. His mother, Lily, and his aunt, Sandra, witnessed the accident and testified that he stopped breathing for at least a minute after it occurred. They also testified that his speech and language patterns changed, and he began to stutter. In addition, Evans’ life at home was difficult. His father died when he was young, and he grew up with a mother who was addicted to crack cocaine and a stepfather who was abusive. As a result of his stuttering and difficulties at home, Evans was frequently picked on and beaten up by neighborhood children. He eventually retaliated and started fighting frequently. Lily testified that his temper “became pretty quick.” Evans’ brother, Oren, testified that Evans was very aggressive and recalled instances of Evans throwing rocks at a police officer.

Evans’ school records showed a history of speech and learning disabilities, as well as escalating behavioral problems due to anger and aggression. In elementary school, Evans was placed in a class for children with learning disabilities and received speech therapy. While Evans’ IQ tested in the normal range, disparities between his verbal and performance scores on the test indicated severe learning disabilities. Evans received mostly failing grades. In addition to academic problems, Evans was regularly disciplined for being disruptive and, as he got older, was frequently expelled from school for fighting. Evans’ violent behavior escalated from being aggressive with other students to being aggressive with a teacher. He was eventually classified as emotionally handicapped and was recommended for the severely emotionally disturbed program in high school, a program for the most violent students. School psychology reports described Evans as having poor impulse control, displaying excessive aggression, and having difficulty controlling anger. At the evidentiary hearing, Evans’ high school teacher, Barbara McFadden, and counsel- or, Margaret O’Shaunessy, also described Evans as angry, violent, impulsive, and having an explosive temper.

When he was sixteen, Evans dropped out of school, having already begun to establish a criminal record involving violent crimes. Evans' was twenty-eight years old when he shot Johnson. By that time, he had served eight to nine years in prison and juvenile detention facilities, and was on probation for two separate felony convictions. At the evidentiary hearing, Evans described himself as a “jack boy” because he robs drug dealers for a living and testified that he only feels “ready” when strapped with a gun. In addition, Oren described Evans as one of the meanest and most aggressive people he had ever known and recalled instances where Evans would hit women.

All of the defense witnesses at the evi-dentiary hearing said they would have testified at Evans’ trial had they been asked. Only one of these lay witnesses, Lily, was contacted by counsel and asked to testify during the penalty phase.' Sandra testified at the penalty phase but only after appearing on her own and speaking with defense counsel. Both Lily and Sandra testified that they were told by defense counsel to say only good things about Evans at the penalty phase. Sandra testified that she did not discuss Evans’ head injury with defense counsel.

In addition to the lay witness testimony, three mental health experts testified at the evidentiary hearing. Evans’ two experts, Dr. Richard Carpenter and Dr. Henry Dee, and the States expert, Dr. Harry A. McClaren, testified that Evans had brain damage attributable to his head injury. They agreed that the difference between Evans’ verbal and performance scores on his IQ test indicated possible brain damage as further evidenced by his learning disabilities. In addition, they all agreed that based upon his self-reporting, Evans had' abused alcohol throughout his life. Dr. Carpenter testified that Evans told him that he started abusing alcohol at age twelve, and Dr. McClaren testified that Evans told him that he was intoxicated each time he was arrested, starting at age thirteen. Finally, the experts generally agreed that Evans’ behavior at the time he shot Johnson was indicative of antisocial personality disorder. Both Dr. Carpenter and Dr. McClaren characterized Evans as narcissistic and not wanting to admit anything that puts him in a bad light.

However, Dr. Carpenter and Dr. Dee departed from Dr. McClaren over whether Evans’ brain damage led to any particular behavior. Dr. Carpenter and Dr. Dee believed that Evans suffered from an uncontrollable rage reaction or impulse disorder as a result of the brain damage. They agreed that at the time Johnson was killed, Evans’ behavior demonstrated that he was experiencing an uncontrollable rage reaction, which was further exacerbated by his alcohol use. Specifically, Dr. Carpenter testified that Evans’ behavior at the time of the shooting was due to alcohol abuse, impulse disorder, and rage reaction secondary to Evans’ closed-head injury. Dr. Dee testified that Evans’ alcohol use exacerbated his brain damage, causing Evans to experience an instantaneous rage known as “clicking.” Neither expert believed Evans formed the intent to kill Johnson. Rather, both experts testified that because of his impulse disorder, Evans was under the influence of extreme mental or emotional disturbance at the time of the offense and that Evans’ capacity to appreciate the criminality of. his conduct or to conform his conduct to the requirements of the law was substantially impaired at the time of the offense.

While Dr. McClaren agreed that Evans suffered from a brain dysfunction, and some degree of brain damage, he did not agree that Evans’ brain dysfunction led him to behave in any particular way. He testified that Evans’ brain dysfunction was “probably overshadowed by personality characteristics and the effect of alcohol.” Dr. McClaren agreed with Dr. Carpenter and Dr. Dee that alcohol was a significant factor in Evans’ behavior at the time of the shooting, although he could not be certain how much alcohol Evans consumed before shooting Johnson. He testified that Evans reported not drinking alcohol during the car ride and that Evans indicated that he was under control and knew what he was doing at the time of the shooting. Dr. McClaren testified that Evans spoke clearly and logically in his presence and did not stutter while relaying this information. In spite of Evans’ alcohol use, Dr. McClaren believed that Evans’ actions during the car ride and after the shooting indicated that Evans was in control of the situation and was making the decisions in the car. Accordingly, Dr. McClaren believed that Evans understood the criminality of his conduct and did not suffer from extreme mental or emotional disturbance at the time of the murder.

Defense counsel, Kenneth Studstill, also testified at the evidentiary hearing. He testified that he was not aware of Evans’ head injury but that he would have explored it along with any serious brain damage had he been aware of it. Studstill did not explore Evans’ mental health because his conversations with Evans gave him no reason to believe that Evans was insane or incompetent. Moreover, Studstill testified that the presentence investigation reports (PSI) from Evans’ prior convictions indicated that his mental health was perfect and that he had only seen a mental heath expert when he was young. Studs-till did not obtain Evans’ medical records.

Studstill testified that he pursued the accidental shooting defense during the guilt phase because Evans insisted upon it. Studstill was aware Evans had been drinking prior to the murder; however, Evans told Studstill that he was not drunk and “knew what he was doing at the time.” He had no reason to doubt Evans’ veracity and planned to use the conflicting accounts of other witnesses to create confusion about the facts, thereby creating a reasonable doubt as to Evans’ guilt. He also pursued the accident defense because it was supported by Evans’ statements, and, based on Evans’ statements, there was no evidence supporting a heat of passion defense. Studstill further testified that Evans insisted that he was in control and focused. Finally, he testified that Evans never said anything about experiencing a seizure or a blackout.

Regarding the penalty phase, Studstill started preparing more than five months prior to trial. He met with Lily, who told him that Evans had been an obedient child and had received good grades in school. Based on this interview, Studstill asked Lily to provide him the names of potential character witnesses whom he contacted by letter; and he adopted the strategy of showing Evans’ redeeming qualities, such as how Evans spent time with his children and devoted time to his grandmother, at the penalty phase. He chose this strategy because he was aware that Evans’ criminal record indicated a propensity for violence, and he did not want to open the door to the State introducing evidence of Evans’ acts of violence during his teenage years. In addition, Studstill did not recall having any evidence to support statutory mitigation, and he did not consider that Evans may have been under an extreme emotional disturbance or may not have been able to appreciate the criminality of his conduct at the time of the murder. Studstill did not obtain Evans’ school records, nor did he interview other family members. He was not aware Evans had problems in school.

Studstill also testified that nearly three months before trial, he told the trial court that he did not anticipate needing a break between the guilt and penalty phases and did not plan to call any experts for a penalty phase proceeding. Studstill testified that he did not hire an investigator after the guilt phase and that he might have presented evidence of Evans’ violent behavior in school at the Spencer hearing had he known of it.

Regarding his legal experience, Studstill testified that he had practiced law for thirty-eight years, was a board-certified civil trial attorney, and that he began his career as a prosecutor, serving in that capacity for two years. He also testified that he had practiced criminal law over the span of his career and had taken twelve to thirteen death penalty cases to verdict. Studstill was conflict counsel in Brevard County at the time he represented Evans.

