author: PER CURIAM.

text:
    Ray Lamar JOHNSTON, Appellant, v. STATE of Florida, Appellee. Ray Lamar Johnston, Appellant, v. Edwin G. Buss, etc., Appellee.
    Nos. SC09-780, SC10-75.
    Supreme Court of Florida.
    March 24, 2011.
    Rehearing Denied June 3, 2011.

      Bill Jennings, Capital Collateral Regional Counsel, David D. Henry, Assistant CC Regional Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Ray Lamar Johnston appeals an order of the trial court denying his motion to vacate his conviction for first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habe-as corpus. For the reasons that follow, we affirm the trial court’s order denying postconviction relief. We also deny the habeas petition.

J. FACTS AND PROCEDURAL HISTORY

Johnston was charged with the 1997 murder, kidnapping, robbery, and sexual battery of Leanne Coryell and with burglary of a conveyance with assault or battery. Johnston v. State, 841 So.2d 349, 351 (Fla.2002). The jury found Johnston guilty on all charges and unanimously recommended the death penalty. The trial court followed the jury’s recommendation and sentenced Johnston to death. Id. at 355.

The evidence presented at Johnston’s trial demonstrated that Johnston had beaten, raped, and manually strangled Coryell, then dragged her to a pond and left her nude, floating face down. Id. at 352. When law enforcement arrived at the scene, Coryell’s car was in a nearby parking lot with the keys in the ignition and the engine still warm. Id. Later that night and early the next morning, ATM surveillance videos captured Johnston using Coryell’s ATM card to withdraw $1000 from her account. Id. Police obtained a warrant to search Johnston’s apartment, where they found a pair of wet tennis shoes matching three partial impressions found at the scene. Id.

After Johnston saw his picture on television, he voluntarily told police he was friends with Coryell and had gone out for dinner and drinks on the night of the murder. Id. At that time, he explained that he had loaned money to Coryell and that she had provided the ATM card so that Johnston could withdraw money from her account as repayment. Id. After making this initial statement, Johnston was arrested for grand theft. Id. He received Miranda warnings and agreed to continue the interview. Id. Thereafter, the detectives pointed out factual discrepancies in Johnston’s initial statement and confronted Johnston with the information that they had discovered his wet tennis shoes. Id. at 352-53. Johnston continued to deny his guilt and responded that law enforcement would not find any DNA evidence, hair, or saliva that would link him to the victim. Id. at 353.

At trial, the prosecution presented evidence that Coryell had clocked out of work over two hours after Johnston had purported to meet her for drinks. Id. at 351-52. His roommate testified that they lived in the same apartment complex as Coryell, that Johnston left the apartment that night without taking his car, and that Johnston returned later that night with money to repay a loan. Id. at 351. Johnston’s fingerprint was found on the outside of Coryell’s car. Id. at 352.

In imposing the death sentence, the trial court found four aggravators, one statutory mitigator, and numerous nonstatutory mitigators.

This Court affirmed Johnston’s conviction and sentence on direct appeal. Id. at 361. Johnston subsequently filed a motion for postconviction relief. The trial court denied Johnston’s postconviction motion after holding an evidentiary hearing on some of his claims. Johnston now appeals the denial of postconviction relief and has filed a habeas petition in this Court.

II. JOHNSTON’S POSTCONVICTION CLAIMS

On appeal from the denial of postconviction relief, Johnston raises ten issues: (A) counsel was ineffective for failing to adequately question juror Tracy Robinson concerning her prior misdemeanor and active capias; (B) counsel was ineffective for failing to include juror Robinson’s resulting nondisclosure in a motion for new trial; (C) the postconviction court erred in denying Johnston’s motion to interview juror Robinson; (D) counsel was ineffective for failing to file a motion to suppress Johnston’s statements to law enforcement; (E) counsel was ineffective for failing to call Diane Busch as a witness; (F) counsel was ineffective for failing to inform the trial court or jury that Johnston was using prescribed psychotropic medication at the time of trial; (G) counsel was ineffective for offering ill-considered and improper advice concerning Johnston’s need to testify; (H) counsel was ineffective for failing to present potential mitigators; (I) counsel was ineffective for failing to adequately challenge fingerprint evidence; (J) counsel was ineffective for failing to adequately challenge shoe tread evidence; (K) counsel was ineffective for failing to further question members of the venire concerning their exposure to pretrial publicity; (L) counsel was ineffective for failing to file a legally sufficient motion to disqualify the trial judge; and (M) cumulative error warrants relief. As explained below, we affirm the trial court’s denial of relief.

A. Failure to sufficiently question juror Robinson at voir dire

Johnston first claims that counsel was ineffective for failing to sufficiently question juror Tracy Robinson at voir dire, suggesting that a targeted “follow-up” question would have brought out additional facts not disclosed by Robinson. He also asserts that such information would have caused defense counsel to move to strike Robinson for cause or to peremptorily exclude Robinson. We disagree.

Juror Robinson, who served as the jury foreperson, was arrested for a drug-related offense during the penalty phase. Johnston, 841 So.2d at 355. Her arrest revealed that she pled nolo contendere approximately ten months before Johnston’s trial to misdemeanor charges of obstructing a police officer without violence. Id. During voir dire, juror Robinson did not reveal her prior plea and charges. Id. Robinson also failed to pay her court costs in that obstruction case; therefore, at the time of Johnston’s trial she was the subject of an active capias for civil contempt charges. Id. at 357. On direct appeal, Johnston argued that he was entitled to a new trial because of Robinson’s nondisclosure and active capias. Id. at 355-57. This Court rejected Johnston’s argument, holding that the capias did not statutorily disqualify Robinson and that Johnston had failed to raise the issue of Robinson’s nondisclosure with the trial court. Id. at 357-58.

Following the United State Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice:

First, 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. Second, 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.

Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

There is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689,104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).

In demonstrating prejudice, the defendant must show 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, 466 U.S. at 694, 104 S.Ct. 2052.

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

First, in this case, counsel was not ineffective for failing to sufficiently question juror Robinson regarding the capias. See Ferrell v. State, 29 So.3d 959, 976 (Fla.2010) (“Trial counsel cannot be deemed ineffective for failing to raise a meritless argument.”). As this Court held on direct appeal, Robinson’s civil contempt charge did not disqualify her from service under section 40.013(1), Florida Statutes (1999). Johnston, 841 So.2d at 356-57. Therefore, even if Robinson was aware of the capias and disclosed it upon questioning, such disclosure would not have provided a reason for Robinson to be removed for cause.

Second, counsel was not deficient because in keeping juror Robinson, defense counsel was following its strategy of seeking a young and minority jury. After conducting a mock trial and soliciting pretrial advice from a professional jury consultant, defense counsel decided to pursue a strategy of seating jurors matching the profile shared by juror Robinson. Defense counsel testified at the evidentiary hearing that Robinson’s prior misdemeanor and active capias would not have made her any less desirable to the defense. Counsel was not ineffective for pursuing this reasonable strategy. See Dillbeck v. State, 964 So.2d 95, 103 (Fla.2007) (“Dillbeck’s trial counsel adopted a reasonable trial strategy of avoiding a death sentence by attempting to seat jurors likely to recommend a life sentence.”).

Additionally, Johnston has failed to establish prejudice; given that defense counsel would not have moved to strike juror Robinson even if counsel had further questioned Robinson and she had disclosed her criminal history, our confidence in the outcome is not undermined. In fact, after learning of juror Robinson’s arrest, the defense verbally objected to her removal, expressing a preference for juror Robinson over the alternate juror.

Accordingly, because Johnston cannot demonstrate deficiency and prejudice, this ineffectiveness claim is without merit.

B. Failure to cite juror Robinson’s misconduct in motion for new trial

Johnston next claims that defense counsel was ineffective for failing to include in the motion for new trial a claim of juror misconduct based on juror Robinson’s nondisclosure. Because Johnston cannot demonstrate prejudice, we disagree.

This Court has explained that
[i]n determining whether a juror’s nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995) (citations omitted); see also Lugo v. State, 2 So.3d 1, 13 (2008).

Under the first prong of De La Rosa, Johnston must establish that the nondisclosed information is relevant and material to jury service in this case. De La Rosa, 659 So.2d at 241; see also Murray v. State, 3 So.3d 1108, 1121-22 (Fla. 2009). “There is no per se rule that involvement in any particular prior legal matter is or is not material.” Roberts v. Tejada, 814 So.2d 334, 345 (Fla.2002); see also State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 366 n. 2 (Fla.2002). Factors that may be considered in evaluating materiality include the remoteness in time of a juror’s prior exposure, the character and extensiveness of the experience, and the juror’s posture in the litigation. Roberts, 814 So.2d at 342.

But “materiality is only shown ‘where the omission of the information prevented counsel from making an informed judgment—which would in all likelihood have resulted in a peremptory challenge.’ ” Levine, 837 So.2d at 365 (internal quotation marks omitted) (quoting Roberts, 814 So.2d at 340). In other words, “[a] juror’s nondisclosure ... is considered material if it is so substantial that, if the facts were known, the defense likely would peremptorily exclude the juror from the jury.” Murray, 3 So.3d at 1121-22 (quoting McCauslin v. O’Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008)).

In Lugo, we held that a juror’s nondisclosure was not sufficiently material where the juror, sitting on a death penalty case, had been a victim of theft. Lugo, 2 So.3d at 14. In evaluating materiality, this Court observed that the juror’s “one-time isolated incident” did not resemble the murder victim’s “extended torture and captivity.” Id. Thus, we concluded that the sheer disparity between the experiences made the juror’s experience insufficiently material or relevant to service on that jury. Id.

