author: METZGER, ELIZABETH A., Associate Judge.

text:
    BOARD OF TRUSTEES OF the TOWN OF LAKE PARK FIREFIGHTERS’ PENSION PLAN, Appellant, v. TOWN OF LAKE PARK, Florida, Appellee.
    No. 4D06-4179.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.

      Matthew J. Mierzwa, Jr. of Mierzwa & Associates, P.A., Lake Worth, for appellant.
    James W. Linn and Glenn E. Thomas of Lewis, Longman & Walker, P.A., Tallahassee, for appellee.
    Richard A. Sicking, Coral Gables, for Amicus Curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO.
   METZGER, ELIZABETH A., Associate Judge.

The Board of Trustees of the Town of Lake Park Firefighters’ Pension Plan (“Board”) appeals a final summary judgment entered in favor of the Town of Lake Park, Florida (“Town”). In'the summary judgment order, the trial court ruled that the Town had no obligation to make any further payment to the Town of Lake Park Firefighters’ Pension Plan (“Plan”). The trial court also granted final summary judgment in favor of the Town on all claims raised within the Board’s counterclaims. We reverse.

The Town filed a complaint seeking a declaration of the Town’s rights and responsibilities under Florida law upon the termination of the Plan. The Plan was a defined benefit pension plan created for the Town’s firefighters. The Plan was established by municipal ordinance (“Ordinance”) and was required to comply with Chapter 175, Florida Statutes. All firefighters employed by the Town became members of the Plan upon their employment with the Town. The Town’s firefighters were required, per Ordinance, to make contributions to the Plan in the amount of five percent of their earnings.

On June 5, 2002, the Town and Palm Beach County entered into an Interlocal Agreement for Fire Protection and Emergency Medical Services (“Agreement”). Pursuant to the Agreement, Palm Beach County agreed to provide the Town with fire and emergency medical services. Furthermore, the Agreement required Palm Beach County to hire all the Town’s firefighters. As a result of the Agreement, effective 7:30 am on July 29, 2002, the Town terminated its firefighting staff and Palm Beach County, at the same time, hired the same firefighting staff as Palm Beach County employees. When the firefighters were hired by Palm Beach County, they became mandatory members of the Florida Retirement System.

On or about July 29, 2002, due to the termination of all Plan members, the Plan was officially terminated and all contributions to the Plan ceased. Upon Plan termination, the Board had the sole authority to determine how Plan assets were to be distributed. As a result, the Board decided that accrued, benefits should be paid out to Plan members in the form of lump sum distributions. The Board directed the Plan’s actuary to determine the value of all accrued benefits as of June 30,, 2002. The actuary calculated the value of the accrued benefits to be $2,072,783. The Plan’s asset value was less than the accrued benefits, as of the date of termination. It was the Board’s position that the Town was obligated to pay the difference between the asset value of the Plan and the accrued benefits as of the date of termination. The Town disagreed and proceeded to file a complaint for declaratory relief. The Board filed a counterclaim, alleging the Town violated sections 175.361, 112.0515 and 175.091(d), Florida Statutes. The Board further alleged within its counterclaim that the Town breached the Agreement.

In January 2003, pursuant to the provisions of the Plan and Florida law, the Board approved the following distribution of the Plan assets: (1) one Plan member, who was eligible for retirement, received the full value of his accrued benefit; (2) three Plan members, who had 10 or more years of service, but who were not yet eligible for retirement, received a portion of their accrued benefit; and (3) the remaining nine Plan members, each with less than 10 years of service, received no distribution from the Plan.

Section 175.091, Florida Statutes, governs the creation and maintenance of firefighter pension funds. The main funding sources for firefighter pension funds are: (1) a mandatory five percent contribution or payment by each firefighter employed by the involved municipality; (2) an excise tax on fire insurance premium payments to fire insurance companies, fire insurance associations, or other property insurers; and (3) a mandatory payment by the municipality of “a sum equal to the normal cost of and the amount required to fund any actuarial deficiency shown by an actuarial valuation as provided in part VII of chapter 112.” See § 175.091(1)(a)-(g), Fla. Stat. (2006). Prior to termination of the Plan, mandatory contributions were made to the Plan by the Town, on a yearly basis, in accordance with contribution amounts determined by the Plan’s actuary to fund actuarial deficiencies.

Section 175.361, Florida Statutes, specifically pertains to the termination of pension plans. Such statute reads, in part, as follows:

Upon termination of the plan by the municipality or special fire control district for any reason or because of a transfer, merger, or consolidation of governmental units, services, or functions as provided in chapter 121, or upon written notice by the municipality or special fire control district to the board of trustees that contributions under the plan are being permanently discontinued, the rights of all employees to benefits accrued to the date of such termination and the.amounts credited to the employées’ accounts are nonforfeitable.

§ 175.361, Fla. Stat. (2006) (emphasis added).

In 1999, the Legislature amended various provisions contained within Chapter 175. Such amendments included the addition of the following language: “the rights of all employees to benefits accrued to the date of such termination and the amounts credited to the employees’ accounts are nonforfeitable.” § 175.361, Fla. Stat. (2006). Section 175.361(3) also sets forth a methodology to be followed for apportionment and distribution of the Plan’s “asset value” as of the date of Plan termination.

In addition to the provisions of Chapter 175, Chapter 112 also applies to the Plan. Such Chapter contains the following pertinent provisions:

It is hereby declared to be the policy of this state that in any consolidation or merger of governments or the transfer of functions between units of governments either at the state or local level or between state and local units, the rights of all public employees in any retirement or pension fund shall be fully protected. No consolidation or merger of governments or governmental services, either state or local, accomplished in this state shall diminish or impair the rights of any public employee in any retirement or pension fund or plan which existed at the date of such consolidation or merger and in which the employee was participating, nor shall such consolidation or merger result in any impairment or reduction in benefits or other pension rights accruing to such employee.

§ 112.0515, Fla. Stat. (2006).

The Legislature has specifically declared that consolidations, mergers or transfers of government or governmental functions may not diminish or impair employees’ rights or benefits in a retirement or pension plan or fund in which the employee was participating in at the time of the consolidation, merger or transfer. Id. Furthermore, pension statutes are to be liberally construed in favor of the intended recipients. Greene v. Gray, 87 So.2d 504, 507 (Fla.1956).

The lower court found that the Board appropriately followed the method of distribution of the Plan’s assets as set forth within section 175.361, Florida Statutes, upon termination of the Plan. However, the trial court stated that the statutorily mandated distribution methodology required by section 175.361 provided for less than full payment to certain Plan members, if Plan assets were inadequate to pay every firefighter member in full. As such, the lower tribunal concluded that “[i]f all assets are exhausted by payments to higher-ranking categories,' then members of any lower category receive nothing. The Statute contains no provision for the municipality to make up for a deficit so that all members receive all their benefits in full.” However, the trial court did not apply the “nonforfeitable” clause contained within section 175.361. In construing statutes, the court must, to the extent possible, give effect to all parts of a statute. Kepner v. State, 577 So.2d 576, 578 (Fla.1991). Additionally, the trial court did not address other pertinent provisions of Chapters .175 and 112. The trial court’s ruling resulted in nine Plan members receiving absolutely no distribution from the Plan upon termination, despite such members making mandatory contributions to the Plan in the amount of five percent of their earnings. Such ruling further resulted in other Plan members receiving payments less than their accrued benefits at the time of termination.

We conclude that the trial court erred when it found, as a matter of law, that the Town had no obligation to fund the Plan’s actuarial shortfall present at the time the Town’s actions resulted in a termination of the Plan. It is undisputed that as ,a result of the Town’s decision to enter into the Agreement, the Plan was terminated. It is further undisputed that prior to termination of the Plan, the Town funded,. on a yearly basis, actuarial deficiencies of the Plan determined by the Plan’s actuary, as required by the provisions of the Plan and section 175.091(1)(d), Florida Statutes. Certainly, if the Town had not entered into the Agreement, the Town would have had a continuing obligation to fund actuarial deficiencies within the Plan. The Town espouses that it had the ability to elect to enter into the Agreement, which resulted in termination of the Plan,, without addressing the Plan’s actuarial deficiency present at the time of .termination. Such position is not supported by Florida law.

Once the Board, per its authority, elected the asset distribution method to be employed, the Plan’s actuary calculated that there indeed was an actuarial deficiency within the Plan, as the Plan’s assets were insufficient to meet the accrued benefits to be distributed to Plan members. Section 175.091(l)(d), Florida Statutes, required the Town to make a mandatory payment of “a sum equal to the normal cost of and the amount required to fund any actuarial deficiency shown by an actuarial valuation as provided in part VII of chapter 112.” The Town’s argument that it had no obligation to fund the actuarial deficiency inasmuch as the Board elected to distribute the Plan funds in a way that was more costly than other available alternatives, does not have a legal basis. The Board had the sole authority to choose the method of distribution of the Plan assets at termination, which it did. Once the distribution method was chosen by the Board, the Board appropriately followed the statutory procedure for distributing the Plan’s assets available for distribution at the time of termination as contained within section 175.361, Florida Statutes. This same statute also clearly dictated that the benefits accrued to the date of termination were “nonforfeitable.” Additionally, inasmuch as the Town’s decision to enter into the Agreement resulted in the termination of the Plan, there could be no impairment or reduction in benefits or other pension rights accruing to any firefighter Plan member. See § 112.0515, Fla. Stat. (2006).

Based upon the foregoing, we reverse the trial court’s entry of final summary judgment in favor of the Town and against the Board and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

KLEIN and HAZOURI, JJ., concur.

      . Before making a final decision, the Board sought an opinion from the Department of Management Services Division of Retirement (the "Division”) regarding the Town's obligation to fund the Plan to pay vested benefits to Town firefighters upon termination of the Plan, inasmuch as the Plan assets were not sufficient to pay the accrued benefits. The Division concluded that the Town had a duty to ensure there were sufficient funds for payment of accrued benefits and liabilities. The Division further noted that the Town exercised its authority to terminate the Plan and had the ability, through its taking and budgeting authority, to secure revenues to pay sums owed to the firefighters for nonforfeitable benefits. An agency’s interpretation of a statute it is charged with enforcing is entitled to great deference. Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844 (Fla. 1st DCA 2002).