B. Standard of Review and Applicable Law

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We defer to the trial court’s findings of fact regarding the credibility of witnesses and the weight assigned to the evidence but review the deficiency and prejudice prongs de novo. Windom v. State, 886 So.2d 915, 921 (Fla.2004) (citing Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999)). “An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel’s representation .‘fell below an objective standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052); see also Hodges v. State, 885 So.2d 338, 345-46 (Fla.2004) (stating and applying Strickland standard). The prejudice prong of the analysis “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Failure to establish either prong results in a denial of the claim. Ferrell v. State, 918 So.2d 163, 170 (Fla. 2005) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

C. Analysis

1. Failure to Present Diminished Capacity Defense at Guilt Phase

Evans first alleges that trial counsel was ineffective for failing to investigate, prepare, and present the defense of diminished capacity at the guilt phase. Based on the mental health experts’ testimony at the evidentiary hearing, Evans argues that trial counsel was ineffective for failing to present evidence that Evans’ head injury led to a deficiency in impulse control, which, in turn, led to Evans’ “clicking” or being unable to control his rage and violent behavior. He claims that this deficiency in impulse control is evident throughout his childhood. Evans claims that at the time he shot Johnson, his condition was further exacerbated by his alcohol use, thereby diminishing his capacity to the point that he was unable to form the intent to kill Johnson.

Evans’ claim is without merit. The trial court correctly held that defense counsel ■ is not ineffective for failing to present the defense of diminished capacity because diminished capacity is not a viable defense in Florida. See Chestnut v. State, 538 So.2d 820, 820 (Fla.1989) (holding that diminished capacity is not a viable defense); see also Hodges v. State, 885 So.2d 338, 352 n. 8 (Fla.2004) (“This Court has held on numerous occasions that evidence of an abnormal mental condition not constituting legal insanity is inadmissible to negate specific intent.”); Spencer v. State, 842 So.2d 52, 63 (Fla.2003) (holding that evidence of defendant’s disassociative state would not have been admissible during the guilt phase). While we have made exceptions for conditions which are “commonly understood” and may be explained to the jury without the assistance of a mental health expert, such as medication, epilepsy, infancy, and senility, Bunney v. State, 603 So.2d 1270, 1273 (Fla.1992), Evans has not alleged that he was experiencing such a condition at the time he shot Johnson. Counsel cannot be ineffective for failing to seek to introduce evidence of a meritless defense at the guilt phase. Jones v. State, 928 So.2d 1178, 1182-83 (Fla.2006) (citing Teffeteller v. Dugger, 734 So.2d 1009, 1023 (Fla.1999) for proposition that “[tjrial counsel cannot be deemed ineffective for failing to raise meritléss claims”). Therefore, we deny this claim.

Moreover, as the trial court found, even if the diminished capacity defense were viable, Evans cannot establish that counsel was ineffective for failing to raise it because it would have been inconsistent with Evans’ theory that the shooting was an accident. Evans insisted at the time of the shooting that he was focused and had a clear recollection of all that had occurred. “[Cjounsel [cannot] be deemed ineffective for failing to pursue such defense when the defense would have been inconsistent with [the defendant’s] theory of the case.... ” Dufour v. State, 905 So.2d 42, 52 (Fla. 2005) (holding that trial counsel was not ineffective for failing to put on defense of voluntary intoxication, in part because defense would have been inconsistent with defense’s theory of innocence) (citing State v. Williams, 797 So.2d 1235 (Fla.2001)). We affirm the trial court’s denial of this claim.

2. Failure to Challenge State’s Case at Penalty Phase

(a) Failure to Request Appointment of Co-Counsel

Evans next alleges that trial counsel was deficient for failing to request the appointment of co-counsel to assist in investigating and presenting mitigation in a capital case pursuant to Guideline 2.1 of the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) (ABA Guidelines). In denying this claim, the trial court determined that Evans failed to establish both prongs under Strickland. We agree.

First, the trial court found that Evans failed to establish that defense counsel’s performance was deficient. The trial court recognized that defense counsel was bound by Brevard County’s guidelines for trying a capital case, not the ABA guidelines, and that Florida Rule of Criminal Procedure 3.112, which adopted the ABA guidelines in part and provides that a judge may appoint co-counsel in a capital case, had not been enacted at the time of Evans’ trial. Second, even if counsel was deficient, the trial court determined that Evans had not demonstrated how counsel’s solo representation prejudiced Evans. As the trial court correctly stated, “[t]he mere fact that a Defendant has been represented by one attorney alone is insufficient to establish a' claim of ineffective assistance of counsel.” See Cole v. State, 841 So.2d 409, 428 (Fla.2003) (“The general allegation that mitigating evidence could have been better presented [had co-counsel been requested and appointed] is an insufficient allegation of prejudice.”); State v. Riechmann, 777 So.2d 342, 359 (Fla.2000) (denying claim of ineffective assistance for failure" to request co counsel where defendant failed to specifically demonstrate how counsel’s solo representation affected outcome of trial). . The trial court’s findings are supported by competent substantial evidence. We affirm.

(b) Failure to Investigate Mental Health Mitigation

Evans next claims that trial counsel was ineffective for failing to adequately investigate his background for mental health mitigation to present at the penalty phase. Evans claims that defense counsel was deficient for failing to discover a wealth of mitigating information, including Evans’ brain injury and lifelong emotional and behavioral problems, and for failing to present anything other than positive character evidence at the penalty phase. Evans alleges that he was prejudiced by counsel’s deficient investigation because discovery and presentation of his brain injury and impulse disorder would have led to an instruction on both mental health statutory mitigators.

We decline to address whether counsel’s investigation was deficient because we affirm the trial court’s conclusion that Evans has failed to demonstrate that he was prejudiced by counsel’s failure to present the mitigation evidence presented at the evidentiary hearing. “[B]ecause the Strickland standard requires establishment of both [deficient performance and prejudice] prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.” Whitfield v. State, 923 So.2d 375, 384 (Fla. 2005) (alteration in original) (quoting Stewart v. State, 801 So.2d 59, 65 (Fla.2001)); see also Sweet v. State, 810 So.2d 854, 863-64 (Fla.2002) (declining to reach deficiency prong based on finding that there was no prejudice).

Evans has failed to establish prejudice because the mitigation evidence he presented at the evidentiary hearing would likely have been more harmful than helpful. “An ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.” Reed v. State, 875 So.2d 415, 437 (Fla.2004). While the testimony presented at the evi-dentiary hearing established that Evans suffered from mental health problems, it also displayed a long history of behavioral problems and escalating violence throughout his school career. Presenting this evidence at the penalty phase would have resulted in the jury hearing about Evans’ aggression towards students and teachers, his aggression towards police officers, his pride in being known as a “jack-boy” because he robs drug dealers, and his habit of carrying a gun. It is just as likely that this evidence would have been more “aggravating” than mitigating. See Reed, 875 So.2d at 436-37 (denying ineffective assistance claim because “even if [defense] counsel had ... investigated further, the testimony that could have been presented was just as likely to have resulted in aggravation against rather than mitigation for [the defendant]”).

Moreover, this mitigation evidence presented at the evidentiary hearing is inconsistent with Evans’ own testimony at the guilt phase. The evidence presented at the evidentiary hearing regarding Evans’ uncontrollable rage disorder is inconsistent with his testimony that he had a “clear recollection” of the shooting because he was focused and in control.

Based on the foregoing, Evans has not established that there is a reasonable probability that his sentence would have been different had counsel discovered and presented the mitigation evidence Evans presented at the evidentiary hearing. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (establishing that appropriate test for prejudice is whether defendant has demonstrated reasonable probability that- outcome would have been different but for counsel’s unprofessional errors and defining reasonable probability as “probability sufficient to undermine confidence in the outcome”). Therefore, we are confident in the outcome and affirm the trial court’s denial of this claim.

3. Failure to Request Jury Instructions on Mental Health Statutory Mitigators

Finally, Evans alleges that counsel was ineffective for failing to request jury instructions on the mental health statutory mitigators based on evidence at trial that Evans was drinking prior to shooting Johnson'and was slightly intoxicated at the time of the shooting. In particular, Evans points to three places in his trial testimony where he admits he was drinking prior to the shooting and to Sammy Hogan’s testimony that he and Evans had been drinking, together earlier that day. Evans argues that this evidence was sufficient to justify a jury instruction on the mental health statutory mitigators and that counsel was deficient for failing to make this request. Evans argues that he was prejudiced because had counsel requested these instructions, the jury would have been instructed on the mental health statutory mitigators, creating a reasonable probability that the jury would not have recommended the death sentence.

The trial court found that counsel was not ineffective for failing to request the mental health statutory mitigators on the basis that Evans was “slightly” intoxicated at the time of the shooting. The trial court held that' counsel could not ■ be deemed deficient for “failing to present a mitigator that was not supported by the record or would have been inconsistent with the evidence and testimony presented by the defendant.” Cherry v. State, 781 So.2d 1040, 1050 (Fla.2000). Specifically, the trial court found that evidence of Evans’ intoxication was refuted by Evans’ trial testimony that while he was slightly intoxicated he was not drunk and had a clear recollection of what happened. Furthermore, the trial court found that these mitigators were inconsistent with the defense’s theory that the shooting was an accident. Thus, the trial court found that counsel was reasonable for not requesting instructions on the mental health statutory mitigators. The trial court also found that Evans had not demonstrated how counsel’s failure to request these instructions prejudiced him.