Similarly, here, Johnston has failed to satisfy materiality under De La Rosa’s first prong. We find nothing about the character and extensiveness of Robinson’s own experience — she committed a nonviolent offense and then pled nolo contende-re — that suggests she would be biased against a defendant pleading not guilty in a death penalty case or against legal proceedings in general. See Lugo, 2 So.3d at 14; cf. De La Rosa, 659 So.2d at 241. The capias, furthermore, was not issued for a criminal offense. Johnston, 841 So.2d at 357. In fact, juror Robinson’s positioning as a prior defendant makes bias against Johnston especially unlikely. See Garnett v. McClellan, 767 So.2d 1229, 1231 (Fla. 5th DCA 2000) (finding that prior litigation experience was immaterial, in part, because the juror had been similarly situated to and was therefore more likely to be sympathetic to the complaining party).

Neither was there any evidence to suggest that here, “if the facts were known, the defense likely would [have] peremptorily exclude[d] the juror from the jury.” Murray, 3 So.3d at 1121-22 (quoting McCauslin, 985 So.2d at 561). In fact, as explained above, Robinson matched the profile of the optimal juror sought by the defense. Defense counsel also testified at the evidentiary hearing that in his experience, the substance of Robinson’s nondisclosure would have caused the prosecution — not the defense — to exclude or strike a juror.

Accordingly, because Johnston could not have demonstrated materiality, any motion for new trial based on Robinson’s disclosure would not have been successful. And because the claim lacked merit, counsel cannot be deemed ineffective for failing to raise it. Therefore, denial of this ineffectiveness claim is affirmed.

C. The postconviction court’s denial of motion for juror interview

Johnston claims that the postconviction trial court should have permitted him to conduct an interview of juror Robinson under Florida Rule of Criminal Procedure 3.575. Johnston told the postconviction court that he sought to question juror Robinson on her motives or intent during voir dire. We affirm the trial courts denial.

“A trial court’s decision on a motion to interview jurors is reviewed pursuant to an abuse of discretion standard.” Anderson v. State, 18 So.3d 501, 519 (Fla.2009). The trial court does not abuse its discretion in denying motions to interview jurors based on juror bias or misconduct where there is no indication of bias or misconduct in the record. See id.

Here, the trial court did not abuse its discretion in denying Johnston’s rule 3.575 motion because a juror interview was unnecessary given that the substance of Robinson’s nondisclosure was already known.

D. Johnston’s statement to law enforcement

Johnston argues that trial counsel was ineffective under Strickland for failing to move to suppress his statement made to law enforcement prior to issuance of a Miranda warning. Johnston also asserts that counsel should have moved to suppress the statement made after Johnston received a Miranda warning because the warning came in the middle of continual interrogation. We affirm denial of both arguments.

Upon seeing his picture on television, Johnston phoned police, drove himself to the police station, and made a statement to detectives he knew to be assigned to the case. He believed his statements would account for his whereabouts on the night of the murder and his use of the victim’s ATM card. At the postconviction eviden-tiary hearing, defense counsel explained that he wanted the jury to hear Johnston’s statements because they provided the only lawful explanation as to why Johnston possessed the victim’s ATM card.

Defense counsel’s explanation demonstrates that his decision not to move to suppress Johnston’s statements was a reasonable, strategic choice. See Occhicone, 768 So.2d at 1048; Laurrence v. State, 969 So.2d 294, 309 (Fla.2007). Short of calling Johnston to testify, there was no available evidence aside from the statement that could explain Johnston’s use of the ATM card.

Additionally, counsel cannot be deemed ineffective because any motion to suppress would have been meritless. See Kormondy v. State, 983 So.2d 418, 430 (Fla.2007); Fitzpatrick v. State, 900 So.2d 495, 511 (Fla.2005). Evidence presented at the postconviction evidentiary hearing demonstrated that Johnston’s initial statement was voluntary. Therefore, no Miranda warnings were required until Johnston was formally arrested. See Traylor v. State, 596 So.2d 957, 965-66 (Fla.1992). And, since Johnston was not in custody when he gave his initial statement, it follows that Johnston’s post-Miranda statement was obtained following a valid waiver. See Ault v. State, 866 So.2d 674, 682 (Fla.2003) (“[I]t is custodial interrogation that triggers the Miranda prophylactic.”). Therefore, a motion to suppress either statement would have been denied.

Because defense counsel made a reasonable strategic choice and because a motion to suppress would have lacked merit, Johnston cannot demonstrate the deficiency prong of Strickland. Therefore, we affirm the trial court’s denial of this ineffectiveness claim.

E. Failure to call Diane Busch as a witness

Johnston claims that counsel was ineffective for failing to investigate and call Diane Busch as a witness. We disagree.

Johnston proffered the testimony of his friend, Diane Busch, at the postconviction evidentiary hearing. She testified that in the months prior to the murder, Johnston paid for several social outings and did not appear to be in need of money. She also testified that when she was hospitalized for an illness, Johnston saved her life by being concerned for her and listening to her. However, Busch also testified that while she was still in recovery at the hospital, she saw something on television indicating law enforcement was looking for Johnston and reported him to the police. At the postconviction evidentiary hearing, her statement to the police was introduced to show that she found Johnston to be “possessive and obsessed” and verbally abusive to her family and hospital staff during her hospital stay. She told police that once she realized how Johnston was acting, she requested that he be kept from visiting her.

This Court has “consistently held that a trial counsel’s decision to not call certain witnesses to testify at trial can be reasonable trial strategy.” Everett v. State, 54 So.3d 464, 474 (Fla.2010); see also Hertz v. State, 941 So.2d 1031, 1039 (Fla.2006) (holding counsel not ineffective for failing to call a witness at the penalty phase when counsel decided that he “was not a good witness and not that helpful” during the guilt phase). “[I]t is reasonable for trial counsel to forego evidence that, if presented in mitigation, could damage a defendant’s chances with the jury.” Nelson v. State, 43 So.3d 20, 32 (Fla.2010); see also Reed v. State, 875 So.2d 415, 437 (Fla.2004) (“An ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.”).

The decision to not use Johnston’s friend as a witness at trial was clearly within “the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Given the slight value of her proffered testimony and the likelihood that it would have opened the door to the prosecution’s highly damaging cross-examination and impeachment evidence also presented to the postconviction court, trial counsel’s decision was reasonable. See Gaskin v. State, 822 So.2d 1243, 1248 (Fla.2002) (“Trial counsel will not be held to be deficient when she makes a reasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.”).

Accordingly, we affirm denial of this claim.

F. Johnston’s use of prescribed psychotropic medication at trial

Johnston claims that counsel was ineffective because counsel failed to inform the jury that Johnston was taking prescribed psychotropic medications at the time of trial. Johnston alleges that the medications rendered him incompetent and that when he testified at the penalty phase, the medications made him appear cold and callous. However, this ineffectiveness claim is without merit because Johnston has failed to demonstrate prejudice.

“In order to demonstrate prejudice from counsel’s failure to investigate his competency, a petitioner has to show that there exists ‘at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.’ ” Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir.1989) (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir.1988)), quoted in, Nelson v. State, 43 So.3d 20, 29 (Fla.2010).

A defense expert evaluated Johnston’s general competency several times throughout the trial and testified at the postconviction evidentiary hearing that he never saw any reason to question Johnston’s competence. Johnston’s defense counsel also testified that Johnston never appeared blunted or confused at any stage of the proceedings. With respect to Johnston’s testimony at the penalty phase, both the expert and defense counsel testified that Johnston appeared emotional and not cold or callous at the time he delivered his testimony.

Johnston has failed to demonstrate prejudice because there was no reasonable probability that an evaluation would have produced a finding of incompetence. In fact, the postconviction court determined that Johnston was not incompetent, confused, or blunted. This finding was supported by competent, substantial evidence in the form of testimony from an evaluating defense expert and from counsel. See Reed, 875 So.2d at 421-22; Zakrzewski v. State, 866 So.2d 688, 696 (Fla.2003) (where defendant’s and counsel’s testimony conflicted, upholding the trial court finding that counsel was credible).

Regarding the failure to request an instruction prior to Johnston’s penalty-phase testimony, because Johnston was not incompetent and did not appear cold or callous, the lack of instruction in this case does not undermine our confidence in the outcome. Thus, Johnston cannot demonstrate prejudice.

Accordingly, we affirm denial of this claim.

G. Johnston’s decision to testify at the penalty phase

We also affirm the denial of Johnston’s claims that defense counsel provided him with ill-considered and improper advice about the need to testify at the penalty phase. The trial court found after an evi-dentiary hearing that defense counsel in fact discouraged Johnston from testifying. The trial court’s finding was based on the competent substantial evidence provided by defense counsel’s evidentiary hearing testimony. See Roberts v. State, 840 So.2d 962, 973 (Fla.2002) (“Findings on the credibility of evidence by a lower court are not overturned if supported by competent, substantial evidence.”). The voluntariness of Johnston’s decision is underscored by the penalty-phase colloquy in which Johnston represented that he understood it was his decision whether to testify and that he wanted to testify. See Gonzalez v. State, 990 So.2d 1017, 1031-32 (Fla.2008). Accordingly, this claim does not warrant relief.

H. Potential mitigators

Next, Johnston claims that his trial counsel should have presented additional evidence of psychological issues that could have served as nonstatutory mitigation. Johnston also claims that trial counsel’s general theory of mitigation was incoherent. Because Johnston has failed to show a constitutional deficiency of counsel, we affirm the trial court’s denial of this claim.