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Lillian KAMINER, Raphael Kaminer and Nancy Crown, as Personal Representative of the Estate of Matthew Kaminer, Appellants, v. ECKERD CORPORATION OF FLORIDA, INC. f/k/a Eckerds Corporation a/k/a Eckerds, a Florida corporation, and Purdue Pharma L.P., a Connecticut Limited Partnership f/k/a Purdue Frederick Company, Appellees.
    No. 4D06-3497.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.

      Kelley B. Stewart of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Li-berman & McKee, P.A., Fort Lauderdale, for appellants.
    Brett C. Powell and Mark Hicks of Hicks & Kneale, P.A., Miami, and Kenneth P. Carman of Carman, Beauchamp & Sang, P.A., Boca Raton, for appellee Eck-erd Corporation of Florida, Inc.
   KLEIN, J.

Matthew Kaminer died as a result of ingesting Oxycontin which he received from his fraternity brother at their fraternity house in Gainesville. The fraternity brother got the drug from his roommate, a pharmacy technician who had stolen it from his employer, Eckerd. The trial court granted Eckerd’s motion for summary judgment in this wrongful death action and we affirm.

The theft occurred in April of 2000, when the pharmacy technician took 126 eighty milligram Oxycontin pills which had been bottled, but not yet been picked up by a customer. The next day he gave some of the pills to his roommate, and that evening the roommate gave one of the pills to Kaminer. There were no witnesses who observed Kaminer ingest the Oxycontin; however, the autopsy report indicated that Oxycontin was the cause of death, and the only inference which could be drawn from the evidence is that he ingested it voluntarily.

Kaminer’s estate brought this wrongful death action against numerous defendants; however, it is only the claim against Eck-erd, based on Eekerd’s failure to follow federal regulations or its own procedures for safeguarding controlled substances, which is involved in this appeal. On motion for summary judgment Eckerd did not argue that it was not negligent, but rather relied on Kaminer’s criminal conduct in ingesting the drug, which Eckerd argued barred recovery.

Plaintiffs emphasize that there was no evidence showing that Kaminer knew the nature of the drug he ingested; however, knowledge of the illicit nature of a controlled substance can be presumed from actual possession of the substance. Scott v. State, 808 So.2d 166 (Fla.2002).

One of the obvious questions in this case is, if we were to hold Eckerd liable, whether Eckerd could be liable to the technician who stole the drugs if he had overdosed on them. To her credit, counsel for plaintiffs at oral argument conceded (as she. should have) that this would be ‘a much more difficult claim, but it does illustrate the possible ramifications of holding Eckerd liable.

Plaintiffs rely on eases such as Sipes v. Albertson’s, Inc., 728 So.2d 1243 (Fla. 5th DCA 1999), in which a minor was sold alcohol in violation of a statute, and became intoxicated and involved in an altercation in which he was fatally shot. The court reversed a summary judgment for the alcohol vendor; however, liability was based on a specific statute, section 768.125, which makes a seller of alcohol liable where there is a willful sale of alcohol to a minor. That case is distinguishable because in this case there is no analogous statute on which the theory of recovery is grounded. See Davis v. Shiappacossee, 155 So.2d 365, 367 (Fla.1963) (in the absence of a statute a seller of liquor is not responsible for injury to the person who drinks it).

They also cite cases holding the owners of stolen cars liable, where the keys have been left in the car and the thief injures a third person. Vining v. Avis Rent-A-Car Sys., 354 So.2d 54 (Fla.1977), and Schwartz v. Am. Home Assurance Co., 360 So.2d 383 (Fla.1978). Vining and Schwartz, however, did not allow a wrongdoer to recover for injuring himself.

In Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995), plaintiff had obtained amphetamines, a controlled substance, through the negligence of a pharmacy and was attempting to hold the pharmacy liable for his injuries resulting from taking the amphetamines. The Michigan Supreme Court, in holding that the plaintiff could not recover, applied the common law rule that a party cannot maintain an action based on the party’s own illegal conduct. The court explained:

The rationale that Michigan courts have used to support the wrongful-conduct rule are rooted in the public policy that' courts should npt lend- their aid to a plaintiff who founded his cause of action on his own illegal conduct. Manning [v. Noa] [345 Mich. 130] at 133, 76 N.W.2d 75 [1956]. Glazier [v. Lee] [171 Mich. App. 216] at 220, 429 N.W.2d 857 [1988]. If courts chose to regularly give their aid under such circumstances, several unacceptable consequences would result. First, by making relief potentially available for wrongdoers, courts in effect would condone and encourage illegal conduct. [Miller v.] Radikopf [394 Mich. 83] at 89, 228 N.W.2d 386 [1975], Second, some wrongdoers would be able to receive a profit or compensation as a result of their illegal acts. Third, and related to the two previously mentioned results, the public would view the legal system as a mockery of justice. Fourth, and finally, wrongdoers would be able to shift much of the responsibility for their illegal acts to other parties, [footnotes omitted.]

Orzel at 213.

Florida follows this rule. In Bryant v. Beary, 766 So.2d 1157 (Fla. 5th DCA 2000), a sixteen year old who did not have a driver’s license or permission to drive the car became involved in a high speed chase attempting to flee police officers. He was killed in an accident after running a red light during the chase, and his estate brought a wrongful death action against the sheriff because the officer had violated internal procedures by engaging in the high speed chase. In holding that he could not recover, Judge Griffin, writing for the court, stated:

Common sense and all rational notions of public policy dictate that a violator fleeing law enforcement who injures himself as a result of his own criminal misconduct should not be able to bring an action for negligence against the law enforcement officer trying to detain him, or against his employer.

Id. at 1160. The third district applied Bryant in Fisher v. Miami-Dade County, 883 So.2d 335 (Fla. 3d DCA 2004), and held that a passenger in the fleeing vehicle in a high speed chase cannot recover against the police either.

We apply that common law rule and affirm the summary judgment.

HAZOURI, J., and METZGER, ELIZABETH A., Associate Judge, concur.

      . Lawyers who are candid with the court, and understand when concessions are necessary in order to maintain any semblance of credibility, are much more effective advocates than those who are unwilling to give an inch. When counsel takes a position that is patently absurd, it can provoke further questions and take an oral argument off on a tangent which can only benefit the opponent.


author: WARNER, J.

text:
    James WATT, Appellant, v. Lisa WATT, Appellee.
    Nos. 4D06-720, 4D06-2352.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 9, 2007.

      Charles Wender, Boca Raton, for appellant.
    David Leacock and Howard Rudolph of Rudolph & Leacock; LLP, West Palm Beach, for appellee.
   WARNER, J.

The father appeals an order modifying the shared parental responsibility obligations in the parties’ marital settlement agreement incorporated in the final judgment of dissolution of marriage. Where the parties had shared parental responsibility for the children’s education, the court modified that provision and gave the mother the ultimate responsibility to make decisions regarding the children’s education. We affirm the trial court’s order.

The parties agreed to shared parental responsibility for their children, including decisions regarding education. As part of child support, the father agreed to pay for private schooling for the children at a “mutually agreeable private school.” Both of the children attended middle school at Pine Crest School in Boca Raton. When their son sought to attend Pine Crest’s high school, the father objected and suggested other schools. Eventually, the parties came to an impasse on the issue. The mother first sought enforcement of the support provision, but the trial court denied enforcement because of the shared parental responsibility and “mutual agreement” provisions of the settlement agreement. The mother then moved to modify the agreement, claiming that their inability to agree on a private school constituted a substantial change in circumstances not contemplated by the parties at the time of the dissolution. Further, she claimed that it was in the best interests of the child to continue his schooling through the Pine Crest School.

After protracted proceedings and a full trial, the court found that the impasse constituted a substantial change in eireum-stances which was unanticipated at the time of the agreement, since the agreement provided no mechanism to resolve an impasse on such a matter vital to the child. It further found that designating the mother as the final decision-maker was in the best interest of the child. The trial court had substantial, competent evidence to support these findings.

The father appeals, claiming that the parties’ impasse on the school decision could not constitute a substantial change of circumstances, because an agreement requiring mutual consent should not be modified solely on the basis of a lack of mutual consent. He also maintains that he has been denied his fundamental constitutional right to parent his child. On both issues, we disagree.

Although the parties entered into a marital settlement agreement regarding the custody and care of their children, the test for determining whether to modify a final judgment based upon an agreement regarding the children is the same as that for one entered after an adversarial hearing. In Wade v. Hirschman, 903 So.2d 928, 934 (Fla.2005), a case involving the modification of rotating custody, our supreme court set forth that test:

The substantial change test articulated herein applies to the modification of a divorce decree providing for the custody and care of a child. A decree for purposes of the substantial change test includes both a decree that has incorporated a stipulated agreement concerning child custody and a decree awarding custody after an adversarial hearing. In other words, a party seeking to modify a final decree adopting an agreement to rotate custody must satisfy the identical substantial change test that applies in cases involving the modification of eusto-dy orders after an adversarial hearing on the issue of custody. In either circumstance, satisfaction of the substantial change test is necessary in order to overcome the res judicata effect of the final judgment.

(bold emphasis supplied) (citation omitted). Because the court included the care of children in its formulation, it eliminated the “heavier burden” test articulated in Pimm v. Pimm, 601 So.2d 534 (Fla.1992), which applies to modifications of alimony provisions. Generally, the court has not applied the “heavier burden” test to cases of marital settlement agreements involving issues regarding children. See Wade, 903 So.2d at 933-35; Tietig v. Boggs, 602 So.2d 1250 (Fla.1992) (child support).