The trial court’s findings regarding the deficiency prong are supported by the record. As the trial court noted, Evans’ trial testimony clearly refuted his current argument that he was impaired at the time of the shooting. Evans insisted that the shooting was an accident and that, in spite of having consumed some alcohol, he was focused and had a clear recollection of everything that was happening. In light of these circumstances, we agree with the trial court that counsel’s decision not to request instructions on statutory mitigation for lack of grounds was reasonable. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.”); see also Brown v. State, 894 So.2d 137, 146 (Fla.2004) (same). Thus, counsel cannot be deemed deficient for failing to> request an instruction on a mitigator that “would have been inconsistent with the evidence and testimony presented by the defendant.” Cherry, 781 So.2d at 1050.

In addition, Evans has not demonstrated that he was prejudiced by counsel’s failure to request these instructions because he has not shown that the sentencing court would have given the instructions on statutory mitigation to • the jury. In Cooper v. State, 492 So.2d 1059, 1062 (Fla. 1986), we held that the trial court did not err by refusing to instruct the jury on statutory mitigation because “the presentation of evidence of some alcohol and marijuana consumption, without more, does not require a jury instruction.” See also Duest v. State, 855 So.2d 33, 42 (Fla. 2003) (citing Cooper for this proposition). We have recognized that “evidence of [the defendant’s] probable mental state at the time of the murder, [or] evidence of a pervasive mental condition that affected [the defendant] every day” is required. Duest, 855 So.2d at 42 (holding that trial court did not err in refusing to give statutory mitigation instructions because, although there was evidence of defendant’s “long-term drug abuse and consumption of intoxicants ... in the hours preceding the crime” there was “no evidence indicating that [defendant] was substantially impaired at the time of the murder or that his ability to control his behavior was reduced by drug or alcohol abuse”) (citing Cooper, 492 So.2d at 1062).

Based on the record, Evans has not shown that the sentencing court would have given these instructions had counsel requested them. At the guilt phase, there was no evidence presented that Evans suffered a pervasive mental condition or that he was under the influence of alcohol to the extent that he could not control his actions. The only evidence of Evans’ “probable mental state” at the time of the murder was his trial testimony and, as in Duest, this testimony does not support an instruction on the mental health statutory mitigators.

Furthermore, we recognize that the sentencing court considered the mental health statutory mitigators and found no evidence to support them. We find that Evans has not demonstrated that there is a reasonable probability that his sentence would have been different had counsel requested instructions on statutory mitigation based on Evans’ use of alcohol prior to the shooting. We are confident in the outcome -and therefore affirm the trial court’s denial of this claim.

III. PETITION FOR WRIT OF HABEAS CORPUS

Having affirmed the trial court’s denial of Evans’ 3.851 motion, we now consider Evans’ petition for writ of habeas corpus. In his petition, Evans raises six claims. We limit our discussion to two of these claims and deny relief for the reasons stated below.

Ring Claim

Evans argues that Florida’s death penalty statute, section 921.141, Florida Statutes (2002), as applied to him is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Notwithstanding that Evans’ direct appeal was in the “pipeline” when Ring was decided in 2002, this claim is procedurally barred because Evans did not preserve this claim by challenging the constitutionality of Florida’s sentencing scheme both at trial and on direct appeal. Notwithstanding this procedural bar, Evans would not be entitled to relief under Ring because the trial court found the prior violent felony conviction aggravator applied in his case. “[T]his Court had repeatedly relied on the presence of the prior violent felony aggravating circumstance in rejecting Ring claims.” Morris v. State, 931 So.2d 821, 837 (Fla.2006). A defendant’s prior violent felony conviction is “ ‘a factor which under Apprendi and Ring need not be found by the jury,’ ” Dufour, 905 So.2d at 75 (quoting Jones v. State, 855 So.2d 611, 619 (Fla.2003)). Thus, even if Evans’ claim were properly preserved, he would not be entitled to relief under Ring.

Cumulative Error

Evans claims he was deprived of a fundamentally fair trial because the cumulative errors in his trial dictated the sentence he received. This claim is without merit. Because Evans has failed to prevail on the merits of any of his individual claims on direct appeal, in this appeal, or in his petition for habeas corpus, we deny his claim that he was deprived of a fundamentally fair trial on the basis of cumulative error. See Morris, 931 So.2d at 837 (denying claim based on cumulative error where the individual claims making up the cumulative claim were either procedurally barred or without merit); Dufour, 905 So.2d at 75 (finding that claims failed cumulatively where individual claims presented in habeas petition and in motion for posteonviction relief provided no basis for relief) (citing Porter v. Crosby, 840 So.2d 981 (Fla.2003)).

IV. CONCLUSION

For the reasons set forth above, we affirm the trial court’s denial of Evans’ motion for postconviction relief, and we deny his petition for a writ of habeas corpus.

It is so ordered.

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

PARIENTE, J., specially concurs with an opinion, in which ANSTEAD, J., concurs.

PARIENTE, J.,

specially concurring.

I concur in the decision in this case and in the majority’s discussion of each of Evans’ claims, with the exception of its disposition of the claim that the death sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Rather than base our denial on a waiver or procedural bar, I would reject the claim solely on the basis of the prior violent felony aggravator. As the majority acknowledges, this death-qualifying aggravator found by the trial court satisfies the requirements of the Sixth Amendment. See Jones v. State, 855 So.2d 611, 619 (Fla.2003) (noting that prior violent felony conviction aggravator was “a factor which under Apprendi and Ring need not be found by the jury”); Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (rejecting Ring claim where one of the aggravating circumstances found by the trial judge was defendant’s prior conviction for a violent felony).

This is a “pipeline case” — one that was pending on direct appeal when Ring was decided. Since the Ring claim is without merit, we should not reach the issue of whether the Ring claim was waived when it was not raised on direct appeal. We have already decided that Ring is not retroactive. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005). We should wait for a case in which the Ring claim would otherwise have merit before delving into the implications of the failure to preserve a Ring claim on direct appeal in pipeline cases.

ANSTEAD, J., concurs.

      . This defense was based on the version of events Evans eventually relayed to police. Initially, Evans told police that he was never in Hogan’s car with Johnson. Later, he recanted this statement and told police as well as defense counsel, the trial court, and the jury that he accidentally shot Johnson.

      . The other witnesses who testified at Evans’ penalty phase were: Minnie Jarrett, Evans' cousin; Linda Key, Evans' lifelong friend; and Patty Walker, Evans' friend.

      . The nonstatutoiy mitigators were: (1) Evans experienced an abused or deprived childhood; (2) he contributed to society; (3) he performed charitable deeds; (4) he counseled youth to avoid crime and stay in school; and (5) he exhibited good behavior in prison. Evans, 838 So.2d at 1097.

      . Evans raised six issues on direct appeal. He claimed that the trial court erred during the guilt phase by (1) permitting the introduction of hearsay testimony on the grounds that the statements constituted excited utterances; (2) denying his motion for a mistrial based on comments made by the prosecutor during closing argument; (3) denying his motion for judgment of acquittal as to the murder charge because the State did not sufficiently establish premeditation; and (4) improperly instructing the jury on kidnapping. He claimed that the trial court erred during the penalty phase by (5) permitting the State to introduce portions of his presentence investigation reports (PSI) from prior convictions. Finally, he claimed that (6) the death sentence was disproportionate. Id. at 1093-99.

      . In his motion for postconviction relief, Evans claimed that counsel was ineffective (1) at the guilt and penalty phases for failing to impeach the State's witnesses, Sammy Hogan and Erica Foster; (2) at the guilt phase for failing to investigate, prepare, and present the defense of diminished capacity; (3) at the penalty phase for failing to adequately challenge the State's case; and (4) at the penalty phase by failing to request that a jury instruction be given on statutory mitigation.
      In addition, Evans raised six other claims in his rule 3.851 motion for the express purpose of preserving them for federal review. Evans alleged that (5) the Florida death sentencing statute is unconstitutional as applied; (6) section 921.141, Florida Statutes, providing that the jury’s role is advisory, violates the Eighth Amendment; (7) his Eighth Amendment right against cruel and unusual punishment will be violated because he may be incompetent at the time of execution; (8) the cumulative errors in his trial unconstitutionally deprived him of a fair trial; (9) the jury instructions improperly shifted to him the burden of proving that death was inappropriate; and (10) execution by lethal injection constitutes cruel and unusual punishment in violation of his constitutional right to due process and equal protection under the law. In addition, for claims (6), (7), and (9), Evans claimed that appellate counsel was ineffective for failing to litigate these issues.

      .Evans appeals only the trial court’s denial of claims 2, 3, and 4. Evans does not appeal the trial court’s denial of his last six claims, but, instead, raises these claims in his petition for writ of habeas corpus.