Johnston’s expert, who testified during the postconviction evidentiary hearing, suggested that there should have been additional evidence of neurological and brain functioning impairment, the nexus between the impairment and Johnston’s criminal conduct, aggressive reactivity, reactive im-pulsivity and poor judgment, affective and anxiety disorders, familial dysfunctional factors, and attention deficit hyperactivity disorder (ADHD). However, other testimony from the postconviction evidentiary hearing revealed that prior to trial, defense counsel enlisted a mitigation specialist and reviewed Johnston’s medical, criminal, hospital, education, and employment records. The mitigation specialist contacted and interviewed Johnston and his family members, consulted with medical experts who eventually testified on behalf of Johnston, scheduled a PET scan, and communicated all information, including PET scan results, to defense counsel and an evaluating psychologist. Defense counsel secured a mental health evaluation, consulted with the evaluator and other medical experts, and at the penalty phase, elicited from four medical experts testimony that Johnston had frontal lobe brain damage and mental health problems. Johnston, 841 So.2d at 354-55.

As this Court explained in Pagan v. State, 29 So.3d 938 (Fla.2009),

“Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every ease.” Rather, in deciding whether trial counsel exercised reasonable professional judgment with regard to the investigation and presentation of mitigation evidence, a reviewing court must focus on whether the investigation resulting in counsel’s decision not to introduce certain mitigation evidence was itself reasonable. When making this assessment, “a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”

Id. at 949 (citations omitted) (quoting Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).

Here, the evidence presented to the postconviction court demonstrated that defense counsel did not fail to reasonably investigate mitigation. See Stewart v. State, 37 So.3d 243, 258 (Fla.2010) (holding that the defendant did not show deficiency or prejudice where “the mental health experts and lay witnesses who testified during the penalty phase conveyed the substance, though perhaps not all of the details, of the proposed mitigating circumstances to the penalty phase jury”). Substantial evidence of Johnston’s mental health was considered and presented by counsel at the penalty phase. In fact, the substance of almost all the information now presented by Johnston was presented to the jury. Therefore, counsel was not deficient in failing to present additional mitigation evidence. See Pagan, 29 So.3d at 950; Darling v. State, 966 So.2d 366, 378 (Fla.2007) (holding that trial counsel was not ineffective for failing to present cumulative and redundant psychiatric mitigation). And, to the extent that Johnston disagrees with the defense’s mental health expert and his decision not to diagnose Johnston with ADHD or any other condition, counsel was not deficient for relying on the prior psychiatric evaluation. See Darling, 966 So.2d at 377 (“[D]efense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.”).

Accordingly, this claim does not warrant relief.

I. Fingerprint evidence

Johnston claims that counsel was ineffective for failing to consult and present an expert who could testify as to the lack of reliability regarding latent fingerprint analysis. However, the expert presented by Johnston had no formal training in latent fingerprint analysis and did not examine the latent fingerprints in this case. Therefore, it is highly unlikely that this testimony would have been admissible.

Regardless of the admissibility of such testimony, defense counsel’s failure to present it does not undermine confidence in the outcome. Because the expert was neither qualified nor prepared to offer testimony on whether the latent fingerprint found on the victim’s car indeed matched Johnston’s fingerprint, the expert could not have called into question the State’s positive identification of Johnston. See Morris v. State, 931 So.2d 821, 830 (Fla.2006) (“[T]he failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt on the defendant’s guilt....” (quoting Ford v. State, 825 So.2d 358, 360-61 (Fla.2002))).

Accordingly, this ineffectiveness of counsel claim does not warrant relief.

J. Shoe tread evidence

Johnston claims that defense counsel was ineffective for failing to secure the most defense-friendly statistic on the number of shoes that could have matched the impressions found at the crime scene. However, counsel cannot be deemed deficient for failing to present evidence that does not exist. See, e.g., Clark v. State, 35 So.3d 880, 888 (Fla.2010) (“At the eviden-tiary hearing, Clark presented no evidence to support this claim. Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial.”). Johnston himself failed to obtain any evidence from the shoe manufacturer or from any other source to establish that the number of matching shoes was “millions,” as he claims, or that the affidavit presented at trial was otherwise incorrect. Therefore, we affirm denial of this claim.

K. Pretrial publicity

Johnston claims that trial counsel was ineffective for failing to sufficiently question members of the venire regarding their exposure to pretrial publicity. Because Johnston has not shown that the jurors were actually biased, our confidence in the outcome is not undermined. See Carratelli v. State, 961 So.2d 312, 324 (Fla.2007).

During voir dire, two eventual jurors indicated that they had heard about the case on the news. Trial counsel asked one of those jurors directly whether, given exposure to media reports, he could be fair and impartial. That juror responded that he could. While counsel did not directly question the other juror, the second juror gave no indication as to what he had heard on the news or whether he was at all influenced by the news report, even after defense counsel invited jurors to respond to his repeated explanation of the requirement that jurors must be fair and impartial.

In Carratelli we explained:

[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.
A juror is competent if he or she “can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial— i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record.

961 So.2d at 324 (citations omitted) (emphasis supplied) (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984)). To be entitled to relief, the defendant must show that the juror “was actually biased, not merely that there was doubt about her impartiality.” Owen v. State, 986 So.2d 534, 550 (Fla.2008).

In CamtelU, we held that the defendant failed to demonstrate actual bias where the challenged juror represented during voir dire that he could be fair, listen to the evidence, and follow the law. See 961 So.2d at 327. And in Lugo, we found that the defendant could not demonstrate actual bias where, after the trial court’s specific discussion on improper bias, the juror simply did not indicate that his ability to be impartial was affected by a prior experience. 2 So.3d at 16.

Johnston has failed to demonstrate actual bias. See id.; Owen, 986 So.2d at 550; Carratelli, 961 So.2d at 324. One juror, like the juror in Carratelli, indicated that he retained the ability to be impartial. The other juror, like the one in Lugo, simply declined to respond to specific discussion on bias during voir dire. There is no evidence that either juror was biased.

Because Johnston must show more than mere doubt about the juror’s impartiality and because there is no evidence of actual bias, we affirm denial of this claim. See Owen, 986 So.2d at 549-50.

L. Motion to disqualify

Johnston claims that counsel was ineffective for failing to file a legally sufficient motion to disqualify the trial judge. The record indicates that a motion to disqualify was filed and that the trial judge denied the motion. Nevertheless, Johnston asserts — without argument — that the postconviction trial court erred in summarily denying this claim because the claim required an evidentiary determination. However, Johnston waived this argument because he does not identify the alleged error, describe the factual determination he believes was necessary, or even set out the facts he believes are pertinent to the claim. See Cooper v. State, 856 So.2d 969, 977 n. 7 (Fla.2003) (“Cooper ... contend[s], without specific reference or supportive argument, that the ‘lower court erred in its summary denial of these claims.’ We find speculative, unsupported argument of this type to be improper, and deny relief based thereon.”); Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990) (“The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues.”).

III. PETITION FOR WRIT OF HABEAS CORPUS

Johnston raises three claims in his petition for writ of habeas corpus: (A) the sentence constitutes cruel and unusual punishment; (B) appellate counsel was ineffective for failing to claim fundamental error on the issue of juror Robinson’s nondisclosure; and (C) admission of Johnston’s statements to law enforcement violated his right against self-incrimination.

A. Cruel and unusual punishment

Johnston argues that his execution would violate the Eighth and Fourteenth Amendments as interpreted by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding the death penalty unconstitutional for mentally retarded defendants), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding the death penalty unconstitutional for defendants under age eighteen at the time of the crime). Johnston claims that he is a “profoundly mentally ill individual” and that evolving standards of decency prohibit his execution. He makes no claim of mental retardation.

However, this Court has consistently rejected similar claims. See Nixon v. State, 2 So.3d 137, 146 (Fla.2009) (declining to extend Atkins to mentally ill). Accordingly, relief is denied as to this claim.

B. Juror Tracy Robinson

Next, Johnston claims that his appellate counsel was ineffective for failing to frame the issue of juror Tracy Robinson’s nondisclosure as one involving fundamental error. We disagree.

Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency-falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000); Thompson v. State, 759 So.2d 650, 660 (Fla.2000).

In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069 (citing Knight v. State, 394 So.2d 997, 1001 (Fla.1981)). Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Id. (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)).

We deny relief for two reasons. First, Johnston’s claim is procedurally barred. Johnston’s argument that he is entitled to a new trial based on juror Robinson’s alleged misconduct was raised in direct appeal to this Court, Johnston, 841 So.2d at 357, and as the first issue in his rule 3.851 motion. Johnston is not permitted to camouflage the underlying argument as an ineffective assistance of appellate counsel claim. See Schoenwetter v. State, 46 So.3d 535, 562 (Fla.2010) (“Because every argument raised in this portion of appellant’s habeas petition either could have been or in fact was raised in his motion filed pursuant to rule 3.851, this claim is rejected as procedurally barred.”); Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) (“By raising the issue in the petition for writ of habeas corpus, in addition to the rule 3.850 petition, collateral counsel has accomplished nothing except to unnecessarily burden this Court with redundant material.”).

Second, even if the claim were not procedurally barred, it is meritless. Contrary to Johnston’s assertion, appellate counsel did raise on direct appeal the unpreserved issue of entitlement to a new trial based on juror misconduct. See Johnston, 841 So.2d at 357 (“Johnston next asserts that he is entitled to a new trial because juror Robinson deliberately failed to disclose that she pled nolo contendere to a misdemeanor charge within the past year.”). Inherent in this Court’s treatment of the claim on direct appeal was the determination that Johnston’s claim was not fundamental error. See Carratelli, 961 So.2d at 325 (“If an appellate court refuses to consider unpreserved error, then by definition the error could not have been fundamental.”).