The trial court properly resolved the impasse between the parties. “Shared parental responsibility” refers to a court-ordered relationship in which both parents retain full parental rights and “confer with each other so that major decisions affecting the welfare of the child will be determined jointly.” § 61.046(15), Fla. Stat. In ordering shared parental responsibility, the court may grant to one party the ultimate responsibility over specific aspects of the child’s welfare. § 61.13(2)(b)2.a., Fla. Stat. If the parties reach an impasse, then the dispute is presented to the court for resolution and the test to be applied is the best interests of the child. See Sotnick v. Sotnick, 650 So.2d 157, 160 (Fla. 3d DCA 1995); Hancock v. Hancock, 915 So.2d 1277 (Fla. 4th DCA 2005); see also Vazquez v. Vazquez, 443 So.2d 313 (Fla. 4th DCA 1983) (trial court properly exercised its discretion under the shared parental responsibility statute by ordering that children would attend school chosen by father).

In Hancock, the former husband and wife could not agree on whether home schooling was in the best interest of their son. Noting that it was clear that the parties “do not agree regarding the child’s education,” this court remanded the case to the trial court to designate which parent should be given the responsibility for decisions concerning the child’s education as part of the order of shared parental responsibility. Hancock, 915 So.2d at 1278.

Shared parental. responsibility assumes that the parties can come to agreement on the welfare of their children. Where the parties cannot and will not come to agreement, the trial court can determine that such an impasse constitutes a substantial change in circumstance, requiring modification of the final judgment in the best interest of the children. Because competent substantial evidence supports the trial court’s determinations in this case, we affirm the final judgment of modification.

The father also maintains that the court has interfered with his fundamental right to parent his child. The only interference involved is the court resolving a private dispute between divorced parents who are at loggerheads. Because this case involves the competing rights of parents to their child in a divorce situation, we deem his contention frivolous. He cites no case supporting such a right in a dispute between divorced parents.

Finally,' he challenges the order awarding attorney’s fees to the wife. The trial court awarded $84,788 for temporary fees in 2005, of which approximately $15,000 were provided for future services. In its order for fees after the final hearing on the modification, the court awarded an additional $100,839 for fees, which included a $30,000 award for temporary appellate fees. Although the trial court made a finding that the husband’s litigiousness had caused the extreme award of temporary fees, the court did not make the same finding as to the final award. The court specifically denied making an award other than under section 61.16.

Having reviewed the entire record, including the attorney’s fees hearing, it appears to us that from the hearing on the temporary fees forward, the wife’s attorney’s fees were excessive, both in preparation for trial and in discovery. Even the wife’s attorney admitted that he usually takes twice as long to prepare for trial as the actual trial takes. Thus, in this ease trial preparation would have taken around sixteen hours for a one day trial. Instead, he charged over sixty hours. In addition, many of the issues between the time of the temporary fees hearing and the trial revolved around attempts to obtain financial information after the husband had already agreed that he had the financial ability to pay an award, including the taking of a deposition of the husband’s new wife that appears to have served no purpose. The wife’s attorney also billed for the services of three other attorneys in his firm and then hired an outside appellate specialist to advise him, even though he also had appellate support in his own firm.

We conclude that the number of hours expended was excessive. Between the hours billed for the unnecessary deposition and the otherwise clearly excessive pretrial preparation, we find that at least sixty hours of fees at the trial level were unnecessary. In order to prevent further litigation over fees, we direct that the trial court reduce by sixty the number of hours to the wife’s attorney for trial services. We also deny any further award of appellate fees to the wife, finding that the award of temporary fees is generous.

We also affirm the remaining issues with respect attorney’s fees. We conclude on a review of the record that the husband stipulated that he had a greater ability to pay attorney’s fees than the wife. The husband stipulated to an “ability to pay” fees, and did not contest the wife s understanding that the stipulation with respect to ability to pay encompassed the husband’s greater ability to pay. Additionally, the husband’s interpretation of the stipulation makes no sense in light of the purpose of the stipulation, which was to allow the husband to avoid producing financial documents. Further, the husband objected to the presentation of evidence of the wife’s financial ability. He cannot be heard to complain that he was denied due process because he could not prove that the wife had an equal ability to pay her own attorney’s fees when he prevented the court from hearing evidence which would support that contention.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Thomas Perry WELLS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2306.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 6, 2007.
    Thomas Perry Wells, Jr., Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Thomas Perry Wells, Jr. (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Defendant was sentenced concurrently to ten years as a habitual felony offender (HFO) for count I, a third degree felony, and to thirty years as a HFO for count II, a first degree felony punishable by life. However, his original written sentencing documents filed February 7, 1997, had the two sentences reversed. On direct appeal, this court remanded to correct the written sentences, Wells v. State, 700 So.2d 803 (Fla. 4th DCA 1997), and they were corrected nunc pro tunc on November 21, 1997. Thereafter, however, his Uniform Commitment to Custody was reissued on January 4, 2002.

Defendant’s instant rule 3.850 motion for postconviction relief claimed his current written sentence failed to conform to the sentencing court’s oral pronouncement, despite the correction, because the classification department at his institution informed him it had received documentation from the trial court on January 7, 2002, increasing his sentence for count I from ten to thirty years, and decreasing his sentence for count II from thirty to ten years. He assumed that this documentation was sent with the amended commitment papers on January 4, 2002, and that the commitment attached the original sentencing documents, rather than the corrected ones. He asked the trial court to correct the written sentence to conform to the oral pronouncement and to send the department copies of the amended sentences entered on November 21, 1997. The trial court denied the motion and Defendant appealed.

Defendant’s written sentence already was corrected, on November 21, 1997. Because he now seeks clarification of his sentence due to correspondence which he received from the department, he must first attempt to rectify any discrepancy through the administrative remedies available to him within the department. After exhausting those remedies, he may, if necessary, seek mandamus relief from the circuit court.

We affirm the order without prejudice to his doing so.

SHAHOOD, C.J., KLEIN and GROSS, JJ., concur.

      . The trial court corrected a clerical mistake in Defendant’s judgment forms, correcting his name from Thomas Perry Wells to Thomas Perry Wells, Jr.


text:
    Rodolfo TROCHE, Appellant, v. GEICO and Rawlings Company, LLC, Appellees.
    No. 1D06-4193.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2007.

      Laurie Thrower Miles of Smith, Fedde-ler, Smith <& Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Michael S. Waranch of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

Appellant (“Claimant”) appeals the denial of his workers’ compensation claim for carpal • tunnel syndrome on both wrists. Because we find that Claimant suffered a repetitive injury, we reverse the lower court’s dismissal of his claim.

The Judge of Compensation Claims (JCC) denied Claimant’s petition for benefits regarding his condition in both wrists due to the statute of limitations set forth in section 440.19(1), Florida Statutes (2001). Claimant originally filed a claim for his wrist injury on April 12, 2000; thus, the JCC found he was barred from refiling the claim more than two years later. See Id. Based on existing case law, we find this ruling was in error.

In a repetitive injury case, the date of injury is generally deemed to be the last date of exposure to the trauma. See, e.g., Barrett v. Douglas Fertilizer & Chem., 702 So.2d 609, 610 (Fla. 1st DCA 1997) (holding that a claim filed within two years of the claimant’s last injurious exposure to certain herbicides and pesticides at work was not barred by statute of limitations); Tokyo House, Inc. v. Hsin Chu, 597 So.2d 348, 351 (Fla. 1st DCA 1992) (holding that in the case of repetitive trauma, the statute of limitations begins on the last date of exposure to the trauma); City of Miami v. Tomberlin, 492 So.2d 433 (Fla. 1st DCA 1986).

Here, Claimant’s filing of a previous workers’ compensation claim for the same injury did not change the fact that he continued to suffer a new repetitive trauma each time he performed his job duties of entering data into a computer. Significantly, his duties did not change after he filed, and then abandoned, his initial claim. In fact, the notice of injury should have provided sufficient notice to Employer that his duties were causing injury. Had Employer taken steps to change Claimant’s job functions and eliminated his exposure to the repetitive injury, the statute of limitations would have run from the time Claimant filed his original notice of injury, as that would have been the last date he was exposed to this particular injury.

That was not the case, however, and Claimant was allowed to continue his job duties and continued to suffer its harmful actions. While the JCC is correct that no case law exists relating to situations where a claimant has filed a previous claim with his employer for the same condition, we hold that this has no effect on when the statute of limitations begins to run in a repetitive trauma injury. See Tomberlin, 492 So.2d at 435 (holding that appellant’s claim was not barred by statute of limitations because of the “ongoing repeated exposure” to the injury, even though claimant was aware of the cause of his injuries more than two years prior to filing the claim).

Accordingly, we reverse the JCC’s order denying Claimant benefits and remand for the JCC to consider the merits of Claimant’s petition regarding his wrist injuries.

REVERSED and REMANDED.

WEBSTER, LEWIS and THOMAS, JJ., concur.


author: KAHN, J.

text:
    Damien Orlando RODGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3807.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

We have considered the points raised by appellant Damien Rodgers and find no harmful error as to his conviction on Count 1 of the information, burglary of a dwelling with assault or battery. Accordingly we affirm the conviction and sentence as to that count. We reverse, however, the conviction as to Count 2.

During the trial, but after the State had rested its case, the court pointed out to the attorneys that Count 2 of the information filed by the State Attorney’s Office did not, in fact, charge a crime. Moreover, if the allegations contained in Count 2 had charged a crime, the State did not, as the trial court noted, present sufficient evidence to support a conviction under that count. Despite the exposition of these circumstances after the State rested, the defense never moved to dismiss the information nor for a judgment of acquittal. Instead, the court, undoubtedly with all best intentions, crafted its own solution to the problem.