      . We do not address Evans’ claims that counsel was ineffective for failing to present evidence to support the two statutory mental health mitigators because these issues are solely dependent upon our resolution of whether counsel failed to conduct an adequate investigation into Evans' mental health (claim 2(b)).

      . Within this claim, Evans also attempts to raise an issue under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). This issue is procedurally barred because it was not raised on direct appeal. See Marshall v. State, 854 So.2d 1235, 1248 (Fla. 2003).

      .Evans' injury is noted in his school records because Evans' mother relayed the incident to a school social worker during one of Evans' evaluations.

      . As an adult offender, Evans has two prior felony convictions for battery upon a law enforcement officer and one prior conviction for aggravated battery.

      . These convictions were for possession of a firearm and escape.

        .In preparing their reports, each expert interviewed Evans, reviewed Evans’ medical and school records, reviewed the transcripts from the trial, reviewed the interviews of the witnesses called at trial, and ran a battery of tests.

      . Specifically, Dr. Carpenter’s 'clinical impression” or diagnosis of Evans was in accordance with Axis I of the Diagnostic and Statistical Manual of Mental Disorders (4th .ed. 2000) (DSM IV) test: "Axis I: Alcohol abuse; Impulse Disorder; Rage Reaction Secondary to Closed Head Injury."

      . Specifically, Dr. Dee’s report provided the following "summary impression” of Evans:
      Looking at the lifelong history that Mr. Evans has, with learning disabilities, a lack of behavioral and impulse control, which included frequent rages, often when they were frankly inexplicable to others, attentional problems, over activity, etc., would strongly seem to support the diagnosis of cerebral damage early in childhood, probably resulting from the accident [at] age 3.

      . Although Evans did not tell Dr. Dee the shooting was an accident, Dr. Dee testified that "[i]t seems he shot her without question, and he was very angry at the time.”

      . Specifically, Dr. McClaren diagnosed Evans as a "non-psychotic man operating within the average range of intellect.” He also stated:
      There certainly is evidence that he sustained a closed head injury as a young child and subsequently had difficulties with his behavior and learning in school which progressed to juvenile delinquency and adult criminality. While some minor degree of brain dysfunction is certainly a possibility given his history of head injury and emotional and behavioral problems as a child prior to the onset of criminality!,] his behavior later in life appears to be more associated with a criminal lifestyle than with the effects of some disabling cognitive disorder of such a severity to cause impairments which would be a significant difficulty for him.
      Regarding the DSM-IV test, Dr. McClaren reported that Evans "appears to meet ... AXIS I criteria for Alcohol Abuse in Remission in a Controlled Environment and AXIS II diagnosis of Antisocial Personality Disorder.” Dr. McClaren further noted that Evans "probably meets the AXIS II diagnosis of Personality Disorder, Not Otherwise Specified with Narcissistic and Paranoid Traits.” Dr. McClaren also reported that he could not rule out the "possibility” that Evans "suffers from a Cognitive Disorder, Not Otherwise Specified, associated with the after affects of a childhood concussion and other blows to the head ... given his documented history of head injury as a child, as well as ... fights, football, and boxing.”

      . Studstill testified that in previous cases, he had been successful in having clients examined and committed but stated, "I didn't have any reason in the world to think there was anything wrong with Wydell Evans' mind in the sense that it would be a mitigating factor of any kind, and certainly not a defense in the guilt or innocence phase of the trial.”

      . Studstill testified that he conducted a thorough investigation into Evans' guilt phase defense. He hired a private investigator, a former homicide detective, to interview the State’s witnesses prior to trial. Primarily, he was looking for further inconsistent statements among the witnesses, in particular, between Odenat, Foster, and Hogan, because their accounts of Johnson’s death were not entirely consistent with one another.

      .In the letters, Studstill asked the potential character witnesses to state (1) how long they had known Evans, (2) in what capacity, and (3) what they thought of Evans as a person and whether they felt that he committed the homicide.

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

      . We note that while Bunney also includes intoxication as one of the "commonly understood" conditions, voluntary intoxication due to alcohol is no longer admissible to negate specific intent during the guilt phase. § 775.051, Fla. Stat. (1999). In addition, Evans' trial testimony regarding his use of alcohol does not support a voluntary intoxication defense, nor has Evans alleged that his counsel was ineffective for failing to raise a voluntary intoxication defense during the guilt phase.

      . Guideline 2.1 states that "[i]n cases where the death penalty is sought, two qualified trial attorneys should be assigned to represent the defendant.”

      . Studstill testified that he had followed Bre-vard County’s standards for handling capital cases, not the ABA’s. He also testified that it is not his practice to request co-counsel, and he did not move to have penalty phase co-counsel appointed in Evans' trial.

      . We note that we distinguished Cherry in Ragsdale v. State, 798 So.2d 713, 719 (Fla. 2001), on the distinct issue of whether counsel was ineffective for failing to investigate and present mitigation evidence and stated:
      "In contrast to Cherry, we find no evidence that Ragsdale was uncooperative or that he precluded his counsel from investigating and presenting evidence in mitigation.”

      . In addition to the claims discussed above, Evans alleges the following claims (renumbered and restated from note 5, supra): (1) the jury was unconstitutionally instructed that its role was merely "advisory” and that this diminution of the jury's role violated the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (2) his constitutional rights may be violated because he may not be competent to be executed; (3) the jury instructions violated his constitutional rights by improperly shifting the burden of proof to him to show that death was inappropriate; and (4) execution by lethal injection constitutes cruel and unusual punishment in violation of his constitutional rights. Evans concedes that claim (2) is not yet ripe for review. Because claims (1), (3), and (4) are procedurally barred, Evans also alleges that appellate counsel was ineffective for failing to litigate these issues on direct appeal. However, because claims (1) and (4) are meritless and claim (3) was not preserved for direct appeal, “[ajppellate counsel cannot be ineffective for failing to present [these] meritless issue[s]” Dufour, 905 So.2d at 74.

      . See Floyd v. State, 808 So.2d 175, 187 (Fla.2002) (finding that a claim of constitutional error under Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), was not preserved for post-conviction review because it was not raised both at trial and on direct appeal); Downs v. State, 740 So.2d 506, 517 (Fla.1999) (finding that claim of Espinosa error was procedurally barred on post-conviction review where not raised at both trial and on direct appeal although Espi-nosa decided while direct appeal in pipeline); Espinosa v. State, 626 So.2d 165, 167 (Fla. 1993) (on remand) (holding in part that even if constitutional claim were not procedurally barred, constitutional error did not require reversal); Washington v. Recuenco, - U.S. -, -, 126 S.Ct. 2546, 2551-52, 165 L.Ed.2d 466 (2006) (clarifying that a constitutional error is not necessarily a structural error requiring reversal and citing Ring as example).


source: Caselaw Access Project

author: PER CURIAM. ALTENBERND, Judge,

license: Public Domain

text:
    David A. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2992.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.
    Rehearing Denied May 24, 2006.
   PER CURIAM.

David A. Butler appeals the summary denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. Butler raised seven claims in his motion. We affirm six of Butler’s claims without comment but reverse and remand for an evidentiary hearing on the remaining claim.

Butler was charged with burglary, grand theft of a motor vehicle, and possession of marijuana. The jury acquitted Butler on the grand theft of a motor vehicle and possession of marijuana charges but found him guilty of the lesser-included offense of trespass of an occupied structure or conveyance.

In claim six of his motion, Butler alleged that two key prosecution witnesses, David Butler Jr. (Butler’s minor son) and Joanne Kassis (David Butler Jr.’s mother), had testified falsely at trial. Attached to the motion is an affidavit executed by Kas-sis in which she stated that both she and her son were recanting their trial testimony. In the affidavit, Kassis asserted Butler’s innocence and claimed that she and her son had lied at Butler’s trial. Kassis stated that although her son had told her prior to trial that he had allowed Butler into their residence on the night of the alleged offense, she had testified falsely at trial that she did not know how Butler had gained entry. Kassis also stated that her son had lied at trial and that he now admitted that he had gotten up and opened the door for Butler to enter. Butler alleged that if his son had testified truthfully at trial that he had opened the door for Butler, the jury would have acquitted him of the lesser-included offense of trespass of an occupied structure or conveyance. Butler’s motion is facially sufficient to state a claim of newly discovered evidence based on the recantation by the State’s key witnesses of their trial testimony. See McLin v. State, 827 So.2d 948 (Fla.2002); Keen v. State, 855 So.2d 117 (Fla. 2d DCA 2008).