Accordingly, we deny relief.

C. Right against self-incrimination

Finally, Johnston claims that his statements to law enforcement were admitted at trial in violation of Miranda. He also asserts, without argument, that appellate counsel was ineffective for failing to raise the issue on direct appeal.

Johnston’s claim is procedurally barred because each argument could have been, or was raised in Johnston’s postconviction motion. See Teffeteller v. Dugger, 734 So.2d 1009, 1025 (Fla.1999). In fact, Johnston’s argument that his statement was obtained in violation of his Miranda rights in his postconviction motion has been addressed above. See Hildwin v. Dugger, 654 So.2d 107, 111 (Fla.1995) (“Habeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised in a [postconviction] motion.”) (emphasis omitted).

Accordingly, we reject this claim.

IV. CONCLUSION

Based on the foregoing, we affirm the trial court’s order denying Johnston’s rale 3.851 motion, and we deny his habeas petition.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The trial court found the following aggrava-tors: (1) the defendant was previously convicted of violent felonies (great weight); (2) the crime was committed while Johnston was engaged in the commission of sexual battery and a kidnapping (great weight); (3) it was committed for pecuniary gain (great weight); and (4) it was especially heinous, atrocious, or cruel (great weight). Id. at 355 n. 3.

      . The trial court found that Johnston’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired and gave it moderate weight. Id. at 355 n. 4.

      .The trial court gave weight to the following nonstatutory mitigation: (1) the defendant has shown remorse (slight weight); (2) the defendant has a long history of mental illness (slight weight); (3) the defendant is capable of strong, loving relationships (slight weight); (4) the defendant excels in a prison environment (slight weight); (5) the defendant could contribute while in prison (slight weight); (6) the defendant served in the U.S. Air Force (slight weight); (7) during the time the defendant was on parole, he excelled (slight weight); (8) the defendant was a productive member of society after his release from prison (slight weight); (9) when notified that the police were looking for him, he turned himself in (slight weight); (10) the defendant demonstrated appropriate courtroom behavior during trial (slight weight); (11) "the defendant has tried to conform his behavior to normal time after time, but has been thwarted by his mental illness and brain dysfunction” (slight weight); (12) the defendant has the support of his mother and sister (slight weight); and (13) the defendant offered to be a kidney donor for his ex-wife (slight weight). Id. at 360 n. 13.

      . Because Johnston has failed to provide this Court with any basis for relief in any of his postconviction claims, Johnston is not entitled to relief based on cumulative error. See Bradley v. State, 33 So.3d 664, 684 (Fla.2010).

      . This Court's opinion on direct appeal fully set out the facts regarding juror Robinson. See id. at 355-56.

      . To the extent that Johnston alleges entitlement to a juror interview on the same grounds advanced on direct appeal — the issue of Robinson’s active capias — the trial court correctly denied an interview because the subject claim was procedurally barred. See, e.g., Green v. State, 975 So.2d 1090, 1106 (Fla.2008) ("Because the ... issue was raised on direct appeal, Green is not permitted to relitigate it on postconviction appeal.”).

      . To the extent that Johnston claims State v. Powell, 998 So.2d 531 (Fla.2008), re
        versed, - U.S. --, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010), dictates another result, his claim is meritless. As Johnston concedes, he was clearly advised of his Miranda rights.


source: Caselaw Access Project

author: LAGOA, J. SHEPHERD, J.,

license: Public Domain

text:
    Evaristo BELTRAN and Grisel Beltran, Appellants, v. Stuart R. KALB, assignee of Tops All Roofing and Building Products, Inc., and Sunset Home Partners, Inc., Appellees.
    No. 3D08-2688.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing Denied April 28, 2011.

      Gina Ollivier-Tyler, for appellants.
    Mark Evans Kass, Miami, for appellee Sunset Home Partners, Inc.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

Appellants, Grisel Beltran (“Grisel”) and her father, Evaristo Beltran (“Evaristo”), appeal the trial court’s order denying their motion to set aside/vacate the sale of property to the appellee, Sunset Home Partners, Inc. (“Sunset Home”). Because the property was exempt from forced sale for the payment of creditor’s claims pursuant to Florida’s homestead law, Art. X, § 4(a), Fla. Const., we hold that the trial court erred in denying the motion to set aside/vacate the sale. Accordingly, we reverse and remand with directions to vacate the sale.

I. FACTUAL AND PROCEDURAL HISTORY

The parties were previously before this Court in Beltran v. Kalb, 982 So.2d 24 (Fla. 3d DCA 2008). As set forth in that opinion, in January of 1990, the marriage of Evaristo and Carmen Beltran (“Carmen”) was dissolved by final judgment of dissolution of marriage. The final judgment of dissolution incorporated by reference the marital settlement agreement entered into between Carmen and Evaristo, and the final judgment was recorded in the public records.

During their marriage, Carmen and Evaristo owned a home located at 3091 N.W. 97 Street (the “property”), which all parties agree was their homestead. Pursuant to the terms of the marital settlement agreement, Carmen retained “sole and exclusive occupancy” of the property. Additionally, the marital settlement agreement required Evaristo to deliver a quit claim deed to Carmen conveying his interest in the property to her. Evaristo did not execute the quit claim deed at the time of the dissolution, despite the requirement of the marital settlement agreement. Carmen, however, complied with the terms of the marital settlement agreement, paid all taxes and insurance on the home, and in fact paid off the mortgage.

In May 1990, subsequent to the parties’ dissolution of marriage, Tops All Roofing and Building Products, Inc., obtained a final judgment for $10,502.83 against Evar-isto to recover for a debt owed by Evaris-to’s roofing company. The judgment was recorded in June 1990 and re-recorded in January 2007.

In February 2007, Carmen passed away, and Evaristo quit-claimed his interest in the property to Grisel in April 2007. In March 2007, a sheriffs levy was recorded on the property, and in May 2007, Sunset Home purchased Evaristo’s interest in the property at a sheriffs sale for $36,000.

Evaristo filed a motion to set aside/vacate the sale, which the trial court denied. In Beltran, 982 So.2d at 26, this Court reversed the trial court’s denial, and found that Evaristo and Grisel had been denied due process, in part because “Evaristo Beltran was not given notice of the sale or of the proceedings against the house.” We remanded the cause for an evidentiary hearing specifically to give Evaristo and Grisel “a reasonable opportunity to be heard on the homestead and other defenses.” Id.

On remand, the trial court again denied the motion to set aside/vacate the sale finding that Grisel had “failed to carry her burden of proof by offering testimony to demonstrate the decedent (Carmen Bel-tran) was the head of a household for homestead exemption.” The trial court made no other findings in support of its denial. This appeal ensued.

II. ANALYSIS

We review the denial of a motion to set aside/vacate a sale for abuse of discretion. See Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611 (Fla. 4th DCA 2008), review denied, 996 So.2d 211 (Fla.2008); Gulf State Bank v. Blue Skies, Inc., of Ga., 639 So.2d 161 (Fla. 1st DCA 1994). However, review of whether the trial court applied “the correct legal rule is de novo, because application of an incorrect rule is erroneous as a matter of law.” Vaughn v. State, 711 So.2d 64, 66 (Fla. 1st DCA 1998).

1. Carmen’s interest in the property

Prior to 1985, the homestead protection from forced sale benefitted only owners who were the “head of a family.” See art. X, § 4, Fla. Const. (1983). Under that standard, actual “family” occupancy of the property and the intention to remain there and make it the home of the family were essential to the homestead right. See Edward Leasing Corp. v. Uhlig, 652 F.Supp. 1409, 1412 (S.D.Fla.1987). A family relationship was met by “(1) a legal duty to maintain arising out of the family relationship and/or (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge.” Holden v. Estate of Gardner, 404 So.2d 1169, 1172 (Fla. 1st DCA 1981), approved, 420 So.2d 1082 (Fla.1982).

In 1984, the Florida Constitution was amended and the phrase “head of a family” was changed to “a natural person.” Thus, article X, section 4(a), now reads in pertinent part: “There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon ... the following property owned by a natural person: (1) a homestead .... ” (emphasis added). The class of persons who could take advantage of the homestead protection was thereby expanded. See Pub. Health Trust v. Lopez, 531 So.2d 946, 948 (Fla.1988). As such, the trial court's finding that it was necessary to prove that Carmen was the head of a household in order to prove homestead was erroneous.

At the hearing on the motion to set aside/vacate sale, the trial court asked Evaristo questions clearly indicating that the trial court was concerned with determining who supported Carmen while she lived in the home, and whether Carmen and Grisel lived there together, as a “family unit.” Neither factor is relevant in determining whether the home was Carmen’s homestead. Rather, it must be shown that a natural person, in this case Carmen, intended to make the property her homestead and actually maintained the property as her principal residence. See In re Alexander, 346 B.R. 546, 548 (Bankr.M.D.Fla.2006); In re Lee, 223 B.R. 594, 598 (Bankr.M.D.Fla.1998) (“Homestead status is established by the actual intention to live permanently in a place coupled with actual use and occupancy.”). Here, Evaristo testified that Carmen continued to live at the property after he left. As proof of homestead, Evaristo and Grisel presented the Petition' to Determine Homestead status that they had filed in probate court, which had as an attachment proof of the property’s homestead tax exemption. The fact that property is homestead for ad valorem tax exemption is evidence as to the issue of a claimant’s intent that the property is also homestead. See Pierrepont v. Humphreys (In re Estate of Newman), 413 So.2d 140 (Fla. 5th DCA 1982); In re McClain, 281 B.R. 769 (Bankr.M.D.Fla.2002).