First, the court, recognizing the fatal flaw in the charging document, announced that Count 2, ostensibly brought under section 782.051(3), Florida Statutes (2004), was worded so as not to charge an offense under that statute. The court expressed its view that the State must have intended to charge appellant under section 782.051(1). The State never ratified this conjecture, however, and in our own analysis of the information compared with subsections (1) and (3), we have difficulty understanding how the State could have originally intended the information, which virtually tracked the unique language of subsection (3) and its actus reus (“injure”), to charge a. violation of subsection (1). Nonetheless, the judge sua sponte amended the information to allege a violation of section 782.051(1), Florida Statutes. At no time was this amendment put in writing, nor was defendant placed on notice of the particulars with which the court had now charged him. Next, the trial court, having verbally amended the information to charge a crime distinct from, and more serious than, the charge as to which the State had already rested, proceeded, without any request or motion, to grant a judgment of acquittal as to the charge that he had developed. Then, as the final blow, the court “amended” the (then-nonexistent) charge to aggravated battery. The jury convicted appellant of aggravated battery, as charged by the judge.

As the trial court recognized, the information, as filed and prosecuted by the state attorney, could not support a conviction as to any crime, because it did not charge a crime. Accordingly, but for the court’s injection into this proceeding, appellant would have ultimately been entitled to discharge as to Count 2. See Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997); Mosely v. State, 682 So.2d 605 (Fla. 1st DCA 1996); Brown v. State, 550 So.2d 142, 142-43 (Fla. 1st DCA 1989). Instead, appellant was convicted of a crime, aggravated battery, with which he had never been formally charged. We would struggle to ever read aggravated battery into section 782.051(3) as a lesser included offense, because section 782.051(3) applies to the person who commits a felony while another person injures the victim by committing, inter alia, an aggravated battery. The Standard Jury Instructions in effect at the time of appellant’s trial did not expressly provide an instruction as to sections 782.051(1) and (3); a 2007 amendment added instructions on both subsections, but it does not list any lesser included offenses for either. See Fla. Std. Jury Instr. (Crim.), “Schedule of Lesser Included Offenses” (4th ed.); In re Std. Jury Instr. in Crim. Cases, 962 So.2d 310 (Fla.2007) (adding instructions for sections 782.051(1) and (3), and expressly providing that neither section includes lesser offenses); In re Std. Jury Instr. in Crim. Cases, 639 So.2d 602 (Fla.1994) (omitting listing lesser included offenses for third-degree attempted felony murder pursuant to section 782.04(1)(a)); In re Std. Jury Instr. in Crim. Cases, 636 So.2d 502 (Fla.1994) (omitting lesser included offenses for first-degree attempted felony murder pursuant to section 782.04(1)(a)). The trial judge erred.

We must determine whether the error here is fundamental. The appropriate inquiry must consider whether the error “ ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Scoggins v. State, 726 So.2d 762, 767 (Fla.1999) (quoting Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998), and Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)). Had the trial judge not transformed himself (albeit with no untoward intentions) into the role of the prosecutor’s auditor, the appellant would have been entitled to full judgment of acquittal as to Count 2.

The parties have not directed us to a case where a trial court sua sponte amends a defective information in such a way that the defendant is improperly charged with a different crime. By analogy, though, we have found fundamental error and reversed defendants’ convictions of nonexistent crimes and uncharged offenses. See, e.g., Richardson, 694 So.2d at 147 (holding that “[t]he revocation of a defendant’s probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law” and, as such, amounts to fundamental error); Mosely, 682 So.2d at 606-07 (finding fundamental error where, due to faulty jury instructions, defendant was convicted of attempted involuntary manslaughter, a nonexistent crime); Brown, 550 So.2d at 142-43 (finding fundamental error and reversing defendant’s conviction of attempted solicitation to introduce contraband into state correctional institution, where defendant was charged with solicitation and trial judge incorrectly instructed jury that attempted solicitation was lesser included offense).

We have also found fundamental error where defendants were convicted of erroneous lesser included offenses. See, e.g., Hankerson v. State, 831 So.2d 235, 236-37 (Fla. 1st DCA 2002) (finding fundamental error and reversing defendant’s conviction of erroneous lesser included offense of aggravated manslaughter). The supreme court has limited reversal in such cases, however, holding in Ray v. State, 403 So.2d 956, 961 (Fla.1981), that “it is not fundamental error to convict a defendant under an erroneous lesser included charge ... if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.”

The error in this case goes at least one step beyond Ray. The State charged appellant in Count 2 with a crime for which he never could have been convicted. The trial court “amended” that count to charge what he thought the State meant to charge in the first place, and then sua sponte charged appellant with an erroneous lesser included offense, a crime that substantively differs from the original charge.

The course of events set out above essentially allowed the State to convict a defendant of a crime where the defendant (1) had not been charged with an actual crime, (2) was entitled to discharge as to Count 2, as charged, and (3) received no notice of the purported amended charge. We conclude that these actions, when viewed as a whole, rise to the level of fundamental error, and accordingly, we REVERSE appellant’s conviction and sentence as to Count 2.

WEBSTER and ROBERTS, JJ., concur.


author: TAYLOR, J.

text:
    TAMPA SERVICE COMPANY, INC. d/b/a Pacesetter Personnel Service, Appellant, v. Robert HARTIGAN, individually and on behalf of all others similarly situated, Appellee.
    No. 4D05-4822.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.

      Kevin H. Graham of Shumaker, Loop & Kendrick, LLP, Tampa, for appellant.
    John G. Crabtree, The Florida Appellate Alliance, PLC, Key Biscayne, Gregg I. Shavitz and Perry Tanksley of The Shavitz Labor Pool Law Firm, PLC, Boca Raton, David J. George and Stuart A. Davidson of Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, Boca Raton, and Shannon McLin Carlyle and Christopher V. Carlyle of The Florida Appellate Alliance, PLC, The Villages, for appellee.
   TAYLOR, J.

Tampa Service Company appeals from the trial court’s non-final order granting class certification in this action filed under Florida’s Labor Pool Act. Appellant seeks reversal of the class certification order, contending that it does not conform to the procedural requirements of Florida Rule of Civil Procedure 1.220. It also argues that the plaintiff, whom the trial court appointed as the designated class representative, cannot adequately serve as the fiduciary for the class members. We disagree as to both points and affirm the order on these grounds.

The plaintiff, Robert Hartigan, filed a complaint, alleging that appellant, a labor pool company, violated a provision of Florida’s Labor Pool Act, section 448.24(1)(b), Florida Statutes (2003), by charging its workers in Broward County more than the prevailing rate for public transportation to and from its hiring halls and work sites. He sought certification under Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3) of a class consisting of “all natural persons within the State of Florida who performed day labor for Tampa Service, and were charged by Tampa Service for transportation to and/or from a worksite located in Broward County and a Tampa Service labor hall located in Broward County, in excess of the prevailing rate for public transportation within the geographic area.” His complaint requested both in-junctive relief and monetary damages.

After a hearing on the plaintiffs motion for class certification, the court issued an order granting the motion. In its order, the court stated that pursuant to Rule 1.220(a)(1)-(a)(4), the plaintiff established numerosity, commonality, typicality, and adequacy. The court also concluded that injunctive relief may be appropriate. It appointed Hartigan as the class representative.

Tampa Service Company appealed the class certification order, contending that the trial court failed to specifically name the subsections under which the action was maintainable. Rule 1.220(d)(1) states:

[T]he court (A) may allow the claim or defense to be so maintained, and, if so, shall state under which subsection of subdivision (b) the claim or defense is to be maintained, (B) may disallow the class representation and strike the class representation allegations, or (C) may order postponement of the determination pending the completion of discovery concerning whether the claim or defense is maintainable on behalf of a class. (Emphasis supplied).

Tampa Service Company acknowledges that the order “contains some statements that seem to relate” to certain parts of subsection (b), but complains that the order does not conform to Rule 1.220(d)(l)’s express requirement to identify under which of the two subsections of subdivision (b) of the rule that the claim is to proceed. Although the trial court does not expressly state that it certified the action under (b)(2) and (b)(3), the order sufficiently tracks the language in the rule such that it is clear under which subsections the court found the action to be maintainable.

The following language in paragraph 8 of the order mirrors that in subsection (b)(2):

8. Based upon the information presently before the Court, if Plaintiff is successful in establishing the proof to support the allegations made in the amended complaint, he will have established the Defendant’s conduct as being consistent to all members of the class, thereby making possible an Order granting injunctive relief. The decision concerning the issuance of an injunction is to be announced by the Court upon the completion of presentation of testimony.

Subsection (b)(2) of the rule provides:

[T]he party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate!!]

Further, paragraph 7 tracks the language in subsection (b)(3):

7. Resolution of the issue of the propriety or impropriety of the practice alleged to have been engaged in by defendant in reference to plaintiff and the putative [ ] class members, will predominate over any individual issues which may exist with respect to ,the class, only one body of evidence will be necessary to prove liability and mini-trials will not be required. If Plaintiff is successful in proving his case, by so doing he will necessarily prove the cases for each of the other members of the class. If each member of the class was required to retain his or her individual attorney, and litigate this matter on an individual case basis, the expense of litigation would be cost prohibitive and would, more likely than not, from an economic standpoint, prevent individual class members from obtaining the services of competent counsel to pursue the claim.

Subsection (b)(3) of the rule provides:

[T]he claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

We conclude that the order sufficiently complies with the procedural requirements of Florida Rule of Civil Procedure 1.220(d) and that certification of the class under both subsections (b)(2) and (b)(3) is not improper where the plaintiff is seeking both monetary damages and injunctive relief. See Seven Hills, Inc. v. Bentley, 848 So.2d 345, 347 (Fla. 1st DCA 2003); Davis v. Powertel, Inc., 776 So.2d 971, 974-75 (Fla. 1st DCA 2000).

In its final point for reversal, appellant argues that the trial court erred for two reasons in appointing Hartigan as class representative. First, appellant asserts that Hartigan has “serious credibility problems” that would impede his ability to adequately represent the class. Second, appellant argues that Hartigan benefited from Tampa Service Company’s transportation over-charges and thus has a conflict of interest with other class members.

The trial court has broad discretion to determine whether a class representative is fit to serve, and the court’s decision will not be disturbed absent a showing of abuse of discretion. See McFadden v. Staley, 687 So.2d 357, 359 (Fla. 4th DCA 1997) (“A trial court’s determination as to the qualifications of plaintiffs to adequately represent a class will not be disturbed on appeal absent a showing of a clear abuse of discretion.”). After reviewing the record in this case, we can find no clear abuse of the court’s discretion in finding Hartigan suitable to serve as the class representative.