The postconviction court denied Butler’s claim on the ground that the affidavit from Kassis was not sufficient to show that her son was recanting his trial testimony. At this stage in the proceedings, Kassis’ affidavit asserting that both she and her son were recanting their trial testimony was sufficient to warrant an evi-dentiary hearing. See Hilbert v. State, 666 So.2d 1059 (Fla. 5th DCA 1996). Moreover, “rule 3.850 does not require the filing of supporting affidavits; it only requires a brief statement of facts in support of the motion.” Roundtree v. State, 884 So.2d 322, 323 (Fla. 2d DCA 2004) (citing Valle v. State, 705 So.2d 1331 (Fla.1997), and Smith v. State, 837 So.2d 1185 (Fla. 4th DCA 2003)). Based on the limited record before us and taking the motion’s allegations and the affidavit as true, we conclude that Butler’s allegations are legally sufficient to warrant an evidentiary hearing on his claim. See Jones v. State, 591 So.2d 911 (Fla.1991). Accordingly, we reverse the order to the extent that it summarily denied claim six of Butler’s motion, and we remand for an evidentiary hearing on that claim only. We affirm the order in all other respects.

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ„ Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

Mr. Butler is not currently serving any sentence related to this offense, which occurred in 2002. He was convicted of a misdemeanor in this ease and sentenced to nine months in jail. He is now in prison due to unrelated felonies. It appears likely that the time he spent in jail for this misdemeanor also served as jail credit in the unrelated felonies.

He has filed a postconviction proceeding seeking relief from the misdemeanor. He attaches an affidavit from Ms. Kassis, the mother of his child, in which she confesses that she committed perjury in an official proceeding and that their son, who must now be approximately ten years old, also testified falsely at his trial. Thus, to relieve himself of one misdemeanor on his criminal record, Mr. Butler is attempting to establish that the mother of his son committed a third-degree felony. See § 837.02(1), Fla. Stat. (2002). Because the time to file a postconviction motion under rule 3.850 is extended by an appeal and, thus, can be longer than the time limitations period for prosecution of a third-degree felony, Ms. Kassis probably can no longer be prosecuted for this offense (unless the false statement is actually in the affidavit). See § 775.15, Fla. Stat. (2002).

I agree that our opinion is an accurate statement of the facts in this ease and a correct application of the law. Providing this level of postconviction relief for such a misdemeanor, especially when the defendant is serving a long term of imprisonment for other felonies, just seems like an odd use of government resources.


author: BROWNING, J.

text:
    Willie J. RUSSELL, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-0431.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.
    Rehearing Denied Jan. 12, 2007.
    Willie J. Russell, Pro se, Petitioner.
    Susan Schwartz, Assistant General Counsel, Tallahassee, for Respondent.
   BROWNING, J.

The respondent revoked the petitioner’s parole based on his admission of having used cocaine during his period of parole, in violation of Condition (4)(b) of his terms and conditions of parole. In a petition for writ of certiorari, the petitioner seeks review of a final order of the circuit court, sitting in its review capacity, denying his petition for writ of habeas corpus challenging the parole revocation. Because the petition filed in the circuit court failed to set out a prima facie basis for relief, the court had no proper basis to issue a show-cause order, and it did not do so. See Fla. R. Civ. P. 1.630(d); Russell v. McGlothin, 427 So.2d 280, 282 (Fla. 2d DCA 1983) (“A probationer’s admissions against interest may, as a matter of law, be sufficient to revoke his probation.”). Petitioner has not met his burden to show entitlement to certiorari relief in this second-tier review. See generally Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). Accordingly, the petition is DENIED.

BARFIELD and VAN NORTWICK, JJ., concur.


author: PER CURIAM.

text:
    ORANGE COUNTY FIRE & RESCUE and Unisource Administrators, Inc., Appellants, v. Henry MILLS, Appellee.
    No. 1D06-0007.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 3, 2007.
    Barbara A. Eagan of Broussard, Cullen, Degailler & Eagan, P.A., Orlando, for Appellants.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., for Florida Insurance Council, Amicus Curiae for Appellants.
    Todd J. Sanders and Paul A. Kelley of Bichler & Kelley, R.A., Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED. See Remington v. City of Ocala, 940 So.2d 1207 (Fla. 1st DCA 2006).

WOLF, LEWIS, and THOMAS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Arthur WARD, a/k/a Arthur Lee Ward, Doc # 034788, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3491.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 24, 2007.
   ALTENBERND, Judge.

Arthur Ward appeals the order denying his motion for “resentencing” that the circuit court properly treated as a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the order.

Mr. Ward was charged in three informa-tions with five offenses. He was sentenced at a single sentencing hearing in April 2001. He pleaded nolo contendere and agreed to certain sentences, the longest of which was fifteen years’ imprisonment as a prison releasee reoffender (PRR). See § 775.082(9), Fla. Stat. (2000). At the sentencing hearing, the State relied on a signed affidavit from the Department of Corrections certifying his last release date for the purpose of establishing his eligibility for sentencing as a prison releasee reof-fender. Mr. Ward did not object to that procedure.

In August 2005, Mr. Ward filed this motion, essentially alleging that his sentence is illegal because the affidavit from the Department of Corrections was not self-authenticating or otherwise admissible in evidence. He does not allege or even suggest that he was legally ineligible for PRR sentencing in April 2001. Without regard to the sufficiency of the allegations, we conclude that this type of alleged error in sentencing procedure is not a matter that would render a PRR sentence an illegal sentence. This is not an issue that can be raised at any time pursuant to rule 3.800(a). Instead, it is comparable to the procedural issues involved in habitual offender sentencing and guidelines sentencing that must be challenged on direct appeal or by a timely motion pursuant to Florida Rule of Criminal Procedure 3.850. See Wright v. State, 911 So.2d 81 (Fla. 2005); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991); Johnson v. State, 917 So.2d 1011 (Fla. 4th DCA 2006).

Affirmed.

CASANUEVA and WALLACE, JJ., Concur.

      . Although not disclosed in his motion, Mr. Ward filed direct appeals in all three of these cases and also filed an appeal of an order denying a motion pursuant to rule 3.850. All of these proceedings were affirmed on appeal. See Ward v. State, 888 So.2d 37 (Fla. 2d DCA 2004); Ward v. State, 837 So.2d 982 (Fla. 2d DCA 2002); Ward v. State, 835 So.2d 1135 (Fla. 2d DCA 2002); Ward v. State, 827 So.2d 1000 (Fla. 2d DCA 2002).


text:
    ORANGE COUNTY FIRE RESCUE and Unisource Administrators, Inc., Appellants, v. Tony ANTONELLI, Appellee.
    No. 1D06-0204.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 3, 2007.
    Barbara A. Eagan and Karen J. Cullen of Broussard, Cullen, Degailler & Eagan, P.A., Orlando, for Appellants.
    Todd J. Sanders and Paul A. Kelley of Bichler & Kelley, R.A., Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED. See Remington v. City of Ocala, 940 So.2d 1207 (Fla. 1st DCA 2006).

WOLF, LEWIS, and THOMAS, JJ., concur.


author: ORFINGER, J.

text:
    Purdie BURKES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3523.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Rehearing Denied Jan. 19, 2007.

      James S-. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Purdie Burkes appeals his conviction of DUI manslaughter. While none of the issues raised by Mr. Burkes require reversal, one merits discussion.

Mr. Burkes was charged with DUI manslaughter after the vehicle that he was driving on a dark, foggy night, struck and killed a bicyclist. At trial, the State presented the testimony of Corporal Brian Rayner, a. traffic homicide investigator with the Florida Highway Patrol. Corporal Rayner provided extensive testimony regarding the observations, photographs and measurements he made at the accident scene shortly after the crash. As part of his investigation, Corporal Rayner sprayed paint on the roadway so that “yaw marks” left by Mr. Burke’s vehicle would be more visible in the photographs. As the trial would unfold, the yaw marks were important in helping to determine if Mr. Burkes drifted off the paved roadway and struck the bicyclist directly from behind as he was coming back onto the roadway as the State argued, or whether the bicyclist was riding on the white fog line marking the far right limit of the pavement and was sideswiped by Mr. Burkes who was unable to see her due to the darkness and fog as the defense contended.

The defense called Sal Fariello as an expert witness in accident reconstruction. Mr. Fariello testified that when he visited the accident scene some' thirteen months after the accident occurred, the paint marks that Corporal Rayner had sprayed on the pavement were still present, and that he used those marks in reaching his conclusions regarding the cause of the accident. After Mr. Fariello’s testimony, the defense rested and court adjourned for the day. The next morning, the State recalled Corporal Rayner as a rebuttal witness. Corporal Rayner testified that at the prosecutor’s request, he had gone to the accident scene earlier that same morning (approximately a month after Mr. Fariello’s visit), to determine if any of the paint marks he placed on the roadway still remained. He testified that none of the paint marks were still there, which was not surprising to him, because the temporary paint he used lasts only two or three months. Mr. Burkes’s counsel immediately objected to Corporal Rayner’s rebuttal testimony, contending that any testimony about Corporal Rayner’s mid-trial visit to the accident scene was a'discovery violation. Concluding that rebuttal witnesses need not be disclosed, the trial judge overruled the objection.