Additionally, Sunset Home did not dispute that Carmen lived in the home continuously from the time of the dissolution, that Carmen made the mortgage, insurance, and tax payments on the home from the time of the dissolution, and that the home was Carmen’s address at the time of her death. Sunset Home’s only argument—advanced by counsel without evidence—was that Carmen may also have had a tenant at the property. Even if true, this would not affect homestead status. Because the trial court failed to apply the correct standard in determining that Carmen’s interest in the property was not her homestead, we reverse the trial court’s denial. Moreover, given these uncontro-verted facts, we conclude that the evidence presented below was sufficient to establish that Carmen’s interest in the property constituted her homestead.

2. Evaristo’s interest in the property

We also find that the trial court erred in failing to determine the nature of Evaristo’s interest in the property. Because the final judgment did not operate as a transfer of Evaristo’s interest in the home to Carmen, and Evaristo never quit-claimed his interest in the property to Carmen, the parties continued to own the home as tenants in common. See Johnson v. Johnson, 902 So.2d 241 (Fla. 1st DCA 2005); Margolis v. Margolis, 843 So.2d 938 (Fla. 3d DCA 1977). If Evaristo’s interest in the property maintained its homestead status after the dissolution of marriage, no lien could be enforceable against the property. See Nationwide Fin. Corp. v. Thompson, 400 So.2d 559, 561 (Fla. 1st DCA 1981) (“The material time for determining the priority of a lien over a claim of homestead exemption is the time the lien would have attached if homestead exemption were not applicable.”).

As article X, section 4(a)(1) provides, the homestead exemption is “limited to the residence of the owner or the owner’s family.” (emphasis added). Accordingly, “the Florida Constitution does not require that the owner claiming homestead exemption reside on the property; it is sufficient that the owner’s family reside on the property.” Nationwide, 400 So.2d at 561. The fact that exclusive use and possession of the marital residence is awarded to the wife in a dissolution action does not extinguish the husband’s homestead. Coy v. Mango Bay Prop. & Invs., Inc., 963 So.2d 873, 878 (Fla. 4th DCA 2007); Cain v. Cain, 549 So.2d 1161, 1163 (Fla. 4th DCA 1989). Homestead status continues until the homestead is abandoned or alienated in the manner provided by law. Cain, 549 So.2d at 1163. In order to show abandonment, “it must be shown that both the owner and the owner’s family abandoned the property.” Nationwide, 400 So.2d at 561; see also In re Harrison, 236 B.R. 788, 789-90 (Bankr.M.D.Fla.1999); Cain, 549 So.2d at 1163.

The record shows that Evaristo left the house pursuant to the terms of the final judgment of dissolution awarding possession of the property to Carmen. It is undisputed that after the divorce Carmen and Grisel continued to live on the property. Moreover, Evaristo supported his daughter financially. There was no showing below that Evaristo and his family abandoned the property. Because Evaris-to’s interest in the property maintained its homestead character at all times and was not abandoned, Tops All Roofing’s judgment could not be enforceable against his interest.

Accordingly, because the evidence below established that both Carmen and Evaristo each held a homestead interest in the property, we reverse the order and remand with directions to vacate the sale.

Reversed and remanded.

SHEPHERD, J.,

specially concurring.

The only salient fact necessary to the resolution of this case is the undisputed fact that from January 2, 1990, the date the Final Judgment of Dissolution of the Beltrans’ marriage was entered, to April 6, 2007, the day Evaristo quitclaimed his interest in the former marital residence to Grisel, Grisel resided on the property. This is so based upon the plain language of article X, section 4(a)(1) of the Florida Constitution, which states:

§ 4. Homestead; exemptions
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family.

Grisel, Evaristo’s daughter, is a member of his family. See Cain v. Cain, 549 So.2d 1161, 1163 (Fla. 4th DCA 1989). So long as Evaristo owned any interest in the former marital home and Grisel resided in it, the interest he owned was exempt from execution and levy (forced sale) to satisfy the judgment obtained by Tops All Roofing. See Wilson v. Fla. Nat’l Bank & Trust Co. at Miami, 64 So.2d 309, 313 (Fla.1953) (“It is well established in this jurisdiction that once property acquires the status of a homestead such characteristic continues to attach to it unless the homestead be abandoned or alienated in the manner provided by law.” (citing Clark v. Cox, 80 Fla. 63, 85 So. 173, 174 (1920))). Grisel and Evaristo each have an independent right to assert the benefit of the forced sale provision in this case, and Gri-sel’s right cannot be compromised by any action by her father. See Cain, 549 So.2d at 1163 (“To show abandonment, both the owner and his family must have abandoned the property.”) (emphasis added); Nationwide Fin. Corp. of Colo. v. Thompson, 400 So.2d 559, 561 (Fla. 1st DCA 1981). Thus, the moment Evaristo quit-claimed his interest in the property to his daughter, the judgment debtor, Tops All Roofing, no longer held a leviable interest in the subject property. The will of the people, as expressed by them in their constitution for more than 140 years, was fulfilled — the property was preserved for the benefit of the family.

On the strength of this reasoning, I join in the panel decision.

      . Carmen is Grisel's mother.

      . The trial court declined to accept into evidence the petition with attachments.

      . Nor is Grisel's age (she passed from childhood into adulthood during the period), or financial support from her father pertinent to the issue before us. See Pierrepont v. Humphreys (In re Estate of Newman), 413 So.2d 140, 142 (Fla. 5th DCA 1982) ("The homestead character of a piece of property is not created by, nor is it dependent upon, any general or specific mental intent on the part of the owner to create or maintain a certain piece of property as his homestead, but arises and attaches from the mere existence of certain facts in combination of place and time.”).


author: BENTON, C.J.

text:
    Christine PESTA, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D09-6489.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Rehearing Denied June 23, 2011.

      Matthew O. Ward, Tallahassee and Gloria W. Fletcher, Gainesville, Appellant.
    Jennifer Parker, General Counsel, and Jill Bennett, Assistant General Counsel, Tallahassee, for Appellee Department of Corrections; Sharon E. Cromar, Staff Attorney, Tallahassee, for Public Employees Relations Commission.
   BENTON, C.J.

Christine Pesta appeals a decision of the Public Employees Relations Commission (PERC) dismissing her career service appeal on grounds PERC lacked subject matter jurisdiction. Because PERC does have jurisdiction to decide whether Ms. Pesta’s employer, the Department of Corrections (DOC), had cause to terminate her employment, we reverse and remand for further proceedings.

Ms. Pesta began as a career service employee with DOC in 1996, and was promoted to Correctional Officer Captain in July of 2008. On May 12, 2009, while she was still on probationary status as captain, DOC issued an “Extraordinary Dismissal Letter” terminating her employment at DOC that day: DOC alleged that she had “engaged in inappropriate and unlawful conduct by participating in the unnecessary use of force” on an inmate by allowing him to be sprayed with chemical agents “even though he was not creating a disturbance at the time.” The letter further alleged that Ms. Pesta falsely maintained in an incident report that the chemical agents were applied to quell a disturbance, and provided false testimony about the incident during an interview with the Inspector General’s Office. Finally, the letter informed her that, as a career service employee with permanent status, she had the right to appeal DOC’s decision to PERC.

Ms. Pesta was also charged criminally. While battery and perjury charges were tried, proceedings at PERC were stayed. After her acquittal on both criminal charges, DOC filed with PERC a motion to dismiss for lack of subject matter jurisdiction, arguing that a career service employee may appeal her dismissal to PERC only if she has been in her current position for at least a year. Ms. Pesta countered that, as a factual matter, DOC had no cause to dismiss her and that, even if DOC did not need eause to remove her as a cáptain (because she was still on probationary status as a captain), she was entitled, as a permanent career service employee, to other employment with the agency. On the purported authority of one of its earlier decisions, Alford v. Department of State, Case No. CS-2009-181 (Fla. PERC Sept. 25, 2009), and section 110.227, Florida Statues (2009), PERC dismissed the appeal on grounds it had no jurisdiction. But see Bourgault v. Dep’t of Carr., Case No. CS-2009-148 (Fla. PERC Aug. 10, 2009).

“Whether a lower tribunal had subject matter jurisdiction is a question of law which we review de novo.” Dep’t of Revenue ex rel. Smith v. Selles, 47 So.3d 916, 918 (Fla. 1st DCA 2010). PERC and other “ ‘[administrative agencies are creatures of statute and have only such powers as statutes confer. State ex rel. Greenb[e]rg v. Florida State Bd. of Dentistry, 297 So.2d 628, 634 (Fla. 1st DCA 1974).’ ” Fla. Elections Comm’n v. Davis, 44 So.3d 1211, 1215 (Fla. 1st DCA 2010) (quoting Fiat Motors of N. Am. v. Calvin, 356 So.2d 908, 909 (Fla. 1st DCA 1978)). In the present case, subject matter jurisdiction is a question of law that requires construction of more than one statute.

PERC “or its designated agent shall hear appeals arising out of any suspension, reduction in pay, demotion, or dismissal of any permanent employee in the State Career Service System in the manner provided in s. 110.227.” § 447.207(8), Fla. Stat. (2009). Such appeals often turn on whether the employing agency can, as a factual matter, prove cause for adverse employment action. At the time of her dismissal, Ms. Pesta was a career service employee who had not, however, completed a one-year probationary period in her then current position. Under section 110.227(1), Florida Statutes (2009), “[a]ny employee who has satisfactorily completed at least a 1-year probationary period in his or her current position may be suspended or dismissed only for cause.” In providing that an employee who has completed the probationary period can appeal a dismissal to PERC, section 110.227(5)(a), Florida Statutes (2009), implies that, until a probationary employee completes the probationary period, the employee may be dismissed from the position without cause and without a PERC hearing.