Affirmed.

WARNER and STEVENSON, JJ., concur.

      . Recently, in Liner v. Workers Temporary Staffing, Inc., 962 So.2d 344 (Fla. 4th DCA 2007), we determined that section 448.24(1)(b), Florida Statutes, is void for vagueness and therefore unconstitutional under the Due Process Clause of the Federal and Florida Constitutions. Liner is now before the Florida Supreme Court as a matter of right-Case No. SC07-1470. See also Art. V, § 3(b)(1), Fla. Const.; Fla. R.App. P. 9.030(a)(1)(A)(ii).


author: POLEN, J.

text:
    Ricardo JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2605.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.

      Ricardo James, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Ricardo James, appeals the trial court’s summary denial of his rule 3.850 motion for post-conviction relief. James raises five claims in this appeal and we find merit in claims one and two. As to these two claims, James argues he received ineffective assistance of counsel because defense counsel failed to call three witnesses that were crucial to his defense. We affirm the trial court’s summary denial of all but claims one and two of James’s motion and reverse and remand with instructions for the trial court to allow James to amend his motion on these claims.

“[A] defendant alleging an ineffective assistance of counsel claim must set out in his or her motion sufficient alleged facts which, if proven, would establish the two prongs necessary for relief based upon ineffectiveness as outlined in Strickland.” Nelson v. State, 875 So.2d 579, 582 (Fla.2004). “In a rule 3.850 motion, a defendant must therefore assert facts that support his or her claim that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s deficient performance.” Id. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

James’s motion alleges that he received ineffective assistance of counsel because defense counsel failed to call two alibi witnesses and an eyewitness in his defense. In making these types of claims: “a defendant ... [is] required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel’s failure to call, interview, or. present the witnesses who would have so testified prejudiced the case.” Nelson, 875 So.2d at 583. “That a witness would have been available to testify at trial is integral to the prejudice allegations.” Id. In this case, James’s motion fails to allege these witnesses would have been available for trial. While the state argues that we should affirm without prejudice for appellant to file an amended motion, Nelson teaches that the better practice is to reverse and remand:

We do not ... want postconviction relief to be denied simply because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. Therefore, when a defendant fails to allege that a witness would have been available, the defendant should be granted leave to amend the motion within a specified time period.

Id. at 583-84.

We reverse the trial court’s summary denial of claims one and two of James’s motion and remand to the trial court to allow James an opportunity to cure the pleading defect within thirty days. See Petz v. State, 917 So.2d 381, 383 (Fla. 2d DCA 2005). “If [James] cures the defects, the postconviction court should either attach those portions of the record conclusively refuting his claim or hold an eviden-tiary hearing on whether trial counsel was ineffective for failing to call the alibi witness.” Id. We affirm the trial court’s summary denial of all other claims.

STONE and GROSS, JJ., concur.


text:
    George ESTEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2408.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.

      George Esteves, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

George Esteves appeals the order summarily denying his rule 3.800(a) motion, challenging his habitual felony offender sentence imposed for aggravated battery on a law enforcement officer, committed in January 1995. He asserted that section 775.0823(9), Florida Statutes (1995), authorized the trial court tó sentence him only pursuant to the sentencing guidelines. We affirm.

We agree with Esteves that the trial court erred in denying his motion as successive to his prior rule 3.800(a) motion, without attaching any portions of the record to support its conclusion that the same argument was raised in that motion. Waterfield v. State, 736 So.2d 735 (Fla. 2d DCA 1999). Moreover, our own records for his prior appeal, Esteves v. State, 947 So.2d 446 (Fla. 4th DCA 2006) (Table), indicate that this argument actually was not raised in his prior rule 3.800(a) motion.

However, the error was harmless. Esteves’ precise claim was procedurally barred because it was raised and rejected on direct appeal. Esteves v. State, 837 So.2d 990 (Fla. 4th DCA 2003) (Table). Furthermore, it lacks merit. See Mills v. State, 822 So.2d 1284, 1287 (Fla.2002) (concluding that, although certain offenses were excluded from habitual sentencing, “the Legislature did not intend felony convictions pursuant to section 784.07 to be so excluded”); Kenon v. State, 780 So.2d 258 (Fla. 5th DCA 2001); Staff of Fla. H.R. Comm, on Crime Prevention, Corrections & Safety, HB 375, Staff Analysis at 6 (March 27, 2001) (explaining that 2001 amendment to section 775.0823 was “intended to clarify that a defendant convicted of one of these offenses could be punished under the Criminal Punishment Code or could receive an enhanced sentence such as a habitual felony offender sentence”) (emphasis added).

Affirmed.

STONE, POLEN and MAY, JJ., concur.


author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Thomas Wayne PATTERSON, Appellee.
    No. 2D06-1799.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellant.
    Frank D.L. Winstead of Winstead Law Offices, Land O’Lakes, for Appellee.
   WALLACE, Judge.

The State appeals from an order granting Thomas Wayne Patterson’s motion for postconviction relief on the ground of ineffective assistance of trial counsel. After an evidentiary hearing, the postconviction court set aside Mr. Patterson’s conviction for second-degree murder and awarded him a new trial. Because we find that Mr. Patterson failed to establish either deficient performance by his trial counsel or that trial counsel’s alleged omissions prejudiced the outcome of the trial, we reverse the postconviction court’s order.

I. THE TRIAL AND THE DIRECT APPEAL

On August 8, 1997, James Dunn was shot to death in Pasco County. The State charged Mr. Patterson with the second-degree murder of Mr. Dunn. The case went to trial during the week of November 16,1998. Mr. Michael Tewell of the Public Defender’s office represented Mr. Patterson during the trial proceedings.

At trial, the evidence showed that Mr. Dunn lived in an isolated, rural area northeast of Dade City. He regularly sold illegal drugs. In the predawn hours of August 8, someone shot Mr. Dunn three times and left him to bleed to death outside his residence. The State relied in part on the testimony of David Wayne Long, generally known as “Boomer,” to link Mr. Patterson to the shooting death of Mr. Dunn. Both Mr. Patterson and Boomer were present at the scene of the shooting, and each man had a motive to harm Mr. Dunn.

On the day before the shooting occurred, Boomer had become very angry with Mr. Dunn. In addition to dealing drugs, Mr. Dunn was also a “shade tree mechanic.” He had performed repairs on Boomer’s truck. Mr. Dunn was holding the truck at his residence until Boomer paid him for the repair work. On the day preceding the shooting, Boomer had been at Mr. Dunn’s residence and had tried to obtain the release of his truck without making payment. When Mr. Dunn refused to release the truck, Boomer became irate. Several witnesses testified that Boomer was drinking heavily that day and into the evening.

Later that evening, Boomer told Mr. Patterson — a longtime friend of Mr. Dunn — that Mr. Dunn had accused Mr. Patterson of being a “snitch” for law enforcement. According to another witness, James Waldrup, this information got Mr. Patterson “pretty well riled up.” Mr. Patterson’s mental state was likely affected by his use of methamphetamine over a period of several days preceding the shooting. Mr. Patterson’s wife testified that he became quick to anger when he was using methamphetamine and that his temper became worse the longer he had been using the drug. Mr. Waldrup described Mr. Patterson as “blistered” and not himself.

In the early morning hours of August 8, Mr. Patterson and Boomer decided to drive to Mr. Dunn’s residence to confront him about his alleged characterization of Mr. Patterson as a law enforcement snitch. Before departing, Mr. Patterson instructed Mr. Waldrup — in quite vulgar language— to inform Mr. Dunn that he and Boomer were on their way to do harm to Mr. Dunn. Mr. Waldrup took this threat so seriously that he drove to Mr. Dunn’s residence. Mr. Waldrup warned Mr. Dunn and his girlfriend about Mr. Patterson’s threat, and he recommended that they flee. Disregarding what would prove to be excellent advice, Mr. Dunn and his girlfriend refused to leave their isolated residence.

After Mr. Waldrup had departed, Mr. Patterson and Boomer arrived at Mr. Dunn’s residence. They were accompanied by Timothy Strickland and Linda Gif-ford. Both Mr. Strickland and Ms. Gifford testified for the State at trial. Although there were several other people in the residence, Mr.. Dunn, who was unarmed, came outside alone to meet Mr. Patterson and Boomer. Mr. Strickland got out of the car but stood beside it. Ms. Gifford remained sitting in the car. Mr. Patterson and Boomer both walked away from the car to meet Mr. Dunn and began to argue with him.

Boomer’s trial testimony concerning what happened next was as follows: During the course of the argument, Mr. Patterson produced a .380 caliber pistol. Boomer asked Mr. Patterson to give him the pistol, and Mr. Patterson complied. Boomer took the pistol and aimed it at his own truck, but he did not fire. After watching Boomer’s gesture, Mr. Patterson demanded the return of the pistol. Boomer handed the pistol back to Mr. Patterson, and Mr. Patterson fired one shot into the ground. Then, Mr. Patterson fired several more shots at Mr. Dunn.

Mr. Strickland testified that he saw Mr. Patterson fire the first shot into the ground. After the initial gunshot, Mr. Strickland immediately ducked for cover. For this reason, he heard but did not see Mr. Patterson fire the volley that followed. Ms. Gifford testified that she heard gunshots but that she did not see who pulled the trigger.

After the gunshots were fired, all three men got back into the waiting car with Ms. Gifford. Mr. Strickland testified that as the foursome fled the scene in the car, he remarked, ‘You better hope he doesn’t die.” According to Mr. Strickland, Mr. Patterson responded, “He’s not going to die; I just shot him in the legs.” Ms. Gifford’s recollection of Mr. Patterson’s response was hazy, but her testimony generally corroborated Mr. Strickland’s testimony on this point. Both Mr. Strickland and Ms. Gifford also testified that they heard Boomer express the hope that Mr. Dunn-would die.