While we disagree with the trial court’s conclusion that rebuttal witnesses are not subject to the discovery requirements imposed by Florida Rule of Criminal Procedure 3.220(b), see Sharif v. State, 589 So.2d 960 (Fla. 2d DCA 1991) (holding that identity of rebuttal witnesses is not excepted from State’s discovery obligation), we nevertheless affirm, because the State was under no obligation to disclose Corporal Rayner’s mid-trial observations at the accident scene.

Florida Rule of Criminal Procedure 3.220(b) sets forth the prosecutor’s obligation to provide discovery. That rule provides in pertinent part:

(b) Prosecutor’s Discovery Obligation.
(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state’s possession and control:
(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto....
(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The term “statement” as used herein includes ... any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording.... The term “statement” is specifically intended to include all police ■ and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are complied ....

Fla. R.Crim. P. 3.220(b). Under this rule, it is apparent that Corporal Rayner, the lead investigator, was a person whom the State, was obliged to disclose as having information relevant to the case. That obligation is not in dispute here.

Florida Rule of Criminal Procedure 3.220<j) establishes a continuing duty to disclose. That rule provides:

If, subsequent to compliance with the rules [of discovery], a party discovers additional witnesses or material that the party would have been under a duty to disclose or produce at the time of the previous compliance, the party shall promptly disclose or produce the witnesses or material in the same manner as required under these rules for initial discovery.

Fla. R.Crim. P. 3.220(j). This rule is violated when the State or the defense withholds “additional witnesses or material” that, if discovered earlier, would have been subject to mandatory disclosure.

According to Mr. Burkes, the State would have been required to disclose Corporal Rayner’s anticipated testimony resulting from his mid-trial visit to the accident scene under rule 3.220 as a “police or investigative” report. We disagree with Mr. Burkes’s interpretation of the State’s discovery obligation. Corporal Rayner’s rebuttal testimony was not Brady material and was not a material alteration to an existing written or recorded statement previously provided by the State to the defendant or obtained by the defendant at deposition. Scipio v. State, 928 So.2d 1138, 1143 (Fla.2006). Nor was it a statement as contemplated by rule 3.220(b)(1)(B). While the term “statement” includes all police and investigative reports, courts construing rule 3.220(b)(1)(B) have determined that the State is not required to disclose to the defendant a witness’s oral statement when such statement has not been reduced to writing or recorded in a manner prescribed by the rule. See, e.g., Olson v. State, 705 So.2d 687, 690-91 (Fla. 5th DCA 1998). To do otherwise would require the prosecutor to record and disclose virtually any case related conversation with an investigator.

For these reasons, we conclude that no discovery violation occurred and, consequently, there was no need to conduct a Richardson hearing. In doing so, we do not suggest that prosecutors should encourage witnesses, including law enforcement officers, to refrain from putting relevant information into written form in the normal course of business. However, in this instance, there is no suggestion that the State was playing “hide the ball.” To the contrary, the defense expert had not provided a written report prior to trial, and, as a result, the State first heard of Mr. Fariello’s reliance on the paint marks during the trial. We .see no violation of either the letter or spirit of the discovery rules, and, consequently, affirm Mr. Burkes’s conviction and sentence.

AFFIRMED.

PLEUS, C.J., and GRIFFIN, J„ concur.

      . A yaw mark is a rubber mark left on the road by a tire after a vehicle is turned suddenly from its direct course.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the State must disclose material information within the State's possession or control that tends to negate the guilt of the defendant).

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


text:
    Hal LEARY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4797.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Rehearing Denied Jan. 12, 2007.
    Hal Leary, pro se, Petitioner.

      Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    Thomas J. SCHWANDA, d/b/a Electro Tech Associates, Appellant, v. WOODBINE INDUSTRIES, INC., Appellee.
    No. 5D05-3415.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2006.
    Rehearing Denied Dec. 15, 2006.
    Robert P. Avolio of Avolio & Hanlon, P.C., St. Augustine, for Appellant.
    Kevin B. Weiss, of Weiss Legal Group, P.A., Maitland, for Appellee.
   PER CURIAM.

AFFIRMED. See Erickson v. Breedlove, 937 So.2d 805 (Fla. 5th DCA 2006).

THOMPSON, LAWSON and EVANDER, JJ., concur.


text:
    Erskine J. WARE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4977.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Rehearing Denied Jan. 12, 2007.
    Erskine J. Ware, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    Emma MURRAY, Appellant/Cross-Appellee, v. MARINERS HEALTH/ACE USA, Appellees/Cross-Appellants.
    No. 1D06-0475.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.
    Rehearing Denied Jan. 12, 2007.

      Brian O. Sutter, Port Charlotte; and Bill McCabe, Longwood, for .Appellant/Cross-Appellee.
    John R. Darin, II, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellees/Cross-Appellants.
   PER CURIAM.

The claimant, Emma Murray, appeals the Judge of Compensation Claims’ (JCC) order awarding an attorney’s fee in strict accordance with the guideline formula set forth in section 440.34(1), Florida Statutes (2005). The appellant’s constitutional challenges to this statute, as significantly amended in 2003, were considered and rejected in our recent decisions in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (1st DCA 2006); and Campbell v. Aramark, 933 So.2d 1255 (1st DCA 2006). Accordingly, we are constrained to affirm the JCC’s award of a reasonable attorney’s fee based on the statutory guideline formula. See Wood v. Fla. Rock Indus., 929 So.2d 542 (Fla. 1st DCA 2006), granting motion for certification, 929 So.2d 545 (Fla. 1st DCA 2006).

As in Wood, Lundy, and Campbell, we certify the following as a question of great public importance:

DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY’S FEE TO BE AWARDED A CLAIMANT?

We AFFIRM the JCC’s order on trial attorney’s fees and costs and DENY the motion for appellate attorney’s fees. The issues on cross-appeal are affirmed.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Richard HALE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4385.
    District Court of Appeal of Florida, First District.
    Dec. 4, 2006.
    Rehearing Denied Jan. 12, 2007.
    Richard Hale, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent:
   PER CURIAM.

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

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    Autley MOBLEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-5995.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2006.
    Rehearing Denied Jan. 12, 2007.
    Autley Mobley, pro se, Petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying his petition for writ of mandamus is without merit and is rejected. But because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681(Fla. 1st DCA Jan.26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s June 30, 2005, order on indigency imposing a lien as a result of petitioner’s filing of the petition for writ of mandamus. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

The petition is DENIED as to the challenge to the order by which the circuit court denied mandamus relief, but we QUASH that portion of the indigency order which imposed a lien.

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    Herbert W. MABIRE, Appellant, v. ST. PAUL GUARDIAN INSURANCE CO. a/k/a Travelers/St. Paul Fire & Marine, f/k/a USF & G, Appellee.
    No. 1D06-2818.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.

      John L. Myrick, Pensacola, for Appellant.
    Douglas F. Miller of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellee.
   PER CURIAM.

Appellant Herbert Mabire brings this appeal from the circuit court’s dismissal of his petition for rule nisi, pursuant to section 440.24(1), Florida Statutes, to enforce a compensation order entered by the Judge of Compensation Claims (JCC) in 1999. In particular, appellant argues that the circuit court erred in concluding that the compensation order was non-final and thus dismissing for lack of jurisdiction the petition for rale nisi. We agree with appellant that the compensation order was final, and reverse the dismissal below.

On October 19, 1977, appellant, then an employee of Noonan Construction, sustained a compensable injury to his left knee. He underwent a series of surgeries and treatments, but nonetheless suffered a permanent disability and was unable to return to work. Thereafter, appellant petitioned the JCC to issue an order requiring appellee, the insurance carrier, to construct and maintain a heated exercise pool to treat appellant’s disability. On March 27, 1997, the JCC entered a compensation order, which provided that appellee construct the heated pool at appellant’s residence in Seminole, Alabama. Although the appellee did take steps towards installing the pool over the following year, a number of construction defects apparently rendered the pool unusable for rehabilitation or treatment. Thus, appellant filed a second petition for benefits, asking the JCC to order appellee to correct the problems. In a second compensation order, dated June 22, 1999, the JCC ordered the appellee to repair or rebuild the exercise pool, and this time provided detailed specifications and dimensions to. guide construction. The JCC also provided that the court would reserve jurisdiction over all issues until “construction, modification and provision of all items specified herein have been completed.”

On November 17, 2005, the appellant filed a petition for rule nisi in the circuit court to enforce the 1999 compensation order. In response, appellee filed a motion to dismiss the petition for lack of subject matter jurisdiction. Appellee argued that the JCC’s order of 1999 was non-final, in that the court expressly retained jurisdiction over the matter. The circuit court heard arguments on the motion and subsequently, on April 28, 2006, issued an order dismissing appellant’s petition for lack of jurisdiction. Appellant appeals from the order of dismissal.