But section 110.227(8), Florida Statutes (2009), which became effective on January 1, 2009, see Ch. 2008-126, § 1, at 1286-87, Laws of Fla., grants employees like Ms. Pesta the following protections:

A career service employee who is serving a probationary period in a position to which he or she has been promoted may be removed from that promotional position at any time during the probationary period but must be returned to his or her former position, or a comparable position, if such a position is vacant. If such a position is not available, before dismissal, the agency shall make a reasonable effort to retain the employee in another vacant position. This subsection does not apply to terminations for cause as described in subsection (1), nor does it create a right to “bump” an employee from an occupied position as described in paragraph (2)(a).

This section confers no rights on employees terminated for cause, but here Ms. Pesta denies DOC had cause, as a matter of fact, to dismiss her from employment. She asserts entitlement to a hearing on the question.

Entitlement to a hearing at PERC when an employing agency dismisses permanent career service employees from the agency’s employment is not in doubt. Under section 110.227(8), moreover, a career service employee on probationary status only because of a recent promotion has the right to return to his or her former position (or to a comparable position), where the agency has such a position available. Restored to his or her former position (or to a comparable position), a permanent career service employee would unquestionably be able to appeal any dismissal from agency employment to PERC. See § 447.207(8), Fla. Stat. (2009). PERC also has jurisdiction when a permanent career service employee is terminated, even though the employee is on probation because of a promotion, unless termination has been for cause. Like a judicial tribunal, an administrative tribunal has jurisdiction to determine its own jurisdiction. See, e.g., Tabb ex rel. Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 880 So.2d 1253, 1256-57 (Fla. 1st DCA 2004).

Where an employing agency terminates an employee serving a probationary promotional period, without cause, and does not restore the employee to his or her former position (or the equivalent), the employee has effectively been dismissed not only from the former position but also from the career service altogether. Such an employee has hearing rights at PERC. If PERC finds that the employee was in fact terminated for cause, that is the end of the inquiry. PERC loses jurisdiction and the dismissal stands.

But where, as here, an employee serving a probationary period in a promotional position disputes that she was terminated from DOC for cause, and asserts that there was a position available to which she should have been returned (or transferred) as required by section 110.227(8), the employee is entitled to a hearing at which the question of whether the agency had cause for the termination can be decided. Otherwise an employing agency could strip all permanent career service employees of PERC hearing rights by the simple expedient of promoting them from one career service position to another on one day and firing them from the agency the next.

Reversed and remanded.

PADOVANO and WETHERELL, JJ., concur.


author: MARSTILLER, J. WOLF, J.,

text:
    Walter Thomas JAGODINSKI and Wife, Donna Sue Sessoms, Appellants, v. WASHINGTON MUTUAL BANK, J. Michael Jones a/k/a John M. Jones, Appellees.
    No. 1D10-2746.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Rehearing Denied June 17, 2011.

      Douglas L. Smith and Michael J. Hau-versburk of Burke Blue Hutchison Walters & Smith, P.A., Panama City, for Appellants.
    Jeffrey T. Kuntz and Thomas H. Loffre-do of Gray Robinson, P.A., Fort Lauder-dale, for Appellees.
   MARSTILLER, J.

The Jagodinskis successfully bid $300,000 in a mortgage foreclosure sale of a condominium in Bay County, Florida, and received a certificate of sale. After the Clerk of Court (“Clerk”) issued the certificate, unsuccessful bidder Eddie Gaw wrote a letter to the court asserting irregularities in the sale. Mr. Gaw, the third highest bidder with a bid of $250,000, alleged that the Jagodinskis did not “immediately” post the required five percent deposit and did so in a form other than cash or a cashier’s check, as specified on the Clerk’s web site. The trial court agreed and entered an order granting Mr. Gaw’s objection to the foreclosure sale, setting the sale aside, and ordering a new sale. The Jagodinskis argue Mr. Gaw lacked standing to challenge the sale on the bases asserted, his letter did not constitute an objection, and even if Mr. Gaw could rightly challenge the sale, the court abused its discretion by vacating the sale for the reasons Mr. Gaw advanced. We find the dispositive issue is Mr. Gaw’s standing and conclude he lacked standing to object to the foreclosure sale based on the timing and form of the Jagodinskis’ deposit.

A bidder in a foreclosure sale, who is not party to the foreclosure proceedings, generally only has standing to challenge the validity of a particular bid. Heilman v. .Suburban Coastal Corp., 506 So.2d 1088 (Fla. 4th DCA 1987). In that instance, the bidder’s objection is limited to whether the challenged bid “exceeds his own and whether payment in accordance with the successful bid is forthcoming.” Id. Beyond these narrow grounds, a non-party bidder can only challenge the foreclosure sale if there has been fraud in the bidding process. Id. Absent such fraud, “a stranger to the foreclosure action does not, merely by entering a bid, acquire standing to complain of supposed defects in the foreclosure proceedings or in the state of the title to the property.” Id.

In REO Properties Corporation v. Binder, 946 So.2d 572 (Fla. 2d DCA 2006), a case remarkably similar to this one, the losing bidder in a foreclosure sale sought to vacate the sale because the winning bidder made payment to the clerk of court in some form other than official check, money order or cash, pursuant to the clerk’s published rules. Id. at 574. The court held that the losing bidder had no standing to challenge the form of the winner’s payment. Id. Relying on Heilman, the court reasoned that the bidder “did not allege that any fraud had occurred in the bidding process” or that the winner’s “payment to the clerk was not ‘forthcoming.’ Thus, his objection was not one that he had standing to make.” Id. Like the losing bidder in that case, Mr. Gaw asserted neither fraud in the bidding process nor that the Jagodinskis’ payment of the deposit or sale price was not forthcoming. Rather, he challenged the Clerk’s acceptance of a check from the Jagodinskis’ law firm in lieu of one of the required forms of payment and the Jagodinskis’ approximately three-hour delay in paying the deposit. Under Heilman and Binder, Mr. Gaw, as the losing bidder who was not a party to the foreclosure action, did not have standing to raise these challenges. For that reason, the trial court erred in setting aside the sale and ordering a new one based on Mr. Gaw’s objections.

Accordingly, we reverse the order vacating the foreclosure sale to the Jagodinskis, and remand to the trial court to vacate the subsequent sale to Appellee, Washington Mutual Bank, and reinstate the certificate of sale the Clerk issued to the Jagodinskis.

REVERSED and REMANDED with directions.

HAWKES, J., concurs; WOLF, J., dissents with opinion.

WOLF, J.,

dissenting.

The majority reverses the judgment of the trial court vacating the foreclosure sale on the basis that appellee lacked standing. Appellee presented evidence, which the trial court accepted, that demonstrated an inequity in the sales procedure which placed him at a material disadvantage as compared to the winning bidder. This inequity did not allow him to compete fairly for the property. Under these circumstances, I cannot agree that appellee lacked standing, especially in light of longstanding principles in this state providing trial courts with discretion to set aside judicial sales when equity dictates.

In this case, the trial court specifically determined that the Bay County Clerk of Courts website contained the following statement: “Immediately after the final bid is made and accepted, the successful bidder must post with the Clerk a deposit equal to 5% of the final bid in cash or cashier’s check.” Further, the court concluded:

testimony established that these instructions were repeated by a representative of the Clerk’s office and that some of the bidders in attendance understood “immediately” meant at the time of sale and not after a delay of hours. The Gaws appeared with a cashier’s check in hand prepared to bid up to $250,000, and when their $250,000 bid was exceeded, the Gaws, abiding by the directions of the Bay County Clerk of Court’s Office, ceased bidding. The court finds that the process of allowing the winning bidder to have his representative leave the courthouse and obtain the funds approximately three hours later was, in this sale, contrary to the announced procedure and placed bidders, such as the Gaws, at a disadvantage.

Thus, by following the announced procedures, appellee was limited in his bid by the actual amount he had available at the bid site. The winning bidder did not face such limitation. As such, appellee demonstrated standing by establishing he suffered a substantial injury as a result of this procedural irregularity.

As far back as 1929, the Florida Supreme Court has acknowledged the discretion of a trial court to set aside an inequitable foreclosure sale, stating:

On the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.

Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929) (citations omitted). This same principle has survived throughout the years and has been applied to parties who had no previous ownership rights in the subject property. See Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966) (recognizing a judicial sale which occurred at an unadvertised location could be set aside based on the grounds of inadequacy of sale and an irregularity in the conduct of sale); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002) (recognizing longstanding principle that a sale may be set aside when the foregoing grounds are established); Action Realty & Invs., Inc. v. Grandison, 930 So.2d 674 (Fla. 4th DCA 2006) (allowing winning bidder to challenge the trial court’s setting aside of the judicial sale based on its finding the property had been sold prior to the auction to a third party).

Furthermore, this court echoed that same commitment in Gulf State Bank v. Blue Skies, Inc. of Ga., 639 So.2d 161, 162 (Fla. 1st DCA 1994), stating:

Upon a showing that a judicial sale resulted from any mistake, accident, surprise, misconduct, fraud or irregularity in the conduct of the sale, the circuit court, in the exercise of its equity jurisdiction, has discretion to set aside the judicial sale in the exercise of its right and duty to supervise the process and “protect parties from all fraud, unfairness, and imposition” therein.