During the foursome’s ride away from the area, Boomer and Mr. Strickland— who were sitting in the back seat — disassembled the pistol that was used in the shooting and threw the parts out the car’s windows. Several days later, with Boomr er’s help, sheriffs deputies recovered the barrel and another part of the pistol from the Gant Lake Canal in Sumter County. A firearms examiner testified that the two bullets that were removed from Mr.' Dunn’s body were fired from the pistol’s barrel.

The defense called four witnesses at trial. None of these witnesses had been present at the scene of the shooting. Ronald R. Bell, a toxicologist, was one of the defense witnesses. Mr. Bell testified that a post-mortem drug screen demonstrated that Mr. Dunn was under the influence of methamphetamine at the time of his death. Mr. Patterson did not attempt to establish an alibi, and he did not take the stand in his own defense. In closing argument, Mr. Patterson’s trial counsel suggested to the jury that the evidence supported the hypothesis that Boomer was the shooter, not Mr. Patterson.

The jury found Mr. Patterson to be guilty as charged. On November 19, 1998, the trial court adjudged Mr. Patterson to be guilty in accordance with the jury’s verdict and sentenced him to life in prison. Mr. Patterson took a direct appeal, and this court affirmed his judgment and sentence. Patterson v. State, 744 So.2d 1001 (Fla. 2d DCA 1999) (table decision).

II. THE POSTCONVICTION PROCEEDINGS

A. The Motion

After his conviction was affirmed on direct appeal, Mr. Patterson filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his motion, Mr. Patterson alleged three claims of ineffective assistance of counsel. Patterson v. State, 845 So.2d 311, 311 (Fla. 2d DCA 2003). The third claim was based on the alleged omission of counsel to call witnesses at trial. Id. at 312. Mr. Patterson alleged that two State witnesses implicated him in the murder of Mr. Dunn, a neighborhood drug dealer. Id. Mr. Patterson claimed that his trial “counsel was ineffective for failing to investigate four other witnesses from the neighborhood and for failing to call them to testify at trial.” Id. On appeal from the postconviction court’s summary denial of the motion, this court held that the third ground of Mr. Patterson’s motion stated a facially sufficient claim for relief. Id. Accordingly, we reversed the summary denial of the motion’s third claim and remanded for the postcon-viction court to either conduct an eviden-tiary hearing or to provide record attachments demonstrating that Mr. Patterson was not entitled to relief. Id.

B. The Evidentiary Hearing

On remand, the postconviction court chose to conduct an evidentiary hearing on Mr. Patterson’s claim concerning trial counsel’s alleged omission to call the four witnesses who had been identified in the motion. Mr. Patterson was represented by counsel at the hearing. However, post-conviction counsel presented evidence concerning only one of the four potential witnesses — Charles Richard Spriggs. Both Mr. Patterson and Mr. Spriggs testified for the defense at the hearing. On the other hand, the State did not call any witnesses. Notably, neither the State nor Mr. Patterson called Mr. Tewell as a witness despite his appearance at the hearing in accordance with a subpoena.

At the evidentiary hearing, Mr. Patterson argued that Mr. Spriggs’ testimony would have refuted — at least in part— Boomer’s account of the killing. In addition, Mr. Patterson claimed that Mr. Spriggs’ testimony would have offered an alternative scenario that featured Boomer in the role of the shooter instead of an onlooker. Mr. Patterson argued that this testimony would have raised a reasonable doubt of his guilt.

Based on the evidence that was presented and proffered at the evidentiary hearing, Mr. Patterson argued that if Mr. Spriggs had been called as a witness at trial, he would have been able to testify to the following facts: Mr. Spriggs had been present at Mr. Dunn’s residence earlier during the day of August 7. Mr. Spriggs was aware that Mr. Dunn and many of the people who were in and about the residence that day were using alcohol and illegal drugs. Based on conversations he had with several people, Mr. Spriggs was also aware that Mr. Dunn and Boomer had had a disagreement about the debt that Boomer owed Mr. Dunn for repairs to Boomer’s truck. Approximately eight hours before the shooting occurred early on August 8, Mr. Spriggs had seen Boomer in possession of a handgun. Mr. Spriggs had also heard Boomer say that he was going out to Mr. Dunn’s residence “to get his truck one way or another.” Before Mr. Patterson departed from his own home with Boomer and their two companions to go to Mr. Dunn’s residence, Mr. Spriggs took a .22 caliber derringer from Mr. Patterson. Mr. Spriggs remained at Mr. Patterson’s home until Mr. Patterson and Boomer returned from their visit to Mr. Dunn’s residence. Upon their return, Mr. Spriggs asked Mr. Patterson “what [Mr. Patterson] was doing back at the house.” Further, Mr. Spriggs informed Mr. Patterson that Mr. Patterson was being sought in connection with Mr. Dunn’s murder. Mr. Patterson responded by denying that he had shot Mr. Dunn and added, “Boomer’s the one who shot him.” Boomer — who was present during Mr. Spriggs’ conversation with Mr. Patterson — did not deny Mr. Patterson’s accusation that Boomer had shot Mr. Dunn. Instead, Boomer “hung his head and walked off.”

C. The Postconviction Court’s Order

The postconviction court did not announce its ruling or any findings of fact at the conclusion of the evidentiary hearing. Instead, the postconviction court took the matter under advisement, and it subsequently entered a written order. Stated in their entirety, the postconviction court’s findings of fact and conclusions of law that appear in its order are as follows:

The court heard testimony from [Mr. Patterson] and from Mr. Spriggs. Trial counsel Michael Tewell appeared in response to a subpoena but did not testify at the evidentiary hearing. The court also reviewed the court file and carefully read the entire trial transcript. Based on the record and the testimony at the hearing, the court finds that [Mr. Patterson] proved that counsel’s performance was deficient in failing to call Mr. Spriggs as a witness at the trial, and that this deficiency prejudiced the defense. Strickland v. Washington, [466 U.S. 668] 104 S.Ct. 2052 [80 L.Ed.2d 674] (1984). There was no evidence presented at the hearing that trial counsel’s decision not to call Mr. Spriggs was tactical.. Further, there is a reasonable probability that had Mr. Spriggs been called as a witness, the verdict might have been different.

Based on this reasoning, the postconviction court awarded Mr. Patterson a new trial. The State appeals this order.

III. THE TEST FOR ESTABLISHING AN INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM

The test for establishing an ineffective-assistance-of-counsel claim is a two-pronged one:

(1) The claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.
(2) The clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To establish the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In this context, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

IV. THE STANDARD OF REVIEW

A trial court’s ruling on a motion for postconviction relief based on a claim of ineffective assistance of counsel presents a mixed question of fact and law. This factor determines our standard of review of a trial court’s order on such a motion:

An appellate court reviews the denial of a motion for postconviction relief alleging ineffective assistance of counsel as a mixed question of fact and law. While affording great deference to the trial court’s factual findings, the court conducts an independent review of the legal conclusions flowing from those findings. As stated in Stephens v. State, 748 So.2d 1028 (Fla.1999), “under Strickland, both the performance and prejudice prongs are mixed questions of law and fact, with deference to be given only to the lower court’s factual findings.” Id. at 1083 (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052).

Lee v. State, 899 So.2d 348, 352 (Fla. 2d DCA 2005). These principles are applicable equally where — as in this case — the trial court grants a motion for postconviction relief alleging ineffective assistance of counsel. Unfortunately, the postconviction court’s findings of fact in this case are unsupported by any analysis of the evidence at trial or by the testimony of Mr. Patterson and Mr. Spriggs at the hearing. Consequently, we give these conclusory findings minimal deference.

V. DISCUSSION

A. The Deficient Performance Prong

(1) The trial court’s focus on the absence of testimony by trial counsel

The postconviction court noted in its order that “no evidence [was] presented at the hearing that trial counsel’s decision not to call Mr. Spriggs was tactical.” We take issue with this statement for two reasons. First, the statement reflects the postcon-viction court’s implied but erroneous assumption that Mr. Patterson’s testimony at the hearing assailing Mr. Tewell’s performance as ineffective must be taken as true because the State did not call Mr. Tewell in rebuttal. Second, the statement ignores the hearing testimony from both Mr. Patterson and Mr. Spriggs demonstrating that Mr. Tewell had several excellent reasons for not calling Mr. Spriggs as a witness at Mr. Patterson’s trial. We will consider each of these areas of our disagreement with the postconviction court’s statement.

(2) The strong presumption of reasonable performance

Under Strickland, the defendant bears the burden of overcoming a strong presumption of counsel’s reasonable performance. Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000) (“There is a strong presumption of reasonableness that must be overcome, and strategic or tactical decisions by counsel made after a thorough investigation are ‘virtually unchallengeable.’ ” (citing Downs v. State, 453 So.2d 1102, 1108 (Fla.1984))). A defendant does not overcome this burden by default merely because the State either cannot or does not provide specific evidence that trial counsel’s actions under review were based on strategic or tactical considerations.

In State v. Chattin, 877 So.2d 747, 749 (Fla. 2d DCA 2004), this court considered a similar situation where “[defense] counsel could not remember the case” and the trial court found that “the State had not presented any evidence to show [that] counsel’s actions were tactical.” Although the Chattin court found it unnecessary to decide the deficient performance prong of Strickland, it noted that “[t]he trial court erred as a matter of law in improperly shifting to the State the burden to prove that Chattin’s counsel’s actions were a product of reasonable trial strategy.” Id. at 749 n. 2 (emphasis added). Therefore, although Mr. Tewell’s testimony might have been helpful to the court, the fact remains that Mr. Patterson had first to overcome the strong presumption of trial counsel’s reasonable performance before the State was required to present any evidence on the issue.