The provision of the Worker’s Compensation Law which governs enforcement of a JCC’s-final compensation order, section 440.24(1), provides in part the following:

In case of default by the employer or carrier in the payment of compensation due under any compensation order of a judge of compensation claims or other failure by the employer or carrier to comply with such order within 10 days after the order becomes final, any circuit court of this state within the jurisdiction of which the employer or carrier resides or transacts business shall ... have jurisdiction to issue a rule nisi directing such employer or carrier to show cause why a writ of execution ... shall not be issued.

§ 440.24(1), Fla. Stat. (2006) (emphasis added). Appellant argues that the compensation order at issue, rendered June 22, 1999, was never appealed by the appel-lee, and thus it became final within thirty days from its entry. Consequently, appellant argues the compensation order is properly subject to enforcement through a petition for rule nisi. Appellee contends, and the circuit court below agreed, that the JCC’s 1999 order was non-final, and thus not enforceable through a rule nisi petition, because it contained a provision which reserved jurisdiction until “construction, modification and provision of all items specified herein have been completed.”

This court has consistently held that a Judge of Compensation Claims does not have the kind of authority exercised by the JCC in this case, namely the authority to enforce its orders. See Metro. Dade County v. Rolle, 661 So.2d 124, 127 (Fla. 1st DCA 1995) (“It is settled that a judge of compensation claims has no jurisdiction even to enforce the prior compensation order since the sole remedy for enforcement is by the procedure outlined in subsection 440.24(1), Florida Statutes ... ”) (citing Buena Vista Constr. Co. v. Capps, 656 So.2d 1378, 1380 (Fla. 1st DCA 1995) (internal quotations omitted)).

Further, when the provision reserving jurisdiction is set aside, there is nothing more in the JCC’s- compensation order which would render it non-final. Indeed, a compensation order is final where, as in this case, it settles all the claims ripe for adjudication. See Emro Mktg. v. Schwier, 670 So.2d 1141, 1142 (Fla. 1st DCA 1996) (“[Ojrders which adjudicate all matters ripe for hearing may always be immediately appealed”); Bradley v. Hurricane Restaurant, 652 So.2d 443, 444 (Fla. 1st DCA 1995) (“By definition, a worker’s compensation order that decides all issues ripe for adjudication is a final order and appealable”).

Because the 1999 compensation order was final, we reverse the circuit court’s dismissal of the petition, and remand for further proceedings.

REVERSED and REMANDED.

BARFIELD, PADOVANO and POLSTON, JJ., concur.


author: SHAHOOD, J.

text:
    L.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-1968.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.

      Jeffrey B. Levy of Law Office of Jeffrey B. Levy, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   SHAHOOD, J.

L.M., the mother, appeals the trial court order adjudicating her two minor children dependent as to her. She argues first that the trial court erred in adjudicating the children dependent based upon neglect and substantial risk of imminent neglect. We affirm, finding the trial court’s ruling was supported by competent substantial evidence. As her second issue,, the mother claims the trial court erred by conducting an adjudicatory hearing without her present and while she was still deemed incompetent. We.affirm on this issue'based on the children’s right to permanency and because the mother’s due process rights were adequately safeguarded by her own attorney and the attorney ad litem.

The mother contends that the trial court misapplied the law and its ruling was not supported by competent substantial evidence in the record. The Department of Children and Families (“DCF”) argues that the court’s ruling was supported by competent substantial evidence that the mother suffered from mental illness that adversely affected the children’s care, exposed the children to illegal drugs in the home, and kept her home in a deplorable condition.

Under section 39.01, Florida Statutes, the definition of a dependent child includes one who has been abandoned, abused, or neglected by his or her parents, custodians, or caregivers or is at substantial risk of imminent harm from abandonment, abuse or neglect. § 39.01(14)(a), (f), Fla. Stat. (2006). For the purpose of protective investigations, abuse and neglect of a child include the acts or omissions of the parent. § 39.01(2),(43), Fla. Stat. (2006); G.V. v. Dep’t of Children & Families, 795 So.2d 1043, 1047 (Fla. 3d DCA 2001). Abuse and neglect must be established by a preponderance of the evidence. § 39.507(l)(b), Fla. Stat. (2006)..

The following facts were established at the adjudicatory hearing. Dr. Sharon Brown, a medical doctor and psychiatrist, conducted a brief fifteen-minute session with the mother on March 1, 2005. The mother denied that she had a mental illness. The mother was uncooperative and unwilling to be evaluated. Dr. Brown found the mother delusional, hyperactive, hyperverbal, and preoccupied with the Bible. At the end of the session, Dr. Brown witnessed the mother slap one of the children across the face over some minor misbehavior. Dr. Brown reported the incident to an abuse hotline.

Joanne Arnett, a child protective investigator with the Broward Sheriffs Office, investigated the slapping incident. Arnett went to the mother’s home with a law enforcement officer. The mother told Ar-nett she did not know where the children were, but thought they were with her mother. Arnett found the home in a deplorable condition. The living room had dried blood on the floor, with clothes piled in one corner. The beds had no sheets, and the bed frames were disassembled and sticking up dangerously into the air. There were sheets covering the windows. The bathroom was full of dirty brown water. There was an unidentifiable black substance and a plunger in the bottom of the bathtub. The toilet had not been flushed and contained feces. The hallway closet had seven or eight live roaches in it. The kitchen had dirty dishes in the sink and on the counter. The cabinets were completely bare. The only food in the house was a bottle of juice, a half-eaten cookie, and half of a bag of frozen chicken. Arnett believed the home was not safe for the children.

Arnett described the mother’s mood as “sporadic.” She began the encounter with Arnett very hostile but calmed down and talked for awhile. Then she started yelling and screaming and became uncooperative. The mother admitted to smoking marijuana, and there was a thick marijuana cigar in the home. As a result, law enforcement took her into custody.

Joyce Bryan, a child advocate from ChildNet, began working on this case in August 2005. During that time, she met with the mother only twice. Both meetings occurred outside the courtroom, before court proceedings. The first time she met the mother, Bryan introduced herself as the new child advocate, handed the mother her card, and told the mother that Bryan would need to contact her. The mother started cursing at Bryan, and walked away. The second time they met, the mother just looked at Bryan, pointed, and mumbled something.

We hold there was competent substantial evidence to support the trial court’s finding that the children'were neglected or at substantial risk of imminent neglect based upon the mother’s mental state, the presence of illegal drugs in the home, and the conditions of the home. We note that in the absence of evidence of a nexus between the mother’s drug use and harm to the children, the trial court correctly considered the marijuana only to the extent its presence in the home posed a danger to the children. See R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1132 (Fla. 4th DCA 2004) (reversing dependency ruling where no evidence showed father’s substance abuse problem affected his ability to parent and father did not expose children to controlled substances).

The mother also argues the trial court denied her due process by conducting the adjudicatory hearing without her present and while she was still incompetent. We disagree.

On March 4, 2005, DCF filed an affidavit and petition for placement of the children in shelter. An order placing the children in shelter and restricting the mother to supervised visitation was signed the same day. DCF later filed a Verified Petition for Dependency incorporating the allegations of the shelter petition. The mother did not appear at an arraignment hearing on March 28, 2005, but was represented by her attorney. The court reset arraignment for the mother and scheduled a mediation hearing. The mother did not appear at mediation or arraignment on April 21, 2005, but was again represented by her attorney. The court again reset arraignment.

On April 26, 2005, the mother appeared for arraignment. No plea was entered. The court granted the mother’s counsel’s request for a competency evaluation due to concerns the mother might not be competent to proceed.

On June 14, 2005, the court conducted another arraignment. The mother and her counsel were in attendance. No action was taken'because the mother’s competency evaluation had not been completed. The court reset the matter for a competency evaluation status hearing. On July 27, 2005, after a judicial review hearing, the court noted that the mother’s competency evaluation was still pending. At an August 17, 2005 status hearing, the court found that the mother had shown up for her scheduled competency evaluation on August 7, 2005, but did not remain for the evaluation. The court appointed an attorney ád litem to assist the mother and ordered the mother’s counsel to reschedule another competency evaluation.

The mother’s counsel eventually filed a completed competency evaluation performed by Dr. Brannon. Dr. Brannon evaluated the mother incompetent to stand trial. His report stated that the mother posed an imminent risk of danger to herself and others and recommended involuntary psychiatric hospitalization due to his finding that the mother was “suffering from the active symptoms of a major mental disorder.” The report found the mother “unable to demonstrate an adequate factual knowledge or rational appreciation of the legal knowledge necessary for her to competently proceed to a final hearing/trial in her dependency case.”