(Citations omitted).

In reversing, the majority relies on two opinions from our sister courts, Heilman v. Suburban Coastal Corp., 506 So.2d 1088 (Fla. 4th DCA 1987) and REO Properties Corp. v. Binder, 946 So.2d 572 (Fla. 2d DCA 2006). To the extent these cases can be read to limit standing and thereby prohibit a party materially injured by a substantial irregularity in the sales procedure from bringing an action to set aside the sale, I would decline to follow them. However, both are distinguishable from the facts currently before this court.

Specifically, in Heilman, appellant, the losing bidder, complained of the Clerk’s practice of allowing individuals who were not licensed attorneys to act as agents for bidders. 506 So.2d at 1089. Appellant alleged that the sale could only be conducted by the individual or the individual’s licensed attorney because judicial sales were a judicial proceeding. Id. The Fourth District rejected this reasoning, finding the judicial sale was ancillary to judicial proceedings and more akin to a ministerial act which allowed any authorized agent of a principal to bid. Id. In the alternative, the court concluded Heil-man did not have standing to complain about another’s unauthorized practice of law. Id. at 1090. As one last alternative for affirmance, the court noted that, while a bidder has standing to complain because “he has a direct financial interest by virtue of his own bid,” that interest was limited only to “whether the amount of the bid exceeds his own and whether payment in accordance with the successful bid is forthcoming.” Id. at 1095. The opinion cited no authority for this “rule” which cannot be reconciled with the general proposition that a party demonstrates standing by alleging that he or she has suffered or will suffer substantial injury. Alachua County v. Scharps, 855 So.2d 195, 199 (Fla. 1st DCA2003).

Regardless of the opinion’s limited view of standing, the case is distinguishable from the case at bar because Heilman was unable to demonstrate he was unfairly harmed in the bidding process. As noted in Gulf State, the discretion given a trial court to set aside a judicial sale is given to “protect parties from all fraud, unfairness, and imposition.” 689 So.2d at 162 (citation omitted). Heilman could not demonstrate the bidding of an agent rather than a licensed attorney, or the individual bidder, constituted an unfairness to him in the bidding process and resulted in his inequitable loss of the property.

The majority also relies on REO, 946 So.2d 572. In REO, the unsuccessful bidder challenged the sale alleging the Clerk had taken a personal check from REO in violation of its own rules. Id. at 574. The facts of that opinion reveal that REO was initially the successful bidder, but the property was placed back up for bid after the Clerk’s office refused to take REO’s personal check. Id. Appellee was the successful bidder at the second auction; however, before he could pay for the property, the Clerk’s office informed him it had decided to accept REO’s check and the higher bid price. Id. The trial court set aside the sale following an evidentiary hearing, and the Second District reversed. Id. In reversing, the court concluded the Clerk did not have a policy against taking personal checks and the notice of sale did not inform potential bidders of this limitation. Id. at 575. Therefore, the Second District found no merit to appellee’s argument that there was a defect in the process. Id. Thus, there was no evidence that an irregularity in the bidding process precluded the appellee from submitting a higher bid, and the opinion is distinguishable from the instant case.

As noted above, Heilman does not cite any authority for its limited view of standing in the judicial sales context. Furthermore, Heilman and the majority’s narrow application of standing conflicts with both supreme court precedent allowing challenges to judicial sales in certain equitable circumstances and the general rules of standing.

Appellee alleged below that he lost the opportunity to continue bidding due to unfairness in the judicial sales process, and the trial court agreed. Clearly, the supreme court and this court have established a party has the right to seek redress following a judicial sale when he or she can make “a showing that [the] judicial sale resulted from ... mistake, accident, surprise, misconduct, fraud or irregularity in the conduct of the sale ” and the setting aside of the sale is necessary to “protect parties from all fraud, unfairness, and imposition.” Gulf State, 639 So.2d at 162 (citation omitted) (emphasis added). The majority, in reversing due to its reliance on such a severe view of standing, without citing binding authority of any kind, directly contravenes this commitment to fairness in the judicial sale process. Accordingly, I dissent.


text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Russell BOURGAULT, Jr., Appellee.
    No. 1D09-4455.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Rehearing Denied June 23, 2011.
    Jennifer Parker, General Counsel, and Jill Bennett, Assistant General Counsel, Tallahassee, Appellant.
    Mindy K Raymaker, Assistant General Counsel, Department of Management Services, Tallahassee, for Amicus Curiae Department of Management Services in support of Appellant.
    Joseph J. Mancini of Yates & Mancini, LLC, Fort Pierce, for Appellee; Carlos R. Lopez, Staff Attorney, Tallahassee, for Public Employees Relations Commission.
   PER CURIAM.

AFFIRMED. See Pesta v. Dep’t of Corr., 63 So.3d 788 (Fla. 1st DCA 2011).

BENTON, C.J., PADOVANO, and WETHERELL, JJ., concur.


author: PER CURIAM. WOLF, J.,

text:
    UNITED AIRLINES and Gallager Bassett Services, Inc., Appellants, v. Kazuo NEMOTO, Appellee.
    No. 1D10-2767.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Rehearing Denied June 22, 2011.
    Patrick John McGinley of the Law Office of Patrick John McGinley, P.A., Winter Park, for Appellants.
    Monte R. Shoemaker of Shoemaker & Shoemaker, P.A., Altamonte Springs, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals two orders of the Judge of Compensation Claims (JCC). The first, a nonfinal order entered December 4, 2009, rejected the E/C’s defense that the parties had settled the case. In the second order, entered May 11, 2010, the JCC awarded Claimant attorney’s fees for prevailing on a claim filed prior to the settlement agreement; the JCC again rejected the E/C’s defense that the parties had agreed to settle the case. In particular, the JCC found that a letter dated September 25, 2008, from Claimant’s counsel to E/C’s counsel, described “a conditional agreement to settle ... because of contingencies contained in the letter.” A review of the plain language of the letter indicates, however, that it does not objectively create any contingencies. Accordingly, because the parties had indeed reached a settlement agreement, we quash the 2010 order, reverse the 2009 order, and remand for approval of fees associated with the settlement agreement.

REVERSED and REMANDED for proceedings in accord with this opinion.

DAVIS and HAWKES, JJ., concur; WOLF, J., dissents with opinion.

WOLF, J.,

dissenting.

The decision and factual determinations of the JCC should be affirmed. The E/C, in its trial memorandum, argued the parties had negotiated a washout settlement, confirmed by letter dated September 25, 2008, and sought enforcement of the agreement. The letter from Claimant’s attorney to the E/C’s attorney states, in its entirety:

This is to confirm today’s settlement discussions which resulted in the following agreement: $130,000 to settle with Mr. Nemoto and my firm, not to include any past due fees to Mr. Fisher. Mr. Nemoto will retire for medical reasons and will not seek re-employment with United Airlines. No vested Employee benefits will be affected by this settlement. Employee believes no MSA [Medicare Set-Aside] is necessary as he has no intention of becoming a Medicare recipient. The [E/C] is already in the process of obtaining an MSA allocation. Therefore, this settlement is not final until the parties have reviewed and approved any MSA requirement and my client and I have approved of all language in all settlement documents that United requires Mr. Nemoto to sign. The settlement documents must be filed with the Judge by November 30, 2008. Medical benefits remain available to Mr. Nemoto until JCC approval.
Please be advised, that should the settlement documents not be submitted to the Judge by November 30, 2008, we will proceed to the Judge for a ruling on the pending Petitions. Mr. Nemoto wants to make it clear that if the judge has not been provided with the settlement documents for approval by November 30, 2008, THERE WILL BE NO FURTHER NEGOTIATIONS.

(Emphasis added).

The MSA documents were not presented to the Claimant for approval. Upon explaining his ruling, the JCC explained that the E/C had not satisfied the burden of proof to enforce the settlement because the plain language of the letter showed that the settlement would not be final until the Claimant’s attorney had reviewed and approved any MSA requirement. The JCC further observed that the Claimant had elected to rescind the agreement because, even up to the date of this hearing, no MSA requirement had been given to the parties.

On de novo review, the JCC’s understanding of the agreement was not error. Despite the absence of the word “contingency,” the plain language of the letter makes the contract contingent on Claimant’s acceptance of an MSA. Similar to the wording in the contract reviewed in McLean v. McLane Grocery Dist., 41 So.3d 334 (Fla. 1st DCA 2010), which said “ ‘[t]his agreement shall have no force and effect ... until ... the [JCC] enters the aforementioned Order,’ ” the language here that “this settlement is not final until the parties have reviewed and approved any MSA requirement,” indicates the parties had not reached a settlement until the MSA issue was resolved. The court should not attempt to impose a settlement upon a party contrary to the intent expressly stated in the agreement. See Jones v. Miami-Dade Cmty. Coll., 983 So.2d 1221 (Fla. 1st DCA 2006). Thus, I would affirm.


author: DAVIS, J.

text:
    Leonard J. ACCARDO and Lynn M. Accardo, et al., Appellants, v. Gregory S. BROWN, Property Appraiser for Santa Rosa County, Florida, and Stan C. Nichols, Tax Collector for Santa Rosa County, Florida, Appellees.
    No. 1D10-4072.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Rehearing Denied June 20, 2011.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola; Talbot D’Al-emberte and Patsy Palmer of D’Alemberte & Palmer, PLLC, Tallahassee, for Appellants.
    Elliott Messer and Thomas M. Findley of Messer, Caparello & Self, P.A., Tallahassee; Roy Y. Andrews of Lindsay, Andrews & Leonard, P.A., Milton, for Appel-lees.
   DAVIS, J.