(3) The evidence at the hearing substantiating reasonable performance

This brings us to our second area of disagreement with the postconviction court’s statement that is quoted above. In fact, abundant evidence of tactical or strategic reasons not to call Mr. Spriggs as a trial witness appears in Mr. Patterson’s hearing testimony about his conversations with Mr. Tewell before and during the 1998 trial:

Q [Postconviction counsel] Did you ever have a conversation with your attorney regarding Richard Spriggs?
A [Mr. Patterson] [My attorney] tried to say that I didn’t need [Mr. Spriggs as a witness] and I told him that I wanted [Mr. Spriggs]. Yes.
Q When did this conversation occur regarding that you wanted him? Was it during your trial, before your trial? When was it?
A Actually, I think we had one before the trial and [one] during the trial.
Q In the conversation during the trial, did [your attorney] tell you why he felt that [Mr. Spriggs] wasn’t needed?
A He said that [Mr. Spriggs] had told the State [Attorney] that I had confessed to [Mr. Spriggs].
Q That [Mr. Spriggs] had told the State Attorney that?
A Yes, sir.
Q And that would be used against [Mr. Spriggs as a] witness?
A Yes, sir.
Q Did he mention any prior record that [Mr. Spriggs] could be attacked on credibility, in terms of prior record?
A There’s drugs. He said it was because of [Mr. Spriggs’] drugs. He said he was into drugs — had drug charges.

Moreover, the trial transcript corroborates Mr. Patterson’s hearing testimony about what Mr. Tewell said concerning Mr. Spriggs’ conversation with the “State Attorney.” Before trial, Mr. Tewell anticipated that Mr. Spriggs might testify for the State. During a series of motions heard immediately before Mr. Patterson’s trial began, Mr. Tewell represented to the trial court that Mr. Spriggs is “going to claim that once upon a time my client said he shot Jimmy Dunn. And this is after he said — after—according to Mr. Spriggs, ... Tommy Patterson said a number of times that it was Boomer who did it.” (Emphasis added.) Ultimately, the State did not call Mr. Spriggs to testify at Mr. Patterson’s trial.

In addition, Mr. Spriggs himself offered probative testimony at the evidentiary hearing about Mr. Tewell’s decision not to call Mr. Spriggs as a witness at trial:

Q [Postconviction counsel] Did you discuss with Mr. Tewell the facts of the case — where you feel that you could testify?
A [Mr. Spriggs] Yes, sir.
Q All right. Did he ever indicate to you whether or not you would be called?
A He told me I wouldn’t be called because of my differences with [the assistant state attorney] in prior cases and some other cases that was [sic] pending against me with the FDLE.
Q Those were allegations regarding a homicide; is that right?
A Yes, sir.
Q Were you ever charged in the homicide?
A Never. Never even questioned.

Thus, according to Mr. Patterson, Mr. Tewell declined to call Mr. Spriggs as a trial witness because Mr. Spriggs was a drug user with a criminal record who had previously informed the prosecutor that Mr. Patterson had confessed to the murder of Mr. Dunn. The trial transcript confirms that this was Mr. Tewell’s understanding of what Mr. Spriggs might say at trial. Mr. Spriggs himself said that Mr. Tewell’s decision not to call him as a witness stemmed from a pending investigation into Mr. Spriggs’ suspected involvement in an unrelated murder. Whether or not Mr. Spriggs was ultimately charged with that crime, the pendency of such an investigation would have given Mr. Spriggs a strong incentive to testify for the State against Mr. Patterson either to escape prosecution or to obtain leniency in the unrelated matter. In their testimony at the evidentiary hearing, neither Mr. Patterson nor Mr. Spriggs disputed the facts underpinning Mr. Tewell’s stated reasons for deciding not to call Mr. Spriggs as a witness. Thus the evidence presented at the hearing does not support the postconviction court’s finding that “no evidence [was] presented at the hearing that trial counsel’s decision not to call Mr. Spriggs was tactical.”

(4) Defense counsel’s perspective at the time of trial

Mr. Patterson does not claim that Mr. Tewell failed to interview Mr. Spriggs prior to trial. In fact, Mr. Tewell took Mr. Spriggs’ pretrial deposition. When the deposition was taken, Mr. Spriggs was being housed in the Pasco County Detention Center on a pending murder charge. At the time, Mr. Spriggs was charged with sale and possession of methamphetamine, failure to appear, driving while his license was suspended, and having an improper license tag. He was also under investigation in connection with two other murders. In addition, Mr. Spriggs admitted to having multiple felony convictions.

On numerous'occasions during his deposition, Mr. Spriggs either asserted his Fifth Amendment right to refuse to answer questions that might incriminate -him or declined to answer questions that he deemed irrelevant to the case against Mr. Patterson for the murder of Mr. Dunn. A telling exchange took place when Mr. Te-well asked Mr. Spriggs about the prospect of his testimony at Mr. Patterson’s trial:

Q [Mr. Tewell] All right. Did Detective Medley tell you that [the assistant state attorney] would want you to testify in the Patterson case?
A [Mr. Spriggs] Yes, sir.
Q Did you ask Detective Medley what [the assistant state attorney] was going to offer you in exchange for your testimony in the Patterson case?
A Yes, sir.
Q What did Medley tell you in response?
. A He said he wouldn’t — he probably wouldn’t give me nothing.
Q What did you tell him?
A Told him I wasn’t going to do it then.
Q Why not?
A Why should I?
Q I asked you why not.
A Ain’t—
Q What would you want in exchange for your testimony?
A This case off of me.
Q Which case is that?
A This methamphetamines that I haven’t sold. I didn’t sell it.

Thus, prior to trial, a detective had approached Mr. Spriggs about testifying as a witness for the State. However, Mr. Spriggs had refused to testify unless the pending drug charges against him were dismissed.

With this background in mind, we turn to the question of whether Mr. Tewell provided reasonably competent representation to Mr. Patterson in November 1998 when Mr. Tewell chose not to call Mr. Spriggs as a witness at trial. Here, we find guidance in this court’s decision in Lee:

An examination of counsel’s performance begins with a strong presumption that it is reasonable and is considered from the attorney’s perspective under the circumstances at the time of trial. Downs v. State, 453 So.2d 1102, 1106 (Fla.1984). However, to make valid strategic or tactical decisions, an attorney “has a duty to make reasonable investigations or to make a reasonable decision that particular investigations are unnecessary.” Light v. State, 796 So.2d 610, 616 (Fla. 2d DCA 2001) (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

899 So.2d at 352 (emphasis added). Thus the focus of our inquiry must be on the circumstances as they appeared to Mr. Tewell at the time of trial rather than viewed in hindsight.

Based on Mr. Spriggs’ deposition testimony, Mr. Tewell would certainly have recognized that Mr. Spriggs was unlikely to be a credible witness. Mr. Spriggs was a drug-user with multiple felony convictions who was currently facing drug and murder charges. The State had approached Mr. Spriggs about the possibility of having him testify at Mr. Patterson’s trial, but Mr. Spriggs was demanding leniency on the pending drug charges in return for his testimony. It is true that Mr. Spriggs did not claim in his deposition that Mr. Patterson had admitted killing Mr. Dunn. But Mr. Patterson’s testimony at the evidentiary hearing and Mr. Te-well’s representations to the court immediately before the trial began strongly suggest that Mr. Tewell had learned from another source that Mr. Spriggs had made such a claim to a representative of the State Attorney’s office.

Our review of Mr. Spriggs’ pretrial deposition reveals that Mr. Tewell would reasonably have concluded that Mr. Spriggs’ testimony would have been of little assistance to the defense — certainly not enough to overcome his credibility issues and to warrant taking the risk that he might testify that Mr. Patterson had admitted killing Mr. Dunn. Mr. Spriggs was not present at the scene of the shooting early on the morning of August 8, 1998. Mr. Spriggs last saw both Mr. Patterson and Boomer before they went to Mr. Dunn’s residence, and he did not see them again until later the next morning. Mr. Spriggs did have personal knowledge of the dispute between Mr. Dunn and Boomer over the debt for the truck repairs, and he had heard Boomer say that “he was going to come back and get the truck one way or the other.” But Mr. Tewell’s opening statement at Mr. Patterson’s trial demonstrated his expectation that several State witnesses would testify concerning Boomer’s quarrel with Mr. Dunn about the truck. In fact, at least four State witnesses gave such testimony.

Moreover, Mr. Spriggs did not testify in his 1998 deposition that he saw either Mr. Patterson or Boomer with a firearm before they left Mr. Patterson’s residence (where Mr. Spriggs remained) early on the morning that Mr. Dunn was killed. Mr. Spriggs claimed that he next saw Mr. Patterson at 10:30 or 11 a.m. the next morning. According to Mr. Spriggs’ deposition testimony, when he told Mr. Patterson that Mr. Dunn was dead, Mr. Patterson responded, “I ain’t did that, Dog.” Mr. Tewell explored this response with additional questions:

Q [Mr. Tewell] All right. Did [Mr. Patterson] tell you what happened?
A [Mr. Spriggs] He told me that — he said, “I didn’t — -I didn’t do this. Boomer — Boomer did it.” That’s the very words he told me.
Q Did he describe—
A He said that he had been arguing with [Mr. Dunn] about the deal.
Him [sic] and [Mr. Dunn] had been arguing about this snitch issue, and they had ironed out their grievances, and he turned around to walk away, and Boomer grabbed the gun from him, and he walked on to the car. And as he got to the car and lit a cigarette, he said he turned back around and Boomer shot [Mr. Dunn], [Mr. Patterson] turned around and he ... heard the three shots.

Although Mr. Spriggs indicated that Boomer was in the general vicinity when this conversation with Mr. Patterson occurred, Mr. Spriggs’ pretrial deposition testimony does not indicate whether Boomer had actually heard the conversation. Significantly, Mr. Spriggs did not say whether Boomer had any reaction to Mr. Patterson’s statement: “I didn’t — I didn’t do this. Boomer — Boomer did it.”