The court held an adjudicatory hearing on November 7, 2005. The mother was present and represented by counsel. After reviewing Dr. Brannon’s report and the behavior of the mother in court, the court involuntarily committed the mother and appointed an attorney ad litem to assist her. On November 16, 2005, mediation was reset to allow the attorney ad litem to consult with the mother. The court also found that there were extraordinary reasons to continue the adjudicatory hearing due to the mother’s incompetence.

A permanency review hearing was held on January 23, 2006, at which the mother’s attorney was present. The mother was not present and no findings were made as to her because her trial was pending. The court’s subsequent order noted due process concerns due to the fact the mother had been deemed incompetent and the children had not yet been adjudicated dependent.

The mother was not present for pretrial on April 5, 2006. The court maintained the trial date of May 1, 2006, finding that “the Juvenile Rules and Chapter 39 are silent on incompetency and as such, the court will go forward with trial as it serves the children’s best interests and their need for permanency.” The adjudicatory trial was held on May 1, 2006. The mother did not appear but was represented by counsel. She also had the benefit of the attorney ad litem’s presence. The court denied the mother’s attorney and attorney ad-li-tem’s motions to continue the trial due to the mother’s incompetency, finding the mother’s rights adequately protected by the attorney ad litem and her defense counsel.

We find no merit in the mother’s contention that the trial court violated her due process rights by holding an adjudicatory hearing without her present and while she was still deemed incompetent. The foregoing chronology of events demonstrates that she had the benefit of her defense counsel at every stage of the proceedings and the attorney ad litem for many of them. We find the mother’s rights were adequately protected.

We also must consider the best interests of the children. The record demonstrates that the arraignment, mediation, and adjudicatory hearing were each reset several times. As a result, the dependency trial did not occur until more than one year after the dependency petition was filed and the children were placed in foster care. To delay the proceedings indefinitely due to the mother’s competency issues would deprive the children of their right to permanency and run contrary to the goal that no child remain in foster care longer than one year. See § 39.001(1)(h),(i), Fla. Stat. (2006); B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1256 (Fla.2004); C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779 (Fla. 4th DCA 2003) (stating that “courts are compelled to expedite proceedings to prevent children from languishing in the foster care system .... Achieving permanent stability in the child’s life is the paramount concern of the judicial process”). We hold that to the extent the mother’s due process rights were affected by the trial court’s decision to proceed, those rights must yield to the needs of the children.

Affirmed.

GROSS and HAZOURI, JJ., concur.

      . T.M., born November 19, 2001, and H.M., born August 23, 2000. The children have different biological fathers.


text:
    Raymond LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2936.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      Raymond López, in proper person.
    Charles J. Crist, Jr., Attorney 'General, and Fredericka Sands, Miami, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   PER CURIAM.

Raymond Lopez appeals from a summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, finding that the motion was timely filed and the trial court failed to attach the necessary documents to its order in support of-'its determination that the motion for post conviction relief was successive.

The trial court based its summary denial on the grounds that the motion was untimely and successive. Lopez’s judgment and sentence became final on March 14, 2003. The motion was filed on December 27, 2004. Thus, the motion was not untimely filed.

As to the successive nature of the motion, the trial court failed to attach the previous motion for post conviction relief or order to its order in which it summarily denied the motion. Pursuant to Florida Rule of Criminal Procedure 3.850(d), a summary denial is permitted only if the motion filed and records in the case conclusively show the movant is entitled to no relief. We thus remand this cause to the trial court so that it can attach the necessary documents to its summary denial order to establish that the motion is successive, or to take other appropriate action on the merits. See Callwood v. State, 931 So.2d 281 (Fla. 5th DCA 2006).

Reversed and remanded.


text:
    James HILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3248.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.
   PER CURIAM.

James Hill appeals the summary denial of his motion for postconviction relief and amended motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Hill previously filed a rule 3.850 motion that the postconviction court summarily denied. This court affirmed the postconviction court’s order in Hill v. State, 888 So.2d 635 (Fla. 2d DCA 2004) (table decision). In the current motions, Hill failed to allege any justification for his failure to raise his new claims in his first rule 3.850 motion. Therefore, we affirm the posteonviction court’s order because Hill’s motions are successive. See Fla. R.Crim. P. 3.850(f); Balko v. State, 934 So.2d 662, 663 (Fla. 2d DCA 2006).

Affirmed.

ALTENBERND, SILBERMAN, and WALLACE, JJ„ Concur.


author: PER CURIAM. VAN NORTWICK, J.,

text:
    Amr SALAM, Petitioner, v. BOARD OF PROFESSIONAL ENGINEERS, Respondent.
    No. 1D06-3956.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.
    Rehearing Denied' Jan. 12, 2007.

    Edwin A. Bayo of Gray, Robinson, P.A., Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, and Lee Ann Gustafson, Senior Assistant Attorney General, Tallahassee, for- Respondent.
   PER CURIAM.

Petitioner, an applicant for licensure as a professional engineer, sought a writ of mandamus complaining that the Board of Professional Engineers failed to grant or deny his petition for formal hearing within 15 days of receipt as required by section 120.569(2)(a), Florida Statutes (2005). By unpublished order, we granted the petition and directed the Board to rule on the petition for formal hearing within 15 days. See Teachers Educators Ass’n, Inc. v. Duval County Sck. Dist., 763 So.2d 1265 (Fla. 1st DCA 2000).

Because petitioner has obtained the relief sought in his petition for writ of mandamus,’ we grant petitioner’s request for attorney’s fees. The agency’s action in failing to rule on his petition for formal hearing within 15 days as required by section 120.569(2)(a) constituted a gross abuse justifying an award of attorney’s fees to petitioner pursuant to section 120.595(5). In the administrative process, it is fundamental that an aggrieved person receive a formal administrative hearing upon request. Here, that request was timely made and the agency randomly put it on hold; by so doing, the agency exercised its discretion arbitrarily and capriciously in violation of fundamental requirements. The agency’s unexplained delay necessarily involved a discretionary act, which under the circumstances of this case was gross. The agency’s inexplicable delay put petitioner’s request for licensure on hold for four months while the agency postponed ruling on his request for a formal hearing. A citizen’s rights under the Florida Statutes must be taken seriously by the State’s agencies, and handled expeditiously.

BROWNING, C.J., and BARFIELD, J., concur.

VAN NORTWICK, J., concurs in part and dissents in part with written opinion.

VAN NORTWICK, J.,

concurring in part and dissenting in part.

I agree with the majority that the petition for writ of mandamus should have been granted. I dissent with respect to the award of attorney’s fees to petitioner. Section 120.595(5), Florida Statutes (2005), provides that when there is an appeal, the court may award reasonable attorney’s fees and costs “to the prevailing party if the court finds ... that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion.” Here, the Board of Professional Engineers did not exercise its discretion when it failed to act on the petition for formal hearing within 15 days of receipt. Instead, the Board failed to perform the ministerial duty of ruling on the petition for formal hearing. The Board will exercise its discretion when it determines whether to grant or deny the petition for formal hearing. The failure to ministerially rule on the petition cannot be “a gross abuse of discretion” under section 120.595(5). Compare, Residential Plaza At Blue Lagoon, Inc. v. Agency for Health Care Admin., 891 So.2d 604 (Fla. 1st DCA 2005) (granting attorney fees where the court found that the agency grossly abused its discretion by denying renewal of a license, refusing to grant a formal hearing on the denial and failing to respond to substantive arguments on appeal).

      . “Mandamus does not lie to compel the exercise of discretion in a particular fashion or to establish a right.” Marshall v. State, 838 So.2d 702, 703 (Fla. 5th DCA 2003).


text:
    Ezekiel REGISTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4521.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.
    Nancy A. Daniels, Public Defender, Dan B. Hendrickson and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Ezekiel Register, appeals an order of involuntary inpatient placement under section 394.467, Florida Statutes (2006). The appellant argues, among other things, that counsel’s waiver of the appellant’s presence at the commitment hearing was insufficient to allow the hearing to proceed. The state asserts that this issue was not preserved for review.

A patient has a .fundamental right to be present at a commitment proceeding. Joehnk v. State, 689 So.2d 1179, 1180 (Fla. 1st DCA 1997). While a patient may waive his or her right to be personally present and be constructively present through counsel, a court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Id. Furthermore, a denial of the due process right to be present at an involuntary commitment hearing is fundamental error which may be raised on appeal even if not preserved below. See Ibur v. State, 765 So.2d 275, 276 (Fla. 1st DCA 2000) (holding that a denial of the due process right to be heard prior to the deprivation of one’s liberty is fundamental error).

Because the court below did not certify through proper inquiry that the waiver was knowing, intelligent, and voluntary, we reverse and remand for a new commitment hearing.

REVERSED and REMANDED.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.