Appellants, those having leasehold interests in various properties located on Navarre Beach in Santa Rosa County, appeal the trial court’s Order Granting Defendants’ Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment and Entry of Final Judgment. Appellants challenge the trial court’s conclusion that because they are the equitable owners of the real property and any improvements thereon, they are subject to ad valorem property taxes. They also contend that the trial court erred in concluding that the Santa Rosa County Tax Collector has standing to challenge the constitutionality of the tax exemption at issue and that the exemption is unconstitutional. Because we agree with the trial court that Appellants are the equitable owners of both the real property and improvements and are subject to ad valorem property taxes as such, we do not reach the issue of standing or the constitutionality of the tax exemption.

The land at issue was conveyed by the United States to Escambia County in 1947 through a Deed of Conveyance, which provided that although Escambia County could lease the land for such purposes as it deemed to be in the public interest, the land was “never to be otherwise disposed of or conveyed by it-” Escambia County leased the portion of Santa Rosa Island known as Navarre Beach to Santa Rosa County for ninety-nine years with automatic renewals for additional ninety-nine-year periods. Santa Rosa County later entered into leases with private individuals for development purposes. In Straughn v. Camp, 293 So.2d 689, 694 (Fla.1974), the supreme court held that the Legislature had the power to provide for the taxing of private leaseholds on Santa Rosa Island that had been previously exempt from ad valorem taxes. Thereafter, in Williams v. Jones, 326 So.2d 425, 429 (Fla.1975), the supreme court held that the Legislature had the power constitutionally to treat leasehold interests on Santa Rosa Island as real property for ad valorem tax purposes. When the Legislature subsequently passed a special act providing for a reduction in rent to be paid by leaseholders in an amount equal to the ad valorem taxes paid on the Santa Rosa Island leasehold interests ’ during the previous year, the supreme court held that the special act was unconstitutional because it provided for an indirect exemption from ad valorem taxes that was not authorized by the Florida Constitution. See Archer v. Marshall, 355 So.2d 781, 781 (Fla.1978); see also Am Fi Inv. Corp. v. Kinney, 360 So.2d 415, 415-16 (Fla.1978).

In 1980, the Legislature enacted section 196.199(2)(b), Florida Statutes, which provides in part that a “leasehold or other interest shall be taxed only as intangible personal property ... if rental payments are due in consideration of such leasehold” and that “[i]f no rental payments are due ... the leasehold or other interest shall be taxed as real property.” In 1982 and 1983, the improvements made by the lessees on Santa Rosa Island were assessed at the full real property rate. In Bell v. Bryan, 505 So.2d 690, 691 (Fla. 1st DCA 1987), rev. denied, 513 So.2d 1060 (Fla.1987), we held that pursuant to section 196.199(2)(b), the improvements should have been taxed at the intangible personal property rate. Approximately eighteen years later, we affirmed the trial court’s ruling that the Navarre Beach leaseholders were not exempt from ad valorem property taxes pursuant to section 196.199 because they were the equitable owners of the property improvements. See Ward v. Brown, 919 So.2d 462, 463 (Fla. 1st DCA 2005), rev. denied, 923 So.2d 1165 (Fla.2006).

Following the issuance of Ward, the Santa Rosa County Property Appraiser assessed ad valorem property taxes not only on the improvements located on Appellants’ leaseholds but also on the underlying land. Appellants filed their First Amended Complaint in March 2007, seeking a declaratory judgment and an injunction. Appellants attached copies of six leases to their Complaint, explaining that those leases had provisions that were common to most of the leases at issue. Each of the attached leases was for a ninety-nine-year term, and the lessees had the option to renew for another term of ninety-nine years.

Appellees, the Santa Rosa County Property Appraiser and Tax Collector, asserted as their first affirmative defense that Appellants were subject to ad valo-rem taxation because they were the equitable owners of the underlying land and any improvements. Appellees included an Affirmative Defense of the Tax Collector, challenging the tax exemption sought by Appellants as being unconstitutional. Appellants moved to strike this affirmative defense, arguing that the Tax Collector was a ministerial public officer who lacked standing to challenge the constitutionality of statutes defining property for purposes of taxation.

Both sides subsequently moved for summary judgment. In its order, the trial court found in part:

All of the Plaintiffs’ interests at issue in this action are used for purely private purposes. The Plaintiffs enjoy the capital appreciation and rental income derived from these interests. The Plaintiffs have the right to convey their interests without restraint; they have the right to encumber their properties with mortgages; they bear all of the risks of ownership; they bear the responsibility for insurance, maintenance and repair; and they are typically responsible by the terms of their lease documents for taxes imposed upon their interests. The County, in contrast, does not does [sic] bear any of the burdens typically associated with ownership of real property.

The court noted that the only difference between the assessments at issue and the assessments in previous cases was the inclusion of raw land and land underlying improvements. The court determined that Ward dictated that Appellants were to be considered the equitable owners of the improvements and the land for ad valorem property tax purposes. It ruled that the Tax Collector had standing to challenge the constitutionality of section 196.199(2)(b) and that Appellants’ interpretation of the statute as imposing only an intangible tax upon their interests would be unconstitutional. This appeal followed.

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The standard of review is de novo. Id. In this case, the parties agree that there are no genuine issues of material fact. The issue is, therefore, whether Appellees are entitled to a judgment as a matter of law.

Appellants first argue that Bell, not Ward, controls the taxation of improvements. As stated, this Court in Bell held that the improvements on the leased property on Santa Rosa Island were subject only to intangible personal property taxes pursuant to section 196.199(2)(b). 505 So.2d at 692. Thereafter, in Ward, the majority held that the appellants were the equitable owners of the improvements and subject to ad valorem taxation by relying on several factors: (1) the appellants had the right to perpetual lease renewals; (2) they had the right to use or rent the improvements; (3) they had the right to encumber their interests; (4) they had the right to transfer their property rights; (5) they had the right to realize any appreciation in value from sale or rental income; (6) they had to insure and maintain the improvements; and (7) they were responsible for the payment of any taxes. 919 So.2d at 463. Importantly, the majority determined that Bell was not controlling because the issue of equitable ownership was not addressed therein. Id. at 464 n. 2. As such, we reject Appellants’ argument that Bell controls the taxation of the improvements. In accordance with Ward, we affirm the trial court’s order as to the ad valorem taxation of those improvements.

Turning to the taxation of the underlying property, an issue which was not addressed in Ward, Appellants first contend that the Deed of Conveyance prohibits ownership of the property at issue by private persons. While Appellants are correct, the issue presented in this case is not whether they are the legal owners of the property. Instead, the issue is whether they are the equitable owners of the property for ad valorem taxation purposes. The Deed of Conveyance has no bearing on this issue.

Appellants next assert that the underlying property is immune from taxation. See Fla. Dept. of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005) (noting that the State and counties are immune from ad valorem taxation). We reject this argument as well given that Appellants’ focus is again on the legal ownership of the property. As we stated with respect to the previous argument, the issue is whether Appellants are the equitable owners of the property for ad valorem taxation purposes. Whether Escambia County is immune from taxation has no bearing on this issue either.

With respect to equitable ownership, Appellants argue that they have no such interest in the real property. We disagree. A lessee is deemed to be the leased property’s equitable owner if the lessee holds “ ‘virtually all the benefits and burdens of ownership’ ” of the leased property. Robbins v. Mt. Sinai Med. Ctr., Inc., 748 So.2d 349, 351 (Fla. 3d DCA 1999) (citation omitted). Valid burdens and benefits that have been considered by Florida courts include a lessee’s obligation to insure, maintain, and pay taxes on the leased property along with the lessee’s option to purchase the leased property at the end of the lease term. Id.

As the trial court found in this case, Appellants enjoy the capital appreciation and rental income derived from their interests, they have the right to convey their interests without restraint, and they have the right to encumber their properties with mortgages. In addition to these benefits of ownership, Appellants bear the responsibility for insurance, maintenance and repair, and they are typically responsible by their lease terms for taxes imposed upon their interests. These factors, which the majority relied upon in Ward, apply to the taxation of the underlying property as much as they do to the property improvements. Although Appellants are correct that their leases contain no option to purchase, Escambia County is, as Appellants argue on appeal, prohibited through the Deed of Conveyance from selling the property. Thus, instead of having an option to purchase at the end of their lease terms, the majority of Appellants have the option to renew their leases for additional ninety-nine-year terms. All of these factors lead us to the conclusion that the trial court properly determined that Appellants are the equitable owners of the real property at issue for ad valorem taxation purposes. As such, the exemption found in section 196.199(2)(b) is inapplicable to Appellants. See Hialeah, Inc. v. Dade County, 490 So.2d 998, 1000 (Fla. 3d DCA 1986) (“[Property is not government owned under applicable taxing statutes where the government merely holds legal title as security and a taxpayer is the beneficial owner in equity.”).

We accordingly affirm the trial court’s order. Given the significance of the issues presented herein, we certify to the Florida Supreme Court the following as a question of great public importance:

WHETHER SECTION 196.199(2)(b), FLORIDA STATUTES, IS INAPPLICABLE TO THE REAL PROPERTY AT ISSUE BECAUSE APPELLANTS ARE THE EQUITABLE OWNERS OF THAT PROPERTY?

AFFIRMED.

WOLF AND PADOVANO, JJ., CONCUR.


text:
    Willis Renard THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1887.
    District Court of Appeal of Florida, First District.
    April 28, 2011.
    Rehearing Denied June 17, 2011.
    Willis Renard Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, THOMAS, and MARSTILLER, JJ., concur.