In evaluating Mr. Spriggs’ deposition testimony before trial, Mr. Tewell would likely have concluded that most of Mr. Spriggs’ deposition testimony about the disagreements among Mr. Dunn’s circle of acquaintances was not only inadmissible hearsay but was also cumulative to other witnesses’ testimony. Furthermore, Mr. Tewell would very likely have recognized that Mr. Spriggs’ account of Mr. Patterson’s morning-after version of how Mr. Dunn was killed constituted inadmissible hearsay. Mr. Spriggs’ testimony about Mr. Patterson’s out-of-court statement denying guilt ánd naming Boomer as the shooter would not have been admissible as substantive evidence under a hearsay exception — an admission under section 90.803(18), Florida Statutes (Supp.1998)— because it would not have been offered against Mr. Patterson at trial. See Lott v. State, 695 So.2d 1239, 1242-43 (Fla.1997); Cotton v. State, 763 So.2d 437, 439 (Fla. 4th DCA 2000); Charles W. Ehrhardt, Florida Evidence § 801.3 (2006 ed.).

To summarize, Mr. Spriggs was a “loose cannon.” He had made conflicting statements, and he had major credibility problems. Adding to Mr. Spriggs’ unsuitability as a witness was his disinclination to testify without a promise of some benefit for taking the witness stand. Under these, circumstances, it is not surprising that neither the State nor the defense called Mr. Spriggs as a witness at trial. Furthermore, Mr. Spriggs’ deposition demonstrated that any testimony he could have offered that .would have been admissible at trial could have assisted the defense on only two points: (1) Mr. Spriggs had personal knowledge of the quarrel that Boomer had with Mr. Dunn and (2) Mr. Spriggs had personal knowledge that on August 7, Mr. Dunn and many of the people who were in and about his residence were using alcohol and illegal drugs. However, both of these points were established at trial by the testimony of several other witnesses.

For all of these reasons, we conclude that Mr. Patterson failed to overcome the strong presumption that Mr. Tewell acted reasonably in deciding not to call Mr. Spriggs as a witness at trial. The testimony given by Mr. Patterson and Mr. Spriggs at the evidentiary hearing, Mr. Tewell’s representations to the court at the beginning of the trial, and Mr. Spriggs’ pretrial deposition all support the conclusion that Mr. Tewell’s decision to forego calling Mr. Spriggs as a defense witness was a reasonable trial strategy. Indeed, it is fair to say that a decision by Mr. Tewell to call Mr. Spriggs as a witness at trial would have been both ill-advised and reckless.

B. The Prejudice Prong

Although an analysis of the prejudice prong under Strickland is unnecessary when — as here — the defendant has failed to establish deficient performance, we are unable to discern any prejudice resulting from Mr. Tewell’s decision not to call Mr. Spriggs as a witness at trial. We begin by noting the obvious — Mr. Patterson’s claim was for the alleged ineffective assistance of trial counsel, not a claim of newly discovered evidence. Thus the proper subjects of the inquiry on the reasonableness of Mr. Tewell’s decision not to call Mr. Spriggs as a witness at trial should have been what Mr. Tewell knew before trial about what Mr. Spriggs could say concerning the facts of the case, Mr. Spriggs’ credibility as a witness, and the testimony that might be anticipated from other prospective witnesses. Instead, Mr. Spriggs was permitted to testify at the hearing about entirely new matters that he had not mentioned in his deposition six years earlier. At the hearing, Mr. Spriggs testified for the first time that he had seen Boomer with a small, silver handgun on the night preceding the early-morning murder. Mr. Spriggs also claimed — again for the first time — that before Boomer and Mr. Patterson departed for Mr. Dunn’s residence, he saw Boomer put the small, silver handgun in his pocket. In addition, Mr. Spriggs testified that he asked Mr. Patterson to leave a second gun — Mr. Patterson’s .22 caliber derringer — with him. Mr. Patterson acquiesced, and Mr. Spriggs took the derringer. According to Mr. Spriggs’ testimony at the hearing, Mr. Patterson left his gun with Mr. Spriggs because Mr. Spriggs was “watching” Mr. Patterson’s house for him.

The most controversial subject of Mr. Spriggs’ hearing testimony centered on the conversation that he said he had conducted with Mr. Patterson in Boomer’s presence later that morning, after Mr. Dunn had been shot. The State objected to this testimony as hearsay, and the post-conviction court sustained the objection. Mr. Patterson’s counsel proffered that Mr. Spriggs would testify that when Mr. Patterson denied being the shooter and instead accused Boomer, “Boomer was sitting there, hung his head and walked off. Did not deny it.” Mr. Patterson’s counsel argued that this testimony would have been admissible to impeach Boomer’s credibility because Boomer had testified at trial. The State responded that Mr. Spriggs’ testimony on this point was inadmissible hearsay and that Boomer’s testimony was “not the only thing that tie[d] Mr. Patterson to this murder.” The post-conviction court appeared to rule from the bench that Boomer’s alleged silence would have been admissible at trial.

The new details about the weapons and Boomer’s alleged shamefaced reaction to Mr. Patterson’s shifting the blame for Mr. Dunn’s death ought not to have been considered in determining the ineffective-as-sistanee-of-counsel claim. Instead, the claim should have been evaluated strictly “considered from the attorney’s perspective under the circumstances at the time of trial.” Lee, 899 So.2d at 352 (citing Downs v. State, 453 So.2d 1102, 1106 (Fla.1984)). Although the postconviction court did not elaborate on its reasoning, a review of the hearing transcript leads inescapably to the conclusion that the postconviction court relied at least in part on Mr. Spriggs’ new disclosures for its conclusion that “there [was] a reasonable probability that had Mr. Spriggs been called as a witness, the verdict might have been different.” We have thoroughly reviewed the trial transcript, Mr. Spriggs’ pretrial deposition, and the hearing transcript. Discounting Mr. Spriggs’ newly told details, we conclude that most of his testimony would have been either inadmissible or duplica-tive. It fell far short of demonstrating a reasonable probability that, but for omitting to call Mr. Spriggs, the result of the trial would have been different.

Nonetheless, we may take the analysis one step further and posit that Mr. Tewell could have used Mr. Spriggs’ testimony to effectively impeach Boomer based on Boomer’s alleged silence in the face of an accusation that he was the shooter. Assuming that Mr. Spriggs’ testimony would have caused the jury to disregard Boomer’s eyewitness account of the shooting, the State still proved the following critical facts through other witnesses: (1) when the shooting occurred, Mr. Patterson had been on a methamphetamine binge for several days; (2) Mr. Patterson was quick to anger when he was using methamphetamine; (3) Mr. Patterson was angry at Mr. Dunn because of the alleged snitch accusation; (4) before going to Mr. Dunn’s residence with Boomer, Mr. Patterson had announced his intention to harm Mr. Dunn; (5) Mr. Patterson had a gun in his hand and fired it at the scene of the killing; (6) immediately after the incident at Mr. Dunn’s residence, Mr. Patterson admitted to two other witnesses that he had shot Mr. Dunn; and (7) the bullets that were removed from Mr. Dunn’s body were fired from the pistol that Mr. Patterson had discharged at the scene. In other words, even if Boomer’s eyewitness account had been discredited, the testimony from other State witnesses — particularly Mr. Strickland and Ms. Gifford — would still have provided ample support for the jury’s verdict. Under these circumstances, we conclude that the omission of Mr. Spriggs’ testimony could not have so affected the fairness and reliability of Mr. Patterson’s trial that confidence in the jury’s verdict is undermined.

VI. CONCLUSION

For these reasons, Mr. Patterson failed to establish either prong of Strickland’s test for ineffective assistance of counsel. The postconviction court erred in granting Mr. Patterson’s motion and awarding him a new trial. Accordingly, we reverse the postconviction court’s order, and we remand this case with directions to reinstate Mr. Patterson’s judgment and sentence for second-degree murder.

Reversed and remanded with directions.

WHATLEY and DAVIS, JJ., Concur.

      .In fact, an autopsy revealed that Mr. Dunn had been shot three times, once in each leg and once in the left side of his chest. The leg wounds were not life-threatening. However, the bullet wound to Mr. Dunn's chest caused massive internal bleeding that resulted in his death.

      . A third bullet passed through Mr. Dunn's right leg below the knee. This bullet was not recovered.

      . The testimony of the three other defense witnesses is not pertinent to our discussion of the evidence that was presented at Mr. Patterson's trial.

      . Both postconviction counsel for Mr. Patterson and the assistant state attorney acknowledged in their closing arguments at the hearing the relevance of Mr. Tewell’s rationale for not presenting Mr. Spriggs’ testimony at trial. Nevertheless, neither of these attorneys identified any reason why Mr. Tewell was not called as a witness at the evidentiary hearing.

      . Mr. Dunn was shot with a .380 caliber, semi-automatic pistol, not a .22 caliber derringer.

      . This account of Mr. Spriggs' encounter with Mr. Patterson and Boomer after the shooting is based on a proffer made by Mr. Patterson's counsel at the hearing. The postconviction court sustained the State's objections to testimony by Mr. Spriggs concerning the po-stshooting encounter.

      . Mr. Spriggs testified at the evidentiary hearing that he had never told Mr. Tewell or any representative of the Public Defender's office that Mr. Patterson had confessed to shooting Mr. Dunn. He did not deny that he had made such a statement to representatives of the State Attorney's office.

      . Both the deposition transcript and the trial transcript were available to the postconviction court at the hearing on Mr. Patterson’s motion.

      . Since the State did not contend that Mr. Dunn had been shot with a .22 caliber pistol, it is difficult to see the relevance of testimony about Mr. Patterson’s surrender of such a weapon to Mr. Spriggs. Perhaps the defense's point was that Mr. Patterson had been willing to face Mr. Dunn unarmed.

      . See McBean v. State, 688 So.2d 383, 384 (Fla. 4th DCA 1997) ("It is well settled that a witness may be impeached by a prior inconsistent statement, including an omission in a previous out-of-court statement about which the witness testifies at trial, if it is material and would naturally have been mentioned.” (citing § 90.608(1), Fla. Stat. (1995), and State v. Smith, 573 So.2d 306, 313 (Fla. 1990))).

      . For the purpose of our analysis, we need not decide whether this would have constituted proper impeachment under section 90.608(1), Florida Statutes (1997).